Drug Detection Dogs and Probable Cause
by Jack E. Call
Professor of Criminal Justice
On February 19, 2013, the United States Supreme Court handed down a long-awaited decision on whether an alert from a dog trained to detect contraband constitutes probable cause to think that contraband will be found in the place on which the dog alerted. The case, Florida v. Harris, arose in Liberty County, Florida, after Clayton Harris’ truck had been stopped by William Wheetley, a K-9 officer in the sheriff’s office. After Harris, who appeared nervous and had an open can of beer in a cup holder, refused to consent to a search of his car, Wheetley walked his dog, Aldo, around Harris’ car.
Aldo alerted on the driver’s side door handle, indicating that he detected the presence of drugs. Wheetley used Aldo’s alert as probable cause to search the trunk of Harris’ car. That search failed to uncover any drugs, but it did turn up 200 pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of anti-freeze, and a coffee filter containing iodine crystals. Since these items are typically part of a methamphetamine production operation, Wheetly arrested Harris. After advising Harris of his rights and obtaining a voluntary waiver of those rights, Harris admitted that he had been manufacturing methamphetamine at his house.
Harris was formally tried with possessing pseudoephedrine for use in manufacturing methamphetamine. Harris lost a motion to suppress the pills after arguing that Aldo’s alert did not provide probable cause to search the trunk of his car. He then pled nolo contendere but reserved the right to appeal the decision to deny his motion to suppress the pills.
On appeal, the Florida Supreme Court ruled in Harris’ favor. In finding that Officer Wheetly lacked probable cause to search Harris’ trunk, the court indicated that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause.” Instead, the court stated that the government needed to present more extensive evidence of the dog’s capabilities:
“[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 U.S. Supreme Court ruled unanimously that the stringent requirements for demonstrating the canine’s capabilities established by the Florida Supreme Court are not required by the Constitution. Justice Kagan, writing for the Court, pointed out that prior cases of the Court have made it clear that probable cause is a concept that requires reliance on an “all-things-considered,” totality of the circumstances approach. It does not lend itself to “rigid rules, bright-line tests, and mechanistic inquires” of the sort adopted by the Florida Supreme Court.
So what kind of evidence does the government need to present to establish that a drug dog is reliable enough that its alerts will establish probable cause to search or obtain a search warrant? The Court was especially concerned about the Florida Supreme Court’s emphasis on a trained dog’s record in the field. For one thing, how could a newly trained dog pass a “good-record-in-the-field” test? In addition, how could the in-the-field experience demonstrate that a dog was frequently failing to detect the presence of contraband? Seldom would a dog’s handlers become aware that a dog had failed to alert when drugs had been present. On the other hand, an alert that fails to reveal drugs is not necessarily a false hit. “The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate.”
Rather, the strongest evidence of competence comes from “controlled testing environments.” Justice Kagan indicated that
“evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.”
Two things are noteworthy about this language. First, the Court has made it clear that while drug training of a dog by some outside entity that certifies the dog’s competence is highly probative of the dog’s capabilities, it is not the only way to prove those capabilities. A department could have its own training program. In either instance, proof needs to be presented that the dog has demonstrated its capabilities, almost certainly in controlled testing.
The second aspect of the quote above that is noteworthy is the Court’s use of the word “presume.” In the law, a presumption is what lawyers call a burden-shifting device. It means that where Fact A is in question, proof of Fact B is sufficient to prove Fact A and shifts the burden to the other party to disprove Fact A. Fact A in the drug sniff cases is whether the dog is sufficiently reliable that its alerts establish probable cause to search. Fact B is proof that the dog has demonstrated its competence through training and a series of controlled tests.
Thus, when the prosecution proves that a dog has gone through adequate training successfully, that constitutes sufficient proof that the dog is reliable enough that its alerts constitute probable cause to search and shifts the burden to the defendant to demonstrate that the dog is either not generally reliable or was not reliable in this particular instance. The Court was crystal clear about this:
“If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.”
Thus, the lessons for the law enforcement community are clear. A department may train a dog itself or have an outside partner do the training. Either way, good records should be kept of the dog’s performance in controlled tests. (This case does not establish the actual record of performance that is necessary to demonstrate reliability; that is an issue for future cases).
Although the Court did not specifically say it was necessary, it is unquestionably desirable also to continually retrain a dog and, again, keep good records of what test were done to demonstrate the dog’s continued reliability. In the Harris case, for example, Aldo had received 120 hours of initial training (with a different handler), 40 hours of refresher training a year later with Wheetly, and four hours of weekly training.
Harris is an important case for the law enforcement community. The case makes it clear that the extensive and onerous demonstrations of reliability required by the Florida Supreme Court are not necessary. It is equally clear that the key to winning these cases for the prosecution and police is an ability to demonstrate that a dog has proved itself to be reliable in controlled settings. It seems likely that once a dog has demonstrated this reliability to the satisfaction of local judges, it will be futile for a defense attorney to attack the dog’s alert in a particular case unless the attorney can demonstrate that there was something about that particular case that calls the reliability of the alert into question (such as actions by the dog’s handler that appeared to be prompting the dog to alert).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.