Doggone it: Something smells
By A.J. Wagner
What follows is taken directly from the unanimous decision of the United States Supreme Court in the case of Florida v. Harris, which is the topic of this week’s Debate Forum on pages 6-7.
The Justices considered how a court should determine if the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must – in every case – present an exhaustive set of records, including a log of the dog’s performance in the field to establish the dog’s reliability.
The facts of the case: Officer William Wheetley was on patrol with Aldo, a German shepherd trained to detect certain narcotics. Wheetley pulled over Clayton Harris’s truck because it had an expired plate. On approaching the driver’s-side door, Wheetley saw that Harris was “visibly nervous,” unable to sit still, shaking and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder.
Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a “free air sniff.” Aldo alerted at the driver’s-side door handle – signaling, through a distinctive set of behaviors, that he smelled drugs there. Wheetley concluded, based principally on Aldo’s alert, he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. It did reveal, however, 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze and a coffee filter full of iodine crystals — all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely “cooked” methamphetamine at his house and could not go “more than a few days without using” it.
Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not given Wheetley probable cause for a search. At the hearing on that motion, Wheetley testified about both his and Aldo’s training in drug detection. Wheetley completed a 160-hour course in narcotics detection, while Aldo completed a similar 120-hour course. That same year, Aldo received a one-year certification. Wheetley and Aldo teamed up in 2005 and went through another, 40-hour refresher course. They also did four hours of training exercises each week to maintain their skills.
On cross-examination, Harris’s attorney focused on Aldo’s certification and his performance in the field. Wheetley conceded that Aldo’s certification had expired the year before he pulled Harris over. Wheetley also acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other fieldwork. Instead, he maintained records only of alerts resulting in arrests.
The Florida Supreme Court ruled that Wheetley lacked probable cause to search Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” To demonstrate a dog’s reliability, the State needed to produce a wider array of evidence: “[T]he State must present … the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts) 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.”
The Florida court particularly stressed the need for “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.” That data, the court stated, could help to expose such problems as a handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish between residual odors and actual drugs.” Accordingly, an officer like Wheetley who did not keep full records of his dog’s field performance could never have the requisite cause to think “that the dog is a reliable indicator of drugs.”
The Supreme Court of the United States held differently, ruling that because training and testing records supported Aldo’s reliability in detecting drugs and Harris failed to undermine that evidence, Wheetley had probable cause to search Harris’s truck. In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.”
To evaluate whether the State has met this practical and common-sensical standard, the U.S. Supreme Court has consistently looked to the totality of the circumstances and rejected rigid rules, bright-line tests and mechanistic inquiries.
The record in this case amply supported a determination that Aldo’s alert gave Wheetley probable cause to search the truck. The State introduced substantial evidence of Aldo’s training and his proficiency in finding drugs.
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