Unconstitutional Dog-Sniffs – Man’s Best Frenemy
Photo by James Clayton
“Working like a dog.” This is a phrase I have never quite understood. My dog has never worked a day in his life, and until there is a high demand for butt-sniffing, then I doubt he ever will. However, not all dogs are lazy bums. Indeed, canine units have been integrated into nearly every law enforcement agency in the United States, and have played an increasingly vital role in apprehending criminals, detecting bombs, and uncovering contraband. But, just as the canine job market is beginning to turn around, the United States Supreme Court’s upcoming decision in Florida v. Harris could leave thousands of dogs unemployed and thousands of police officers searching for a new best friend.
In Harris, the defendant (hereinafter “Clayton”) was pulled over by Officer Wheetley, canine officer with the Liberty County Sheriff’s Department, because he was driving with an expired tag. Upon approaching the vehicle, Officer Wheetley noticed Clayton was “shaking, breathing rapidly, and could not sit still.” When Officer Wheetley asked Clayton for consent to search his truck, Clayton refused. At this point, Officer Wheetley deployed his trusty drug-detection dog, Aldo. Upon conducting a “free air sniff” of the exterior of the truck, Aldo alerted to the driver’s side door handle. Officer Wheetley informed Clayton that he now had probable cause to search the vehicle, and asked Clayton to step out of his vehicle.
Upon conducting the search, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag under the driver’s seat, eight boxes of matches containing a total of 8,000 matches, and a bottle of muriatic acid. Unless Clayton had the world’s worst sinus infection, Officer Wheetley accurately determined that Clayton was involved in cooking methamphetamine. Indeed, Clayton later admitted he had been cooking meth for about a year, and used it regularly.
Importantly, Officer Wheetley and Aldo had been partners for approximately one year at the time of the stop in question. They complete a forty-hour training seminar each year with the Dothan Police Department, and Officer Wheetley trains Aldo four hours per week in detecting drugs in vehicles, buildings, and warehouses. Aldo is trained and certified to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine. Notably, Aldo is not trained to detect pseudoephedrine.
Clayton made a motion to suppress the seized evidence, arguing that the search was unlawful because Officer Wheetley did not have probable cause to believe that his vehicle contained contraband. To be sure, for decades courts have allowed a positive alert by a well-trained, narcotics-detection dog to establish probable cause. In accordance with the well-established law on this issue, the trial court denied his motion. So that’s it, right? Not exactly.
Clayton immediately appealed the denial of his motion. The First District Court of Appeals affirmed the ruling of the trial court. However, the Florida Supreme Court granted Clayton’s petition for discretionary review and reversed the decision of the Court of Appeals. Specifically, the Florida Supreme Court held that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” It is upon this issue that the United States Supreme Court granted certiorari and will hear oral arguments on October 31.
Let’s be clear, this case is not about whether a dog’s sniff of the exterior of a vehicle constitutes a search. That issue was settled in 2005 by the United States Supreme Court when they held that “the use of a well-trained narcotic-detection dog” does not constitute a search because the dog “does not expose noncontraband items that otherwise would remain hidden from public view,” and that individuals do not have a legitimate privacy interest in possessing contraband. Rather, the narrow issue in this case turns upon whether training and certification alone are sufficient to establish the dog’s reliability.
While this issue is certainly ripe for parody, it truly presents many thought-provoking questions. For instance, the Florida Supreme Court persuasively analogizes the narcotics-detection dog to an informant, in that they both provide the officer with information the officer has not acquired using his own senses. Moreover, when the officer does not perceive the information establishing probable cause first-hand, the court requires additional evidence to establish that the source of the information is reliable. Furthermore, just like when an informant supplies information, the test of the dog’s reliability is based on a totality of the circumstances.
Essentially, the only evidence tending to prove Aldo’s reliability was the fact that he was “trained and certified”; however, Florida does not have a set standard for certification of single-purpose drug dogs such as Aldo. Hence, the Florida Supreme Court held that this fact alone will never be sufficient to establish reliability. The Court went on to state that “[b]ecause the State bears the burden of establishing probable cause . . . it is appropriate to place the burden on the State to ensure uniformity in the way dogs are evaluated for reliability of their alerts.”
According to the Florida Supreme Court, one of the relevant circumstances that must be evaluated in determining the dog’s reliability is his field performance records (“track record”). In this case, Officer Wheetley testified that he did not keep records of Aldo’s alerts in the field when no contraband was found; he only documented Aldo’s successes. Apparently, this is the common practice not only in Florida, but also nationwide. Therefore, it is impossible for Clayton, or any other defendant, to demonstrate that the particular dog in question is unreliable.
At first glance, requiring the police to document a dog’s track record makes sense. After all, dogs are not susceptible to the usual safeguards of reliability, such as cross-examination or the threat of being charged with filing a false police report. Moreover, false alerts – an alert by the dog in the absence of the substance it is trained to detect – are not all that uncommon as evidence of “handler cuing” continues to surface. Indeed, one commentator has described the “’mythic infallibility’ of the dog’s nose:
“In cases involving dog sniffing for narcotics it is particularly evident that the courts often accept the mythic dog with an almost superstitious faith. The myth so completely has dominated the judicial psyche in those cases that the courts either assume the reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner.”
To be sure, there are valid and persuasive arguments on both sides of the issue. Now it is up to the nine members of our Highest Court to strike the appropriate balance between individual privacy interests and legitimate government needs. Whatever the case may be, come October 31, the United States Supreme Court will be letting the dogs out, or keeping them in, and “[n]othing less than the sanctity of our citizens’ constitutional rights to be secure from unreasonable searches and seizures in their homes, their vehicles, and their persons is at stake.”
As a side-note, it may surprise you to learn that Clayton was pulled over again, two months after the stop at issue in this case, by Officer Wheetley and Aldo. Again, Aldo was deployed and alerted on Clayton’s driver’s side door handle. However, this time no drugs were found. It appears on this dog-day afternoon Aldo was barking up the wrong door handle, and very well could have
