“Probable Cause On A Leash”

-Submitted by David Drumm (Nal), Guest Blogger

500px-Seal_of_the_United_States_Supreme_CourtThe United States Supreme Court recently issued a unanimous (9-0) decision in Florida v. Harris (2013) that deals with probable cause and drug detection dogs. The Court overturned the Florida Supreme Court ruling (pdf) and held that the police officer had probable cause, based on the dog’s reliability, to search Harris’s truck. The Court also held that: “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, the court should find probable cause.”

When testing a dog’s detection reliability in a “controlled setting,” a key factor would be whether the test is double-blind. That is, neither the dog and the handler know where the drugs are hidden. As is often the case however, it is the handler that designs the test and the handler will cue the dog.  Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities, notes the handler “can’t help” but cue the dog and skew the training.

The unconscious cueing of animals is known as the “Clever Hans Effect.” Clever Hans fascinated audiences solving mathematical problems by stomping its front hooves. An investigation determined that the horse was responding to subtle, subconscious cues from its handler to indicate when to start stomping and when to stop.Clever Hans

In a UC Davis study, researchers found that “detection-dog/handler teams erroneously ‘alerted,’ or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.” Even the best trained nose can be impacted by the handler. Anita M. Oberbauer, chair of the Department of Animal Science and the study’s senior author, said: “Dogs are exceptionally keen at interpreting subtle cues, so handlers need to be cognizant of that to optimize the overall team performance.”

Of course that implies that the handler wants to optimize the overall performance. Police have strong incentives to use a drug detection dog that alerts promiscuously. Asset forfeitures are a powerful incentive for cash-strapped police departments. When an officer’s performance reviews and potential promotion are based, in part, on the number of drug busts and drug seizures made, and the use of a dog prone to false positives is to an officer’s personal advantage.

K-9 teams use many tricks to conceal the dog’s supposed “alerts.” If the scene is being videotaped by a police dash-cam, the officer will stand between the camera and the dog, or take the dog to the front of the suspect vehicle where the dog is out-of-sight. Many police departments has stopped recording K-9 teams because “the dogs don’t alert when the cops say they alert.” Handlers also use excessive verbal encouragement and lavish praise to get the dog to respond.

An investigation of three years of data by the Chicago Tribune found that: “only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.” When considering Hispanic drivers, the success rate fell to 27 percent. Justice Kagan, writing the opinion of the Court, noted that in such cases, “the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.” Such an hypothetical claim is a little too convenient and should raise suspicions about its validity. According to J. Kagan, a dog’s alert “establishes a fair probability—all that is required for probable cause—that either drugs or evidence of a drug crime … will be found.”

The Supreme Court is set to decide Florida v. Jardines, a case involving a drug detecting dog that was brought up to the front door of Jandines’s home. The dog sniffed around the front door for a minute or two and the officer claimed that the dog alerted. Based on the dog’s alert, a search warrant was obtained. The Florida Supreme Court determined that the search was illegal because the dog’s inspection of the front door was an illegal search. Keep your fingers crossed.

H/T: Radley Balko, Jacob Sullum, Julian Sanchez, Orin Kerr, Jacob Sullum.

76 thoughts on ““Probable Cause On A Leash””

  1. Double blind does not mean “neither the dog or the handler know where it is”! That is single blind. Double blind means that NO ONE in the test environment knows where it is. The person who hid the target odor is not present during the test for ANYONE (dog, handler or evaluator) to take cues off of. OMG…..I cannot believe the author even wrote that, that is BASIC SCIENCE people!

  2. The U.S. Supreme Court: Architects of the American Police State

    By John W. Whitehead

    February 25, 2013


    “The unspoken power dynamics in a police/civilian encounter will generally favor the police, unless the civilian is a local sports hero, the mayor, or a giant who is impervious to bullets.”—Journalist Justin Peters

    From time to time throughout history, individuals have been subjected to charges (and eventual punishment) by accusers whose testimony was treated as infallible and inerrant. Once again, we find ourselves repeating history, only this time, it’s the police whose testimony is too often considered beyond reproach and whose accusations have the power to render one’s life over.

