SCOTUS Drug Dog Cases: Horror in Harris, Joy in Jardines

The United States Supreme Court has ruled on two drug dog cases in the last few weeks: Florida v. Harris and Florida v. Jardines. The Florida Supreme Court suppressed Drug Dog searches in both cases. In Harris, the U.S. Supreme Court reversed with a particularly troubling opinion. In Jardines, they affirmed and the opinion might actually expand some fourth amendment protections.

I wrote about these cases before they were decided and you can review those posts for more discussion of the factual and legal background:

• Furry Little Boot Straps: Drug Dogs in Court
• Drug Dogs, Searches and Probable Cause: Updates and Additional Reading

Florida v. Harris: Drug Dog Reliability

An officer pulled Clayton Harris over for an expired license plate. He would not consent to a search and so the officer had his drug dog, Aldo, sniff the exterior of the car. The dog alerted and that developed probable cause for a search which produced pseudoephedrine pills, 8000 matches and muriatic acid. These are precursors to methamphetamine, but no illegal drugs or chemicals were found.

At the suppression hearing the evidence proved that the dog was trained in detecting illegal drugs but not in detecting cold medicine. The dog had once been certified, but that had expired. The handling officer testified that he kept records of the dog's performance but only documented cases were drugs were found. He did not record incidents where no arrest was made so the records showed a 100% success rate. The defense attorney introduced evidence that the same officer had stopped Clayton Harris on a second occasion two months after the stop leading to these charges. On that day, Aldo sniffed, alerted and the car was searched, but no drugs were found. The state argued that even in cases where no drugs are found, the alert is only given if the dog detects a drug order. Therefore, the alert was not a false positive but must have been to a residual drug odor.

The Florida Opinion

The Florida Supreme Court held that, since the state has the burden of establishing probable cause, they "must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog." That means the prosecution must:

1. Explain the dog's training and keep records of false alerts in training.
2. Keep and present records of the dog's verified and unverified alerts in the field.
3. Present evidence explaining the significance of any unverified alerts.
4. Explain the dog's ability to distinguish residual odors from actual drug odors.
5. Demonstrate that the officer is sufficiently trained and experienced to handle the dog.

The Florida Court reasoned that to resolve these questions, the Judge must consider the totality of the circumstances. At minimum, evidence should address these enumerated issues so the court can properly evaluate the dog's reliability and whether an alert leads to probable cause. p.771. The Florida court ruled that, under the totality of the circumstances developed at Harris' suppression hearing, the State failed to establish reliability and hence, probable cause.

The U.S. Supreme Court Horror-show Opinion

The United States Supreme Court reversed in a unanimous decision. There are a few utterly horrifying portions all from section II of Kagan's opinion:

First, they totally bought the "there are no false alerts, only residual odors" line of crap:

if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person.

Second, they reason that a dog's lousy field performance says nothing about reliability since the real world's a difficult place. Better to trust the police dog's training:

Field data thus may markedly overstate a dog's real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog's performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not. The better measure of a dog's reliability thus comes away from the field, in controlled testing environments.

Third, training, OR certification is now enough to develop a presumption that the alert equals probable cause:

For that reason, 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.

But worst of all, and most tellingly, this is all based on a fundamental misunderstanding of how criminal investigation works:

After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.

Well that just makes sense, who better to police the police than the police themselves? I mean, who could imagine any reason a cop would want to use a device that's prone to false positives and automatically creates probable cause for otherwise illegal searches? Keep in mind that the device can't be cross examined and the officer need not document its track record. If this "judges should just trust the incentives created by the system" line of reasoning gains any traction in other areas of criminal law, we should all brace ourselves for an avalanche of shitty law.

Florida v. Jardines: It's About Property Rights

Police got a tip that Joelis Jardines was growing marijuana. They went to the home with no warrant because they did not have probable cause for one. Once there, police took a drug dog onto the porch so he could sniff around. The dog alerted to drug odor on the porch and at the bottom of the front door. Police used that alert as the basis for probable cause to get a warrant. They returned to search the house and found marijuana cultivation.

The Florida Opinion

The Florida Supreme Court did a pretty detailed review of the relevant case law. They held that, even though a dog sniff alone does not usually implicate fourth amendment concerns, and even though the police did not cross the threshold into the home, the particular facts here amounted to an illegal search.

Given the special status accorded a citizen's home in Anglo-American jurisprudence, we hold that the warrantless "sniff test" that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment. p. 55-56

U.S. Supreme Court Affirms

The 5-4 decision affirms the Florida Supreme court. Florida's attorney argued that the Police and drug dog only accessed the public area on the porch where the mailman is licensed to stand. Still, the court found that releasing the hounds was too much:

introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that...The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search. Slip p. 7.

It is important to understand what the holding here does not say. It is not about an expectation of privacy in the odors coming from under the door:

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. Slip p. 9.

The case then is about the vantage from which the information is gathered, not the expectation of privacy in that information. Jardines is importantly distingushable from Kyllo v. United States since that case presents the oposite senario. There police, with no probable cause, stood at a legal vantage and observed a home using an infrared camera. The Kyllo Court found the conduct illegal since a search occurs when “the Government uses a device that is not in general public use” to “explore details of the home that would previously have been unknowable without physical intrusion.” Kyllo p. 40.

The State in Jardines argued that the dog is an ancient companion, not a high tech camera, and so using it does not constitute a search. The Majority rejected that notion since Jardines involved an actual physical intrusion:

when the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant...The government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. Slip p. 10. 

It sounds good but the majority opinion leaves a lot of questions unanswered:

1. Does the dog have anything to do with it?
2. Is all information gathered from a publicly accessible area, which is physically on a person's property, a search?
3. If the "antiquity of the tools" is irrelevant what about human senses? If the cop goes on the porch intending to check for illegal activity, sniffs the door and smells marijuana (they did in this case) is that a search?

Jardines has the potential to expand fourth amendment protections in some important ways. If read in conjunction with United States v. Jones and applied expansively this "trespass is a search" rational will fundamentally change the definition of "search."  I expect that we will see a lot of lawyers try to do just that in the coming months. It might be years before we really understand the full impact of the decision and by then, the Supreme Court may feel the pressure to roll back the expansion.