Reliability of Police Drug Dogs – Decided
When will a police drug dogs alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the vehicle? In reality (on the street), every time.
The U.S. Supreme Court unanimously (9-0) decided Harris v. Florida on February 19, 2013. When addressing the issue of reliability in police dogs Justice Kagan wrote “A sniff is up to snuff when it meets that test.”
What test? The common sensical approach of the totality-of-the-circumstances analysis.
Given this decision, it’s hard to imagine a scenario where police will not have probable cause to conduct a warrantless search of a vehicle when they claim their trained police drug dog alerted to an odor outside the vehicle.
False positives in the field (real world) not dispositive
Justice Kagan wrote that if a dog alerts to a car where the officer finds no narcotics, the dog may not have made a mistake… the dog may have smelled the residual odor of drugs previously in the vehicle or on the drivers person or the substances were too well hidden or present in quantities too small for the officer to locate.
What about the scenario where a dog alerts to cocaine residue on U.S. currency, where numerous studies have indicated that up to 85-90% of U.S. currency contains trace amounts of cocaine residue, whether it got there through direct contact or transferred from other notes. This point was never mentioned in arguments but the scenario is not hard to imagine given the scientific data.
The Court’s response to false alerts in the field was because of these unverified assumptions (no records of alerts where no drugs located), field data may overstate a dogs false positives. The court asserted the better measure of a dog’s reliability is in the controlled testing environment of training and certification where police know if the dog is making a false positive, providing sufficient reason to trust the dogs alert.
The cornerstone of the fourth Amendment is reasonableness of government intrusion. In Harris the police asserted the K-9 alerted to s specific type of drug it was trained to detect however, that drug was not located in the vehicle. In a separate vehicle stop involving the same defendant, after this incident, the dog alerted again but this time the police recovered no evidence of drugs following another warrantless search. Is it reasonable to allow this practice to continue without more, given the data out their regarding the unreliability of police dogs.
Police cuing the dog
A police drug dog alert may undermine the case for probable cause – if say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar circumstances. In reality, unless they are going to require video recording of K-9 sniff’s, evidence of the handler cueing the dog will never be an issue. Sure you can place an expert on the stand in the procedure of handling a drug dog and you can even cross-examine the officer involved but he or she is not going to admit to cuing the dog to alert unless they want to destroy the case and commit career suicide.
The police practice of search incident to arrest in vehicle stop cases under Arizona v. Gant was a breath of fresh air to proponents of the Fourth Amendment restrictions on government action. In Harris, the U.S. Supreme Court was strong in its language of how the Florida Supreme Court flouted the established approach of determining probable cause.
This was a missed opportunity by the U.S. Court, not necessarily to require such a strict evidentiary checklist asserted by the Florida Supreme Court but to address the well documented problems of unreliability of drug K-9’s in the war on drugs. By establishing some additional minimal requirements in the face of the statistical problems of using animals instead of humans to establish probable cause, the Court could have served the purpose of the Fourth Amendments cornerstone requirement of reasonableness.
For now, if a dog alerts during a traffic stop, your going to be subject to a warrantless search.