-Submitted by David Drumm (Nal), Guest Blogger
The 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.
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.
It is time to consider Impeachment. Scalia, Alito, Roberts gotta go.
I can smell better when off the leash.
Justice Scalia is coming off his high ground and not himself raising the Confrontation Clause issue, sua sponte or sewer sponte however ya spull it. Then there is the “reliability of the dog” issue. If Spot has an error rate of fifty percent then half the people who get searched will be victims of a crime themselves.
Liar, liar, your pants are on fire coppo. Any alert dog worth his salt would have scratched that pot car. So, just how did he Alert the coppo?
I can only smell pot when the perps are smoking it.
What fourth amendment?!?!?
The lawyers for the defendant blew it. They did not, at trial, or at a motion to suppress evidence prior to trial, raise the objection of Hearsay. There is no Hearsay of The Dog Exception in treatises or in state rules of evidence. Secondly, the right to confront the witnesses in court under the Confrontation Clause trumps any hearsay “rule”. But that issue did not get before the Court. Scalia is a supporter of the Confrontation Clause which requires the witness to be cross examined. One cannot cross examine the cop about what the dog actually sniffed. The cop is relating what the dog said. Dogs communicate by grunting, barking, sniffing, holding up the right paw or left paw, scratching on a wall– it is all communication.
Now here is what you do, young public defenders out there in the world who defend clients: depose the cop and ask him/her if his dog is reliable. If Fido can tell him when he needs to go out to pee. If Fido can advise that the dog food bowl is empty. If Fido can tell him when there is someone at the door.
And what does Fido do or say when he wants out? It is different than when he wants to tell you that there is pot in the car that he is sniffing, isn;t it?
So he is good at communicating and you are good at interpreting? And Fido told you that there was pot not crap in that car? Yes.
Objection. Hearsay of the dog.
Objection. Confrontation clause. I have the right to cross examine the dog.
I cannot believe that this case got to the Supreme Court without the foregoing being part of the record. In civil cases there is no exception to hearsay because the hearsay is that of a dog. In criminal cases there is no exception. The Confrontation Clause objection trumps ANY hearsay objection. Any judge in the world knows that dogs communicate different strokes to different folks and that the declaration that there is pot in a car or in a house is a communication.
The more I think of it, the more upset I get. The Florida Supreme Court got it right. The State should always have a high duty to prove in a probable cause situation. This officer did not keep records of the dog’s misses, just his successful hits. Shouldn’t the State be required to provide the full story of the “witness” dog? Sad.
Finally, Kagan should be ashamed of herself. Anytime you vote with Clarence Thomas, you should wonder what you are doing wrong!
Interesting article David. I, too am surprised that it was a 9-0 vote for this further watering down of the 4th Amendment.
nick,
Just open a window a mile or two before the checkpoint. Or get Febreeze.
Nal,
This is a most important article done to perfection. What SCOTUS has allowed on all evidentiary fronts is the intoduction of pseudo-science into police work that allows LEO’s to void the Bill of Rights. It doesn’t stop with drug sniffing dogs; is is eyewitness testimony, fingerprints, handwritng analysis and even “lie detectors” though not allowed in Court. What you have are pseudo scientific forensic theories accepted as fact. Even though “lie detector evidence is not allowed in Court, it is a basic tool in many police investigations nationwide. This unreliable test if failed, convinces the LEO’s that a suspect’s “hiding something” and they then follow that false trial doggedly. The popularity of the CSI shows misleads the public into believing “forensic science” is a foregone conclusion.
Very interesting. I drive the southern route from Wisconsin to San Diego. I encounter @ least 2 stops on Interstates 10 and 8 where dogs are used. I’m sure they can smell my farts from eating great bbq and Mexican.
Was it Scalia who said that the Constituion is dead? Well if it wasn’t then, our Supreme Corporate Court is doing everything it can to take if off of life support. I did not graduate from law school that long ago but the state of the Constitutional protections once enjoyed by Americans as one of the hallmarks of our revolutionary system has changed from day to a chilling and very dark knight. I hardly recognize the pro police intrusion standards now being crafted and written in stone by SCOTUS. A very sorry time indeed.
The unanimous part is most depressing. It guarantees revolution lies not far ahead, and it will be both digital and recorded.
Great article, bad case law for the citizens of this country. The 4th amendment has been chipped away by the Supreme Court now for over 3 decades. It’s sad to watch this erosion as a criminal defense attorney and as a citizen. Great reporting Nal. -frankmascagniiii
It’s much worse than many know or believe.
And here’s the rub: Some people know, on some level, just how bad the situation is… but if I told the truth about what I know, it would be dismissed by most people. By the time good Americans wake up, it may well be too late.
As to the 4th Amendment?
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Anyone who believes it is living in a dream world. Some may pretend but, in reality, it’s meaningless.
Thanks for confirming what you know, Frank M. There are still some good guys in the fight.
AMENDMENT IV (RATIFIED DECEMBER 15, 1791):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
Michael, if an officer is walling down the street and sees what he thinks is a bomb or gun in someones hands and they walk into a house, he has probable cause to investigate. Now if same officer is walking down the street with a dog and the dog indicates a hit on a house for whatever he is trained to sniff for, that will be classified as probable cause.
That means the police can simply stroll down your street with dogs and go into homes at will, according to the Supreme Court, which has sold us all out. Everyone knows the courts always tilt towards Law Enforcement. So all it will take is the officers word that the dog strongly indicated drugs, bombs whatever.
Laugh if you wish and call it a stretch but this can EASILY lead to Gestapo tactics.
Our govt is a mess and so is our judicial.Nobody is protecting our rights anymore.
Something has to give before Orwells 1984 becomes a history book that shipped 75 years early.
Seems to me that a dog sniffing around your car is also a search, and thus illegal without probably cause.
Great article, bad case law for the citizens of this country. The 4th amendment has been chipped away by the Supreme Court now for over 3 decades. It’s sad to watch this erosion as a criminal defense attorney and as a citizen. Great reporting Nal.
“… and the defendant has not contested that showing …”
Hmmm does that switch the burden of proof?
Supreme Court just threw the 4th Amendment under the bus. Heinous decision that further erodes our rights. Not sure everyone understands the slippery slope implications of all this but it will allow police to search anyone at will for anything they can say the dog is trained to search for. We will eventually end up with claims of dogs indicating hits outside homes from the street as well.
Somewhere along the way, especially the last 30 years, we have lost our way as a nation and are now in an extremely vulnerable position in regards to the govt. Jefferson must be rolling in his grave. Someone let him out.