In an opinion handed down Tuesday, Feb. 19, the U.S. Supreme Court approved the use of drug dogs—with little more than an official training certificate—to establish probable cause that would not otherwise exist, thus clearing the way for more admissible searches.
In a unanimous opinion written by Justice Kagan, the Court held that "a sniff is up to snuff" where a reasonably prudent person, having knowledge of all the facts surrounding the dog's alert, could find that a search would turn up evidence of illegal drugs.
Lyle Denniston of SCOTUSblog explains that the Court has often upheld searches based upon drug-dog "alerts" in the past, and that the opinion simply "filled in any blanks about when and whether a police dog’s alert would satisfy that requirement." Specifically, the Court rejected the Florida Supreme Court's extensive checklist to determine whether a particular drug-dog alert constituted probable cause for a search, which included evidence of a given dog's past performance in the form of "hits" and "misses."
Defense lawyers argued that without a more stringent test, like the Florida Supreme Court's test, law enforcement would not have an adequate incentive to train and monitor drug-dog performance to ensure reliability. Responding to this concern, Kagan wrote that "[l]aw enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources" (commenters: do you think this is an adequate or accurate response?).
The opinion appears to create a presumption of probable cause with an alert by a certified drug-sniffing dog. Normally the state has the burden of proof in establishing probable cause—will this case meaningfully change anything on the ground and in the trenches?
More Resources:
Quick and Dirty Overview (Reuters)
Orrin Kerr's First Reactions (Volokh Conspiracy)
Lyle Denniston's Opinion Recap (SCOTUSblog)
Drug dogs sniffs fail to meet the Daubert standard for admission of scientific evidence. They probably do meet Fry for state courts that still use that standard. It would be interesting to force canine units to report the results of all searches and all alerts to provide a measure of effectiveness, but realisticaly that will merely result in people lying on reports or strongly filtering the cases. Add to the insult the ongoing extension of the Terry stop to allow the canine unit to arrive and you're faced with the Catch-22: try to leave and that's probable cause wait around and the canine unit can be induced to signal for probable cause.
ReplyDeleteHere's the link from a Chicago tribune investigation false positive rates for drug dog searches: http://articles.chicagotribune.com/2011-01-06/news/ct-met-canine-officers-20110105_1_drug-sniffing-dogs-alex-rothacker-drug-dog
ReplyDeleteHere's the numbers:
44% of alerts produced searches that found drugs or paraphernalia. For Hispanic drivers, only 27% of alters found drugs or paraphernalia.
I'm not sure how to embed links in comments or edit comments.
Thanks for the interesting contribution, EDN. I think this just goes to show that a rubber stamp of approval will only serve to reinforce the confidence of law enforcement agencies and result in more aggressive drug-dog policies and practices. With such a high margin of error, it seems that this affects the privacy of essentially all drivers; it may result in drawn-out Terry stops (to await the dog's arrival) and more erroneously triggered searches.
ReplyDeleteWhat's even more interesting is that if you are stopped for any reason, a drug sniffing dog can be used despite an absence of reasonable suspicion of any type of drug activity as long as it doesn't change the duration of the stop. (Illinois v. Caballes)
ReplyDeleteSo in other words, police can pull you over for a speeding ticket then walk the dog around your vehicle even if there's absolutely no reason to believe you've done anything drug-related. If the dog "alerts," you're at PC.
It does indeed limit privacy a great deal, but I suppose the argument is that drug-sniffing dogs don't invade a legitimate privacy interest, since they are only looking for an illegal substance.
It sort of makes sense to me that evidence that won't satisfy Daubert or Frye might still support probable cause since establishing probable cause is a pretty long way from admissible evidence submitted at trial that might lead to a conviction.
ReplyDeleteNot that I think this is good policy--EDN points out good evidence that police use drug sniffs in a discriminatory manner. Seems like a state law establishing the kind of checklist that the Florida Supreme Court suggested might be advisable.