“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. This Harris decision will go down in history as one small step for dog and a giant step for dogkind.

  2. This is bigger than Carmen Miranda for police departments. Every precinct will have a K-9 Dog and K-9 Leo. It is a constitutional dog-pass. Even guide dogs for the blind guys will get more respect after this decision. We walk on vasser.

  3. Obama’s Kagan is sidin with the faschists. Sometimes the Irish will do that, Had she sided with cats like this I would be itchinBay.

  4. Our finest hour! The international dogpac is a churnin today. Tanks Yanks.
    Dogs on a pedestal. All those humans have pot if we bark so.

  5. Ay, the Supreme Court of the Exceptional Country has put dogs on a pedestal. I hope this extends to the courts in Ireland.

  6. Having read the decision and having read the article and comments above, and having been a lawyer in a prior life and now being a dog, I find it appropriate to leave us dogs on the pedestal that the Court has so kindly and aptly provided and suggest that we allow sleeping dogs to lay, so to speak.

  7. “We’ve moved away from surveillance based on individualized suspicion, the Fourth Amendment standard of probable cause and a warrant has basically evaporated,” German told Reason.tv last year. “And the government can now collect information about people it doesn’t even suspect of wrongdoing.” -Michael German, ACLU (formerly with the FBI)



  8. Yo: Frequent Business Flyers Guy: Dont be so lame as to ask others how to be unlame to walk and talk and hand out medieval flyers. Go on line. Also, get off our blog.

  9. I would characterize the decision of the Supreme Court as “deference to the Dog” and think that dogs should be happy with the respect and deference given to them by the high court. Dogs were put here on earth to guide humans. Here the Supreme Court of the Exceptional nation is giving deference to the judgment of the dog. Roll with it doggos and quit your itchinBay.

  10. i’ve been subjected to several k-9 searches over the years. i’ve seen the dog walk right by an area he should have reacted to. at one in georgia they almost couldn’t get the dog to walk around the van. after the officer tried to get the dog to jump on the side of the van, the dog still wouldn’t jump. i suggested he rub bacon grease on the side of the van (you can guess what the officer told me).

    here in volusia county fl. they would wave money in front of the dogs and then confiscate the cash.

    the use of dogs as probable cause is a joke.

    p.s. you should see how the trained k-9’s react when you have your dog with you and she’s in heat.

  11. I ordered some flyers off vista print for my new business to see if I could drum up some customers. Quick question…What’s an easy way to have these handed out to people? I’m pretty busy running the business and I really don’t have the time to run around handing out flyers to people.

  12. “Anytime you vote with Clarence Thomas, you should wonder what you are doing wrong!”

    And raff wins the Internet.

  13. Well it is a hearsay of the dog exception to both the hearsay rule and the Confrontation Clause. The Supreme Court has not characterized it as such but that is where it stands. And this dog does not like it. But, dogs will be dogs and disagree. I have already been bitten once on the rear today by itchinBayDog for my rants.

  14. This dogpac is a house divided. Some of us like the fact that us dogs are exalted and our bark is taken on a higher meaning than that of a mere mortal. These lawyer dogs are not thinking about how this works for the image of dog. I have changed my mind on this subject. We need a hearsay of the dog exception in criminal cases.

  15. Yeah, that is what the Florida case is all about. Dogs are reliable. We know what we preach. We got our day in court without having to be there under oath. We did not have to raise the right paw and repeat after the clerk that litany about truth.

  16. One of the reasons that the Supreme Court ruled for the prosecution here is because humans recognize the value and reliability of their dogs. We dogs ought to stick up for each other and be glad that the Supreme Court has put us on this pedestal. If I bark that there is pot in that car then by dog there is pot in that car. Case over. Thank you Justice Kennedy.

  17. There is no Hearsay of the Dog Exception, which is recognized in any state or federal evidentiary rule. I make fun of the “hearsay of the dog” here and am merely pointing out that the lawyers for the defendant missed the issue entirely. The cop’s statement under oath that he had probable cause to search the car or house without a warrant is based on what he heard or saw the dog do. This is no different than having a deaf and dumb interpreter there interpreting deaf and dum guy’s hand signals. So, the court, had the objection been raised, is violating the hearsay rule and more importantly in a criminal case, the Confrontation Clause.

    The police department in NYC uses snakes to sniff out vehicles. Not dogs. Wait until that comes up in court.

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