Florida v. Harris: Put Sparky on the Stand

Our fair state made legal news today with the US Supreme Court’s decision in Florida v. Harris (pdf).

Harris addresses the question of when, in the words of Justice Kagan, the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle.

The Florida Supreme Court had ruled, in Harris v. Florida (2011):

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle.

Overturning this ruling, the US Supreme Court ruled yesterday that this standard was too strict:

[T]he decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.

In other words, it’s too difficult for the government to prove that the dog is actually reliable because they make too many mistakes. SCOTUS prefers a “flexible, common-sense standard” of probable cause. In other words, one that offers little if any assurance that the search is appropriate.

I had the pleasure of handling a probable cause hearing in a dog sniff case several years ago. The marijuana was in vacuum-sealed packages which were inside sealed zip lock bags, which were themselves inside a closed garbage bag. And all of this was in the trunk of a Mercedes for about 10 minutes before the vehicle was stopped. Somehow the odor of marijuana managed to get through all of that in 10 minutes. Or did it? The dog alerted to the front passenger door of the car, and not to the trunk. That’s not even close to where the drugs were found.

This points to the larger problem – it’s not the dog, but rather the police officer handling it. What assurances are there that the officer is not lying, or otherwise manipulating the dog to get the result he wants? The Court offers no such safeguards, such as the field records required by the Florida Supreme Court. What regular people don’t know is that police lie in court, and they lie a lot. Some complain about a thin blue line where police officers protect each other. The line is not so thin. Prosecutors and judges also protect lying cops. Even though the problem of testilying is well-known, it’s extremely rare to read a judicial decision where a judge rules for the defense because the police testimony was not credible. And now today we can see yet again that the blue line is wide enough to include the US Supreme Court. Thanks SCOTUS.

Personally I prefer a more entertaining approach. The police should be required to put Sparky on the witness stand. I don’t have demanding standards – we ask Sparky yes/no questions and he answers with one woof for yes and two woofs for no.