“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. Under the Fourth Amendment, when the police say that they have probable cause to search without a warrant, they have to say under oath that they had probable cause. And so what does cop say? I learned from my dog that there was pot in the car. So, cop is stating under oath hearsay that he heard from a dog.

    This is the point BarkinDog makes with this hearsay of the dog argument. The lawyers in the Florida case and the other cases in the pipeline to the Supreme Court, did not make the right objections or record on the hearsay issue and the right of the defendant to confront the witnesses against him, and that means the dog.

  2. The 4th, 5th, 6th and 14th Amendments provide the main protection against police violation of your rights to liberty, property, privacy, life. Article 5 of the 14th Amendment, which was passed way back in 1868 or so, gave Congress the right to pass legislation to enforce the Amendment’s provisions. Congress finally did so under the great work of LBJ in 1964 with the passage of the Civil Rights Act of 1964.

    Victims of LEO abuse have a right to file a civil cause of action against the state actors who violated their civil rights. I dont know if they would name the dog but they could include the Leo on the scene, the Superior Officers and the city involved who employs the police, ie. municipal liability under the Monell doctrine. The plaintiff can sue for punitive damages. See 42 U.S.C. Section 1983 and Section 1988 on attornyes fees.

    The four Constitutional Amendments are here:

    Amendment IV [ Annotations ]
    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.
    Amendment V [ Annotations ]
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
    Amendment VI [ Annotations ]
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    Amendment XIV. fn6 [ Annotations ]
    Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
    Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
    Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
    Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    — so sickem.

  3. Gary C: The strongest spokesman for the 6th Amendment Confrontation Clause on the present Court is Justice Scalia. It seems out of place because generally he will not stand up for a defendant. But he is very articulate on the Confrontation Clause. Your right to confront your witness in court trumps any Donald who tries to get some witness statement into evidence by the back door method of just putting his statement into evidence by the witness’ affidavit, or some police report of what the witness said or some other little wrinkle conjured up. The Rules of Hearsay are anti-thetical to the Confrontation Clause. The schmucks who made up differing Exceptions to the Hearsay Rule over the decades have usually done so in the context of civil cases and then some unreconstructed State like Missouri will transfer them over to the criminal arena. Your right to confront the witnesses against you in open court in front of the jury so that the jury can determine the credibility of the dog or human on the witness stand is further ensconsced in the 14th Amendment which makes the right to due process of law and equal protection of the law and the right to liberty applicable to state court proceedings as well as federal courts. All of your 4th, 5th and 6th Amendment rights are protecting you in a state criminal proceeding.

    The Party of Lincoln was composed of Radical Reconstructionists who were focused on making this country a free country for all people, not just the white people or some white people like Southern Oligarchs. Blacks and poor white trash alike are treated equally and given all the due process, liberty rights and equal protections by virtue of the 14th Amendment. It can be summarized that the 13th Amendment freed the blacks and made them citizens, the 15th Amendment gave them the equal right of citiizenship to vote and the 14t Amendment gave all Americans, including poor white trash equality and liberty.

    I know that the foregoing is a dog rant but that is what we are here for. To Alert y’all to certain things that we have time to sit back and observe or contemplate.

    I am also glad to see that some of the commenters here agree that this Supreme Court needs to be replaced. Can you imagine the fact that none of them have ever once represented a criminal defendant in a state or federal jury trial? They are all Harvard and Yale and all stale.
    Nuff said or barked.

  4. I was sitting here at the marina at the Dogalogue Machine holding my bark until I read the comment by Tony C just above here. He is spot on. No pun intended Spot. I worked with a Hyw Patrol guy in W. Va. and today am his blind guy seeing eye dog. He drank too much moonshine that I had sniffed one night and pointed to and he went blind. We now live here near the marina and I walk blind guy around and advise on the aspects of the women etc. Sometimes a K-9 dog will say anything for a dog biscuit. So, we are all not reliable. We would be more reliable if you put us under oath on the witness stand and did that “raise your right paw” routine that BarkinDog barks about in the comments above. I might add that the Trooop will assign a dumb Leo to K-9 duty to work with a smart dog. The dumb Leo will mis-interpret our high fives and whatnot quite often. A dumb Leo can be quite an offender. If ya know what I mean.

  5. As a dog owner that walks daily, with a very well trained dog, and as a scientist, I do not think even a double-blind would count. In the field, the dog would still know whether the handler wanted him to indicate drugs, and we can expect the dog to please his handler, scent be damned. If the handler tips his head, frowns, or just doesn’t like the driver, the dog knows that and will indicate drugs whether it smells them or not.

    It might do 100% in a double blind, that doesn’t really mean anything in the field. During a double blind, the handler’s understanding that it is just a test will leave him calm and neutral, that is not what we expect of handler’s in the field; if nothing else they need to be alert for a possible violent attack by their suspect or an attempt to escape if the dog does find drugs.