    In the police state being erected around us, the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts. Making matters worse, however, police dogs—cute, furry, tail-wagging mascots with a badge—have now been elevated to the ranks of inerrant, infallible sanctimonious accusers with the power of the state behind them. This is largely due to the U.S. Supreme Court’s recent ruling in Florida v. Harris, in which a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine.

    This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound, in which a unanimous Supreme Court determined that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops, comes on the heels of recent decisions by the Court that give police the green light to taser defenseless motorists, strip search non-violent suspects arrested for minor incidents, and break down people’s front doors without evidence that they have done anything wrong.

    These are the hallmarks of the emerging American police state, where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens. Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, in a police state such as ours, these instances of abuse are not condemned by the government. Rather, they are continually validated by a judicial system that kowtows to every police demand, no matter how unjust, no matter how in opposition to the Constitution.

    The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

    In Florida v. Harris, for example, the Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Aldo allegedly alerted to the door handle of Harris’ car, leading Wheetley to search the vehicle.

    Although the search of Harris’ car did not turn up any of the drugs which Aldo was actually trained to detect, such as marijuana, Wheetley found pseudophedrine, a common ingredient in cold medicine, and other materials allegedly used in the manufacture of methamphetamine. Harris was arrested and released on bail, during which time he was again stopped by Officer Wheetley and again subjected to a warrantless search of his vehicle based upon Aldo’s alert, but this time Wheetley found nothing.

    Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. The Florida Supreme Court agreed, ruling that police should be able to prove that the dog actually has a track record of finding drugs while in the field before it is used as an excuse for a warrantless search.

    Unfortunately, the U.S. Supreme Court did not see it that way. In reversing the Florida Supreme Court’s ruling, the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

    The Supreme Court’s decision is particularly alarming when one considers that drug-sniffing dogs, even expertly trained dogs with reliable handlers, are rarely accurate. One study demonstrated that dogs were incorrect in drug identification up to 60% of the time. A 2011 study published in Animal Cognition involved a series of tests, some designed to fool the dog and some designed to fool the handler. The dogs in these tests falsely alerted 123 out of a total of 144 times. When a test was designed to fool the handler rather than the dog, the dog was twice as likely to falsely alert.

    As the Animal Cognition study shows, dogs are heavily influenced by the behavior and biases of their handlers. If an officer thinks he is likely to find something, whether due to personal bias or because he finds the suspect suspicious, he often cues his dog—consciously or unconsciously—to alert on the area to be searched.

    Despite being presented with numerous reports documenting flaws in the use of drug-detection dogs, the U.S. Supreme Court opted to ignore plentiful evidence that drug dog alerts are specious at best. Moreover, the justices also chose to interpret Aldo’s failure to detect any of the drugs he was trained to find during the two sniff searches around Harris’ car as proof of Aldo’s superior sniffing skills rather than glaring proof that drug-sniffing dogs do make mistakes. Incredibly, the Court suggested that the dog alert was due to Aldo having smelled an odor that was transferred to the car door after the defendant used methamphetamine—a supposition that is nearly impossible to prove.

    Law enforcement officials have come up with a slew of clever excuses to “explain” the not uncommon phenomenon of dogs that alert but fail to uncover drugs. For example, in 2008, U.S. border patrol agent Christopher Jbara claimed that a dog alerted to a car containing no drugs because the car’s window “had been washed by a window washer on the street… and the water used to clean it could have been contaminated with bong water.” The real reason may be that the odors which dogs are trained to detect are simply chemical compositions found in a number of common products. For example, to a dog, perfume may smell like cocaine, glue may smell like heroin, and mosquito repellant may smell like the drug ecstasy.

    Unfortunately, the Supreme Court’s decision is merely the latest in a long line of abuses justified by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution. For example, in 2011, the U.S. Supreme Court ruled 8-1 in Kentucky v. King that police may smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed. Despite the fact that police busted in on the wrong suspect in the wrong apartment, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered.

    In April 2012, a divided Supreme Court ruled in Florence v. Burlington that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials, which involves exposing the genitals and the buttocks.

    This “license to probe” is being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches without any evidence of wrongdoing and without a warrant. For example, Angel Dobbs and her niece, who were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window, were subjected to roadside cavity searches of their anus and vagina. The officer claimed to be searching for marijuana. No marijuana was found.

