SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "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."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.