Thursday, November 8, 2012

Drug Dogs, Searches and Probable Cause: Updates and Additional Reading


In a recent post, I wrote about police drug dogs in two pending U.S. Supreme Court Cases. These cases consider how police use the dogs to gain probable cause for searches that would otherwise be illegal. Since I published my post, other sources have weighed in and provided some interesting perspectives. Here are some updates and links to further reading.

Drug Dog Searches, Discussion Around The Web:

Yesterday 11/7/12, Scott Greenfield did a post about these drug dog cases on his always excellent blog, Simple Justice. He cites the Radley Balko Huffington Post piece which I mentioned very briefly on Google+. Balko and Greenfield discuss, in part, the Supreme Court oral argument, which had not been held at the time of my original post. Consensus after argument seems to be that the justices might miss the boat on this one and will probably create some really bad law further authorizing these adorable pooches to bound through your house and strip search your children

Other interesting reading on the topic includes a post by Sherry Colb, Cornell Law Professor. She actually does a two part series on the cases, reviewing the relevant precedent and giving some real legal analysis. It is all much more scholarly and informative than anything that would ever grace these pages. Here is a link to part two of Colb's post, which came out yesterday.

All that analysis leads the professor to this conclusion:

"I predict that the Supreme Court will affirm the Florida Supreme Court in Jardines (house sniff) and reverse in Harris (car sniff), although I am more confident about Harris than I am about Jardines.  In Harris, I expect the Court to say that while it is important to establish that a drug-detection dog is reliable, there is no single best way to do this, and probable cause is necessarily a flexible inquiry....In the Jardines case, I think the Court may distinguish the house from other venues in which dogs may lawfully sniff for narcotics (such as cars and airports), with an emphasis on the character and duration of the officer’s (and dog’s) presence at the door."

That seems like a reasonable interpretation to me, but I am holding out hope that SCOTUS will affirm in Harris. As I understand it, at the suppression hearing, the State did not present much of a case. The prosecutor was unable to fully document the dogs training and they could not present proof that the dog was certified in detecting the substance in question. Cross examination revealed that the dog had falsely alerted in the past, even on the same defendant in the same car on another occasion, and that the dog had no way of differentiating between residual drug odors and odors of actual contraban. Under those circumstances, I think that a "neccissarily flexible inquiry" might well reveal what defense attorneys already know: drug sniffing dogs are just a rubber stamp.