    With case after case stacking up in which the courts empower the police to run roughshod over citizens’ rights, the Constitution be damned, the outlook is decidedly grim. In fact, the U.S. Supreme Court still has to rule on another drug-sniffing, dog-related case, Florida v. Jardines, which challenges warrantless searches of individuals’ homes based on questionable dog alerts. For those hoping that our rights will be restored or at least protected, you could have a long wait.

    Indeed, the next decision from the Supreme Court might just take the Fourth Amendment down for the count.

  3. Raff, that is a good thing actually. But regardless I truly think fear is a major part of it. Answer this. What do you think would happen if they said everyone had to turn in every gun they owned tomorrow. If you answer anything other than immediate ‘Revolution’, you have guessed incorrectly.

  4. GMason,
    I think the reason the 2nd amendment is harder to restrict is the lobbying forces against it.

  5. The issue with the opinion is neither the reliance on hearsay, nor the inability to cross-examine the dog. The legal issue is the reasonableness of the officer’s reliance on the dog. This opinion basically creates a test which rewards law enforcement for failing to generate and provide evidence which might establish that such reliance was unreasonable, but as to any dog the information will not be available from any other source. The suggestion that the searching officer’s own training of the dog (which involved the officer hiding materials and then using the dog to find them) has any value at all in this analysis is ludicrous.

  6. Also everyone please keep in mind, the 2nd Amendment is the entire reason that our freedoms even lasted this long to begin with.

    Keep that in mind the next time you advocate any sort of gun control

    “Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.”
    James Madison

  7. raff, SCOTUS is increasingly ruling against the Bill of Rights as a whole. The biggest reason the 2nd is not messed with quite as much by either SCOTUS or Congress is because they know that if they attempt to ‘grab guns’ that they will probably be reaching for them… with the barrels pointed at them.
    Personally I think we are about to reach that stage anyways. The erosion of rights has gone past the breaking point. We have lost far too much already

  8. It is interesting to me that when it comes to attacking the First or Fourth Amendments to the Constitution, the judges have no problem or hesitancy to chip away at their protections. If that is true, why do the protections of the Second Amendment seem so sacred? Aren’t Free Speech zones and decisions that strip away the need for a warrant just as onerous as reasonable gun control?

  9. Wonderful article nal…. I saw a or read a piece that dogs can be trained to give false positives scents…. It’s all in how the handler trains them… Pretty much like the Utah troopers arrest…. Until challenged… They stand….

  10. Idealist is right-on. I can see a case arising where blind guy named Donald and his guide dog say one thing about pot being in the car and LEO and his k-9 say another thing and its the k-9’s word that trumps Donald. Only in NY.

  11. This place is popular. Rolling down from the blog…..past the comments.

    Dog trainer will give signals unconsciously of presence when dog nears goal. Dog observes trainer, responds to the signal, and gets a dog goody.
    The snuffling and the runaround is also taught by receiving goodies.
    Crooked dog handlers incentivised by his reward system, plays the odds and signals the dog (unconsciously?) to mark. which gives the LEO a chance to mangle the bill of rights and get a reward.

    Of course there are correct ways to train dogs to smell out stuff. But who needs correctness when you are playing the odds.

    Who are the dumb persons here? Us or the Sct?

    The Supreme Court? Don’t they also get goodies. For approving stupid bills, for not approving others, for not taking a stance at all. Lots of ways to get a goody.

  12. The Kagan Test, and henceforth it surely will be known as the Kagan Smell Test, is quite simple. The defendant has the right to question the credibility of the dog. But not question or cross examine the credibility of the dog himself. The is a bad smell test and one wont want to step in it. Here is a partial of what she held:
    “But a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”

    So you can cross examine the LEO who relied upon the hearsay of a dog but not cross examine the dog.

    I guess its like the commercial with the kid with the southern accent: Its not fried chicken daddy, its Shake n Bake. Lets mix up the constitutional standards. We deny a cop the right to testify as to what a person said and require the person to be brought to court to be questioned in front of the jury in open court so that they can question and examine the credibility of the person. But we allow the cop to testify as to what a DOG said without the right to bring he dog into court to allow the jury to examine the credibility of the dog. Is it not time that we exclude DOG STATMENTS?

    What kind of Supreme Court do we have in this country? Did any of them ever try a lawsuit as a defense counsel in thier whole lives? Inquiring minds want to know.

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