Tuesday, October 30, 2012

Furry Little Boot Straps: Drug Dogs in Court

A Dog sniffs a car
I Smell Probable Cause!
Drug dogs are problem solvers. The problem they solve is that police need probable cause to search things. Probable cause is not a lot, but it does mean that that there must be a fair probability that contraban will be found in a place. Police often have a hunch that a search will uncover drugs, but that is not enough. What they need is that sweet probable cause.

So for a long time, police have relied on drug sniffing dogs to justify searches. Previous supreme court cases (like Illinois v. Caballes) have determined that a dog sniff is not a search and so police do not need probable cause for the dog to sniff the outside of a container, like a car. The beauty is that if the dog "alerts" to a drug odor, that's enough to give probable cause for a full search. But drug dogs suck at finding drugs and their "alerts" are unreliable. It all probably has more to do with cues from the handler and their interpretation of the dogs actions. In reality, dogs function more as a magic wand that police can waive at things they want to look inside.

Studies show that Drug Dogs can't reliably detect drugs

Defense attorneys have known for a long time that drugs dogs are bogus and recent studies have really brought it home:

A Study Conducted by the Chicago Tribune reviewed years of records and found that drug dog alerts lead to discovery of drugs between 27-44% of the time. Not exactly a "fair probability" unless, by fair probability, you mean: "about half as accurate as flipping a coin."

An even more telling UC Davis Study tested 18 dogs and their handlers. They did searches in four experimental rooms for a total of 144 runs. In some of the test rooms, there were locations marked by construction paper and handlers were told that the paper marked contraban. The thing is, there was no contraban in any of the locations in any of the rooms.

Obviously, there should have been zero "alerts" to the presence of contraban. That's not what happened. In the study, dogs alerted 225 times over the 144 runs. It's not as if one or two dogs spoiled the whole bunch. In fact only one of the 18 dogs did not alert in any of the tests and the other 17 alerted at least once in almost every run.

U.S. Supreme Court will Hear Oral Argument in Drug Dog Cases.

And so the U.S. Supreme Court is set to consider Drug Dogs in two cases: Florida v. Jardines and Florida v. Harris (scotus blog links) with oral arguments set for 10/31/12. The Court will consider if and when a drug dog alert should be enough to support a warrantless search of a car, and whether a dog sniff of a persons residence is a "search" which must be justified by probable cause and a warrant.

In Harris (FL opinion), an officer pulled the defendant over and had his dog sniff the exterior of the car. Once the dog alerted, the officer searched the car and found Pseudoephedrine pills. At the suppression hearing, the defense attorney questioned the dog's training, certification and showed that, on other occasions, the dog had alerted for drugs where no drugs were found. The state argued that, even in cases where no drugs were found, the alert was to residual drug odor and so it's not really a false alert at all.

In suppressing the search, the Florida Supreme court reasoned that: "a dog's inability to distinguish between residual odors and actual drugs undermines a finding of probable cause." The Court held that the State must prove the dog's reliability. Since they failed to do that in Harris the alert then failed to establish probable cause, and the resulting search was illegal.

In Jardines (FL opinion), police had a tip that the defendant was growing Marijuana. They went to Jardines home with no warrant because they did not yet have probable cause for one. Once there, police took a drug dog onto the porch so he could sniff around. The dog sniffed and sat down, which was an alert for drugs. Police used that alert as the basis for probable cause to get a warrant. They returned with a warrant to search the house and found drugs.

The Florida Supreme Court Ruled that sniffing at the front door "was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment." They threw out the warrant since the probable cause supporting it was based on unconstitutional police action.

What's Going to Happen?

Maybe the Supreme court is going to develop some good law for the defense, but maybe not. The Florida court already decided these cases in the defendant's favor, so why would the Supreme Court take them unless they want to reverse? On the other hand, the prior cases don't establish any clear tests or rules for what training, certification and reliability a dog must have in order to properly establish probable cause. Maybe the court wants to announce clear, national standards for K9 training and record keeping. Or maybe they want to decide that dog sniffs are searches and must themselves be justified by Probable Cause.

The existing state of the law is troubling since it allows the drug dog, an historically unreliable agent that can't be cross examined, to authorize otherwise illegal searches. One might say, "hey they found drugs in both cases, the dogs work and we should let the evidence in." The problem with this thinking is that only the cases where drugs are found get into the legal system. We will never have an appeal in a case where police, emboldened by dog sniffs, tore apart a home and found nothing. And if the reliability studies are any guide, cases where police find drugs are probably just the tip of the iceberg.

UPDATE: A newer post covers some further discussion of these cases.

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