  6. I showed this news story to my cat this morning of the Supreme Court’s decision clearly ruling against the Preamble of the Bill of Rights, the Rights them-self & removing another layer of Judaical oversight of Law enforcement.

    Let me tell ya, the Cat is Outraged! He thinks Cats should be the ones to replace the judge’s Constitutional Authority, not the Dogs. LOL;)

    Seriously, 9 to 0, this Supreme Court is clearly Mentally Ill & needs Impeached or at have a case against them sent/heard before a Federal or State Grand Jury.

    How can the people themselves form Grand Juries to hear cases against these types?

    In case you’re still unsure go back & re-read Bush vs Gore, or what that case was called.

  7. The dog’s alert is not part of the case against the defendant generally, so neither hearsay nor confrontation clause issues are present. Probable cause findings are often based on hearsay rather than an officer’s direct observations. (Don’t take this to mean I don’t have grave concerns about this decision which basically encourages law enforcement not to keep accurate records of a dog’s performance).

  8. “It is time to consider Impeachment. Scalia, Alito, Roberts gotta go.”

    Wrong. They all have to go. Its time to impeach of all of them. As well as most of Congress etc

  9. BarkinDog:

    You have the best response here yet.
    You are basically saying that what was lost in 4th amend protections can be more than made up for on the hearsay, confrontation, clauses.

  10. Nick and Rafflaw: Your farts might give away the truth that you had been smoking pot. That would have come out had the cops in the Florida case had a Dogalogue Machine and put the so called Alert Dog on the witness stand.

  11. Our farts are superior to human farts. So, we dogs dont really smell butts all that much. We sniff the pockets for dog biscuits. Many humans will bring dog biscuits around to the dog sites of the world and we are usually sniffing out the benefactors. Not the smelly butts.

  12. Diogenes: The Confrontation Clause of the Sixth Amendment was completely overlooked by defense counsel and by appellate counsel in this Florida case. The witness who smelled the pot was a dog. He spoke to a cop and conveyed that message. That it would take a dog to know a dog is perhaps a lesson lost on the Supreme Court. But you might agree that us dogs do have a different perspective than those Justices sitting on the Supreme Court, none of which ever represented a criminal defendant in a jury trial.

  13. rafflaw, The way dogs obsessively sniff butts, I thought my farts would be a treat for the K-9’s. Am I wrong in that assumption?

  14. First we ‘outsource’ the “waterboardin’ ” to dark regimes around the world. Next we outsource killing to Drones flying all over the world. Now we make it Kosher to delegate Dogs to show us with ‘scientific accuracy’ the Probable Cause true meaning(s).

    No, the Constitution ain’t dead, it just has more holes in it than a good block of Swiss Cheese!

  15. And yeah I went through the seminar on coming back as a dog when I was up there at the Pearly Gates but I chose coming back as a human this time.
    Nuff said, I am getting in deep do do with the NSA.

  16. The Dogalogue Machine is not available to anyone other than my dogpac and another version for Dolphins here at the marina. The NSA has similar machines but is keeping quiet. So when the Dogalogue Machine is made available then the Dog Alert issues will be moot because the dogs can be called into court to testify. Raise your right paw and repeat after me. I am DogBiscuitGuy and monitor the machine and the dogs here at the marina. I am not a dog but a human but I was a dog in a prior life and that is the topic of another story.

  17. The case should have comprised three companion cases. Case one is the Florida case with the cop listening to his dog and relying on dog’s statements. Case two is the deaf and dumb guy who gave hand signals to the cop that there was pot in the car. Case three is where the prosecution had a police dog and put him on the stand at the motion to suppress which was denied. The dog testified via the Dogalogue Machine that he smell pot, that he did smell both smoked pot smell and leaf pot smell in the car and that he was positive that it smell like pot and not like tobacco or southern fried chicken. The defense objected on the grounds that a dog was not a credible witness. In Case Four the case is same as Florida case but the defense objected to the hearsay of the dog statements coming in thru the cop and on Confrontation Clause grounds.

    The oral argument would have gone like this:
    Justice Scalia: So, in case four we have the correct objection on Confrontation grounds and I will side with the Sixth Amendment and rule for the defendant. I will say that up front. But I am having trouble with Case Three where this dog testified through some machine. I am having no problem with reversing Florida (Case One) because the dumb schmucks at trial never raised the Confrontation Clause objection or hearsay of the dog. In Case Two I have no problems with deaf guy and hand signals being interpreted correctly but then it makes me see that this is a Confrontation Clause issue and that deaf guy should have been called at trial. He is not some Alert Dog. No dumb guy is all that alert.

  18. Maybe we 24/7 tracking of officers, FBI agents, etc. and mandate that they separate “probable cause/reasonable suspicion” hours vs. “non-cause” hours – the general public may be surprised at the ratio – where the probable cause was fabricated using the dogs. Not questioning the officers intentions only their “means” (constitutional due process) – there is no fundamental understanding of the chronological process of the Fourth Amendment – you don’t fabricate probable cause.

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