That Dog Will Hunt – SCOTUS Rules That Government Need Not Demonstrate Record Of Accuracy Of Sniffing Dogs In The Field For Probable Cause

Posted On Monday, March 4, 2013

More than a few observers have made note of the increased use of so-called “blue collar” investigative techniques in white collar matters.  The most prominent instances of this practice recently have been the high profile insider trading prosecutions, which saw wide-spread use of confidential informants, wire taps and targeted searches.

These cases indicate the need for white collar practitioners to stay abreast of developments in precedent on 4th Amendment issues.  The U.S. Supreme Court’s recent pronouncement on this front came in, of all circumstances, what was essentially a challenge to the qualifications of a drug sniffing dog named Aldo.  While we don’t see the prospect of dogs descending on Wall Street anytime soon, the U.S. Supreme Court’s holding in Florida v. Harris, No. 11-817 (February 19, 2013), is worth reviewing. 

In Harris, the Supreme Court held that the state doesn’t have to present detailed records showing that a drug-sniffing dog has a history of accurately detecting the presence of drugs while on the job in order to demonstrate that probable cause existed for a search.  The case below centered on the traffic stop of Clayton Harris by K-9 officer, William Wheetley, because Harris had an expired license plate.  Wheetley observed that Harris was visibly nervous and that there was an open can of beer in the cup holder of the automobile.  Wheetley asked for and was denied permission to search the vehicle.  Wheetley then retrieved his canine, Aldo, from his patrol car and walked Aldo around the truck.  Aldo indicated that he smelled drugs on the driver’s side door handle.  Based principally on Aldo’s alert, Wheetley decided that he had probable cause to search the vehicle.  No drugs were found.  However, the ingredients for making methamphetamine, including pseudoephedrine, were located.

Harris subsequently admitted that he manufactured and used methamphetamine.  He was then charged with possessing pseudoephedrine for use in manufacturing methamphetamine.  Unfortunately for Mr. Harris that was not the end of his difficulties, as he continued to be “dogged” by Wheetley and Aldo.  Specifically, while on bail, Harris was stopped by Wheetley again.  Aldo again alerted to the presence of drugs on the driver’s side door handle but nothing of interest was found during the search. 

Harris moved to supress evidence found during the search of his car on the grounds that Aldo’s alert did not provide probable cause.  At the hearing, Wheetley testified about the training he and Aldo had received in drug detection.  He also testified that he would hide drugs in certain buildings and vehicles and that Aldo did well on these tests.  The state also introduced training logs showing that Aldo always found hidden drugs and performed “satisfactorily” (the higher of two possible assessments) on each day of training.  Harris didn’t challenge Wheetley’s or Aldo’s training.  Rather, he focused on Aldo’s certification and performance in the field.  Wheetley conceded that Aldo’s certification had expired the year before the search and that he didn’t keep complete records of how Aldo performed while on patrol.

Justice Kagan, writing for a unanimous Court, went on to emphasize that probable cause is a fluid concept, turning on an evaluation of probabilities given the particular facts facing the officer.

The trial court concluded that Wheetley had probable cause for a search and denied the motion to suppress.  However, the Florida Supreme Court reversed.  In its decision, the Florida Supreme Court stressed the need for evidence of the dog’s performance history, including records showing how often the dog alerted in the field without illegal contraband being found.  Only if an officer kept complete records of his dog’s field performance would he or she have reason to believe that the dog was a reliable indicator of the presence of drugs.

In reviewing the matter, the Supreme Court noted that a police officer has probable cause to conduct a search when the facts available to him or her would warrant a reasonable person of reasonable caution to believe that contraband or evidence of a crime is present.  Justice Kagan, writing for a unanimous Court, went on to emphasize that probable cause is a fluid concept, turning on an evaluation of probabilities given the particular facts facing the officer.  Based on this reasoning, the Court held that the Florida court violated this principle by creating a list of factors which must be met – most particularly, detailed records regarding a dog’s performance in the field – in order for a dog’s alert to provide probable cause for a search.

The Court noted that the fact that drugs aren’t found following a search doesn’t mean that the dog was wrong.  Rather, the officer may have failed to find the drugs because they were too well-hidden or present in amounts too small for the officer to locate.  The dog could have also been reacting to the fact that drugs had previously been present in the vehicle.  Additionally, an officer won’t know if a dog failed to alert where drugs were actually present because a search won’t take place.

It stated that these problems don’t exist where controlled tests are being performed because the people performing the tests will know where the drugs are and when the dog should alert.  Therefore, evidence of a dog’s satisfactory performance during a testing program can provide sufficient reason to believe that the dog is reliable.  However, a defendant can challenge the adequacy of the testing program.  Additionally, even if a dog is generally trustworthy, a defendant can try to show that the circumstances surrounding a particular stop indicate that the dog’s alert wasn’t enough to create probable cause – for instance, if there is evidence that the officer did something to cause the dog to indicate that it detected the presence of drugs.

The Court ultimately concluded that the evidence presented regarding Aldo’s training and his ability to find drugs was enough to establish that he was reliable and his alert provided probable cause for the search of Harris’ vehicle.

A complete copy of the Court’s opinion can be found here: