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Evidence needed to establish reliability of drug-sniffing dog for purposes of determining probable cause

Florida v. Harris, USSC No. 11-817, 2/19/13

United States Supreme Court decisionoverruling Harris v. Florida, 71 So. 3d 756 (2011)

In a unanimous decision addressing the question of when a drug-sniffing dog’s alert constitutes probable cause, the Supreme Court overturned the Florida Supreme Court’s requirement that the state produce records of the dog’s reliability in the field in order to support probable cause. The Court ruled that because the probable cause inquiry is a practical common-sense judgment based on the totality of the circumstances, it cannot follow any specific rules about what evidence must be provided. Thus, the Florida court improperly imposed a requirement that the state present  records of field tests and field performance. Instead, the Court holds:

If a bona fide 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. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. (Slip op. at 8).

The defense can then try to rebut the presumption with specific evidence:

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant…. (Slip op. at 8).

Under Wisconsin’s existing test, a dog alert can provide probable cause for a search only where “the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband.” State v. Miller, 2002 WI App 150, ¶12, 256 Wis. 2d 80, 647 N.W.2d 348 (emphasis added). A footnote to this sentence says this standard “suggests that there may be a need to obtain additional evidence to support probable cause when the dog has not yet established a proven track record that it is reliable.” To the extent Miller‘s “proven track record” language requires the kind of performance records Florida did, it goes too far; on the other hand, it could be read to be consistent with the Court’s emphasis on an evaluation of proficiency. The requirement that the officer be familiar with how the dog alerts, however, must still be valid: If the officer doesn’t know that, there would be no probable cause regardless of how accurate the dog is.

The Court’s general conclusion that there is no specific record or test for determining probable cause based on an alert by a drug dog is in keeping with the long-standing, flexible, “totality of the circumstances” approach to determining probable cause. But as Orin Kerr notes, while the Court says there is no particular test, it seems to create one: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent[] and successful[]” completion of a training program, which creates a presumption of probable cause. While that presumption “can” be rebutted by the defense, it will apparently take “conflicting evidence.” Apparently, then, if the defense does not put on specific evidence of unreliability (through cross or by calling its own witnesses), the judge must find the dog to be reliable and probable cause to be established. A later statement by the Court seems to make this point, too:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. 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, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test. (Slip op. at 9).

If you are seeking to challenge probable cause based on a drug dog alert, then, you need to do more than just argue the absence of evidence of tests or performance in the field that show reliability. And you will need to do more than just cross-examine the officer if he or she knows little about whether the training or certification program the dog went through is “lax” or “faulty.” In that situation, you’ll need to present your own “fact or expert witnesses,” or the court will be entitled to presume the dog is reliable. That possibility was why Florida imposed its requirement: The court said that because the state has the burden of proving probable cause, the defendant should not have the burden of showing the lack of reliability of the dog. Harris, 71 So. 3d at 759.


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