DRUG SNIFFING DOG BACKED BY SUPREME COURT

What is surprising about this ruling is that liberal Justice Elena Kagan wrote the decision.

HIGH COURT RULES THAT DOG’S SNIFF WAS UP TO SNUFF IN ROADSIDE SEARCH
Signal from a properly trained drug-detecting dog is enough to establish probable cause for a warrantless search of a vehicle during a roadside stop

By Warren Richey

The Christian Science Monitor
February 19, 2013

The US Supreme Court on Tuesday tackled the tricky issue of when a sniff from a drug-detecting dog is up to constitutional snuff.

At issue in the case, Florida v. Harris, was whether a deputy sheriff in Florida's Liberty County acted properly in June 2006 when he initiated a warrantless search of a pickup truck after his drug-detecting dog signaled that it sensed the presence of illicit narcotics.

No drugs were found, but the sheriff's deputy discovered key ingredients to make methamphetamine. The driver, Clayton Harris, was charged with unlawful possession of 200 pseudoephedrine pills for use in manufacturing methamphetamine.

Mr. Harris admitted he was addicted to methamphetamine and that he regularly prepared and used it in his home.

A few weeks later, after being released on bond, Harris was pulled again by the same deputy sheriff working with the same drug-sniffing dog, Aldo.

Again, Aldo signaled or "alerted" the deputy that he sensed the presence of illicit narcotics in Harris's truck. The deputy searched the truck, and found only an open bottle of liquor, but no drugs.

Harris's lawyer challenged the lawfulness of the deputy's warrantless searches of the pickup truck. The lawyer questioned Aldo's reliability, suggesting that the warrantless searches were improper because Aldo had obviously been mistaken about the presence of drugs.

The trial judge upheld the lawfulness of the search, but the Florida Supreme Court reversed. The state high court held that the deputy lacked the necessary probable cause to search the pickup truck without first obtaining a court-issued warrant.

The Florida Supreme Court ruled that K-9 officers in Florida must be able to present evidence of a dog's performance in the field, including how often the dog had signaled the presence of drugs when none were found.

"The fact that a dog has been certified and trained is simply not enough to establish probable cause," the Florida high court said.

On Tuesday, the US Supreme Court reversed that decision, ruling 9 to 0 that a signal from a properly trained drug-detecting dog would be enough to establish probable cause for a law enforcement officer to undertake a warrantless search of a vehicle during a roadside stop.

Writing for the court, Justice Elena Kagan said the legal standard for the establishment of probable cause was "practical and common-sensical," rather than the rigid and precise requirements imposed by the Florida high court.

"All we have required," Justice Kagan wrote, "is the kind of 'fair probability' on which reasonable and prudent people, not legal technicians, act."

She added: "The Florida Supreme Court flouted this established approach to determining probable cause."

Kagan said the Florida judges assumed that Aldo's signaling the scent of drugs in Harris's pickup truck where none were found was a mistake by the dog. But she said the dog's nose is capable of sensing residual odors of narcotics and that it was no mistake.

"The Florida Supreme Court treated a dog's response to residual odor as an error, referring to the 'inability to distinguish between (such) odors and actual drugs' as a factor that calls into question Aldo's reliability," Kagan wrote.

"But that statement reflects a misunderstanding," she said. "A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone."

"In the usual case, the mere chance that the substance might no longer be at the location does not matter; a well-trained dog's alert establishes a fair probability — all that is required for probable cause — that either drugs or evidence of a drug crime will be found," Kagan said.

The justice added that the better measure of a dog's reliability is not what happens in the field but how the dog performs in controlled testing environments where the testers know when drugs are present and when they are not.

"For that reason, evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert," Kagan said.

"The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime," the justice said.

"A sniff is up to snuff when it meets that test," she added.

The case is No. 11-817 and the decision came in one of two dog-sniff cases heard by the justices on Oct. 31.

The other case, Florida v. Jardines (11-564), raised the question of whether police acted properly when they led a drug-sniffing dog to the front door of a house suspected of being used to grow marijuana. The justices did not release the decision in that case on Tuesday. There is no indication when that decision may be announced.