Question Presented (from Cert Petition):
Whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?
Florida supreme court decision (71 So.3d 756)
The Dog Whisperer might want to get its own Supreme Court correspondent. (Paging Mike Sacks.) Florida v. Jardines will deal with whether Franky’s sniff outside Jardines’ home was a “search” within the 4th amendment. And now the Court will address whether Aldo’s drug-detection reliability was shown sufficiently for probable cause to search Harris’s truck. By the time the Court wraps up this Term, Franky and Aldo will have made lasting contributions to fetch search-and-seizure law.
As you can guess from the above, the Florida supreme court suppressed evidence after an alert by our canine friend, Aldo, on Harris’s vehicle. We know from settled caselaw that a dog sniff of a car (as opposed to a home) isn’t a “search,” therefore the car may be sniffed for any reason or none at all. But the police still need probable search to search the car, which means that the alert has to establish probable cause to believe the car contains contraband: how can we tell whether Aldo was good at his job, or just lucky in this instance? As the Florida court put it, 71 So.3d at 767, “Like the informant whose information forms the basis for probable cause, where the dog’s alert is the linchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists. … We conclude 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.” What, then, is enough? 771 So. 3d at 771:
For the above reasons, we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State’s presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog’s performance in the field, including the dog’s successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog’s ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog’s reliability.
Florida’s cert petition seems to accept the idea that probable cause based on an alert indeed requires that the dog be “well-trained.” While the petition argues that “a trained and certified dog [provides] an officer with probable cause to search,” it rejects the need to “present extensive evidence to support a probable cause basis for a narcotic detection dog’s alert,” Petition, p. 11. Although this makes the issue superficially appear to be narrowly framed (the dog must be “well-trained”; the narrow dispute is how that showing is to be made), it is more than that: as a pragmatic matter, if the prosecution need do nothing more than show that Rex was “trained and certified,” then the hearing is likely to be little more than a formality.
What about Wisconsin caselaw? The most relevant authority is State v. Miller, 2002 WI App 150, 256 Wis.2d 80, 647 N.W.2d 348 (2002) (“a dog’s alert on an object provides probable cause to search that object, provided that 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”):
¶13 Forbes testified that Cora had been trained in narcotics detection, that he had conducted over one hundred drug sniffs with Cora and that he was familiar with how Cora would alert to him. He further testified that of the forty times that Cora alerted on a vehicle, “illegal contraband or substances” were found thirty-five times. Miller does not challenge the veracity of this testimony.
¶14 We conclude that under these facts, Forbes had probable cause to search Miller’s vehicle. Although Cora did not have a 100% rate of accuracy, probable cause requires only that there is a “fair probability” that evidence of a crime will be found. State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607 N.W.2d 621. Cora’s level of reliability was sufficient to authorize a search of the vehicle under this test.
Note that the Florida supreme court in Harris favorably distinguished Miller, in that there, “the dog had accurately indicated presence of illegal contraband or substances on thirty-five of forty occasions (87.5%),” whereas the failure to “introduce Aldo’s field performance records, this Court does not have the benefit of quantifying Aldo’s success rate in the field,” 71 So. 3d at 773, n. 12. It’s simply not clear how Miller would be affected by any particular outcome.
