When is a Sniff Up to Snuff?

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When is a Sniff Up to Snuff?From upstate Liberty County, Florida, deep in the panhandle, the training of Deputy Sheriff Bill Wheetley, and his K-9 partner, Aldo, went before the Supreme Court last week, in Florida v. Harris.  The issue was did Aldo’s alert to the smell of drugs he was trained to detect establish the probable cause necessary to search Clayton Harris’ truck.

Harris had been stopped for an expired license plate.  Upon approaching the vehicle, the officer noticed the driver was nervous, shaking, and breathing rapidly. An open beer can was also observed in the cup holder.  When Harris refused to consent to a search of his car, Wheetley retrieved Aldo and walked him around Harris’ truck for a “free air sniff.”

Aldo alerted at the driver’s side door handle.  The officer, deciding he had probable cause, searched the vehicle for the drugs Aldo was trained to detect methamphetamine, marijuana, cocaine, heroin and Ecstasy.  While none of those drugs were found, the search did turn up the ingredients necessary to produce methamphetamine.

The ingredients included 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee can of iodine crystals.  If you have ever seen the before and after photos of meth users, now you know why they look then way they do!  Can you imagine ingesting those things?

Harris was arrested for possession of pseudoephedrine for use in manufacturing methamphetamine.

While his case was pending (and he was out on bail), Wheetley and Aldo met Harris again, this time for a broken brake light.  As before, Aldo alerted to the driver’s door, but this time the search turned up empty.  This became the defense; Aldo’s several false alerts were proof of his unreliability and his positive alerts cannot establish probable cause.

At Harris’ motion to suppress, the following evidence of training was presented:

Deputy Wheetley, with another dog, had taken a 160 hour course in narcotics detection (with an Alabama police department), Aldo, with a different handler, had taken a similar 120 hour course given by a different Florida department.  Aldo also received a certification from a private company that trains K-9 dogs.  When Wheetley and Aldo teamed up, they took another 40-hour course at the Alabama school.

They also did 4 hours of training exercises each week to maintain their skills. Wheetley would hide drugs in certain vehicles or buildings while leaving others “blank” to determine whether Aldo alerted at the right places.  According to Wheetley, Aldo’s performance in those exercises was “really good.”  The State introduced “Monthly Canine Detection Training Logs” consistent with that testimony. They showed that Aldo always found hidden drugs and that he performed “satisfactorily” (the higher of two possible assessments) on each day of training.

In addition to the training of the officer and dog, it was established that Aldo’s school certificate (good for one year) had expired (which is not required in Florida).  The two “false” alerts were also brought out by the defense.  The trial judge denied the motion, finding that the sniff by the well-trained dog did establish the probable cause necessary to justify the search.  Harris, reserving his right to appeal the denial of his motion to suppress, entered a no contest plea. The intermediate appellate court upheld the ruling, but on further appeal, the Florida Supreme Court reversed the conviction.

The Florida Supreme Court, in ruling against the finding of probable cause, held:

“that Wheetley lacked probable cause to search Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.”  To demonstrate a dog’s reliability, the State needed to produce a wider array of evidence:

“[T]he State must present . . . the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”

The court particularly stressed the need for “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.”  That data, the court stated, could help to expose such problems as a handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish between residual odors and actual drugs.”

A unanimous U.S. Supreme Court disagreed, and slam-dunked the Florida high court, upholding the trial judge.  They reminded us that probable cause is a “fluid concept,” not readily reduced to a neat set of rules.  As the name implies, it is based upon “probabilities” and rejected these rigid rules.

Criticizing the requirement of a history of “hits” and “misses,” the court reminded us that it is the “totality of circumstances” that control this analysis. Any one fact may be overcome by others.

The “hit and miss” system is unreliable in itself.  If a dog fails to alert when drugs are present, that error goes undetected, as the car is not searched.  More relevant, as here, if the dog alerts and no drugs are found, “the dog may not have made a mistake at all.  The dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person. Field data thus may markedly overstate a dog’s real false positives.”

So what is the bottom line?

Justice Kagan, speaking for the full court, said:

“Evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bonafide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.”

A sniff is up to snuff when it meets that test.  Here, Aldo’s did. The record here supported the trial court’s determination that Aldo’s alert gave Wheetley probable cause to search Harris’ truck.”

Way to go, Aldo.

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected], or thru LET.

 

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