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A K-9 Sniff That is Up to Snuff

Thursday, February 4, 2016

By Larry E. Holtz, Esq.

Source: Holtz Learning Centers

To determine whether the “alert” of a drug-detection dog during a traffic stop provides probable cause to search the vehicle, must the police, in every case, present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability? In Florida v. Harris, the United States Supreme Court said NO!

According to the Court, such a requirement is “inconsistent with the ‘flexible, common-sense standard’ of probable cause.” There is no need for “an inflexible set of evidentiary requirements.” Rather, “[t]he 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.”

THE CASE: In June, K-9 Officer William Wheetley of the Liberty County, Florida Sheriff’s Office, was on patrol with Aldo, a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Wheetley stopped defendant Clayton Harris’s truck because it had an expired license plate. “On approaching the driver’s-side door, Wheetley saw that Harris was ‘visibly nervous,’ unable to sit still, shaking, and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder. Wheetley asked Harris for consent to search the truck, but Harris refused. At that point, Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a ‘free air sniff.’ Aldo alerted at the driver’s-side door handle —signaling, through a distinctive set of behaviors, that he smelled drugs there.”

“Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals—all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely ‘cooked’ methamphetamine at his house and could not go ‘more than a few days without using’ it.” Harris was then charged with the drug-related offenses.

“While out on bail, Harris had another run-in with Wheetley and Aldo. This time, Wheetley pulled Harris over for a broken brake light. Aldo again sniffed the truck’s exterior, and again alerted at the driver’s-side door handle. Wheetley once more searched the truck, but on this occasion discovered nothing of interest.”

“Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not given Wheetley probable cause for a search. At the hearing on that motion, Wheetley testified about both his and Aldo’s training in drug detection. In 2004, Wheetley (and a different dog) completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department, while Aldo (and a different handler) completed a similar, 120-hour course given by the Apopka, Florida Police Department. That same year, Aldo received a one-year certification from Drug Beat, a private company that specializes in testing and certifying K-9 dogs. Wheetley and Aldo teamed up in 2005 and went through another, 40-hour refresher course in Dothan together. They also did four 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.”

On cross-examination, Harris’s attorney focused on Aldo’s performance in the field, particularly the two stops of Harris’s truck. Wheetley acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other field work; instead, he maintained records only of alerts resulting in arrests. “But Wheetley defended Aldo’s two alerts to Harris’s seemingly narcotics-free truck: According to Wheetley, Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that ‘residual odor.’ ”

At the Florida Supreme Court, it was held that Wheetley lacked probable cause to search. That court determined that “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” Rather, to demonstrate a dog’s reliability, the State needed to produce a wider array of evidence, including: ‘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 Florida 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.’ ”

THE LAW: The United States Supreme Court disagreed and reversed. Justice Kagan, speaking for a unanimous Supreme Court, emphasized that all that is required for probable cause to search is a “fair probability,” based on the totality of the circumstances. Id. In this regard, the Court has always “rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”

To assess the reliability of a drug-detection dog, the Florida Supreme Court inappropriately created “a strict evidentiary checklist, whose every item the State must tick off.” “Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior ‘hits’ and ‘misses’ in the field. (One wonders how the court would apply its test to a rookie dog.).” This requirement is the opposite of the “totality of the circumstances” analysis.

Significantly, “if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or 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. By contrast, those inaccuracies — in either direction — do not taint records of a dog’s performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not — and so where a dog should alert and where he should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.”

“For that reason, evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. 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. After all, law 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.”
“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.”

“In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. * * * 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.” There is no need for “an inflexible set of evidentiary requirements.” Rather, “[t]he 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.”

“And here, Aldo’s did. The record in this case amply supported the [] determination that Aldo’s alert gave Wheetley probable cause to search Harris’s truck. The State, as earlier described, introduced substantial evidence of Aldo’s training and his proficiency in finding drugs.” As the case came to the trial court, “Aldo had successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises. Viewed alone, that training record —with or without the prior certification—sufficed to establish Aldo’s reliability.”

During the motion to suppress, Harris failed to rebut the State’s case. He principally contended that “because Wheetley did not find any of the substances Aldo was trained to detect, Aldo’s two alerts must have been false.” Said the Court.

But we have already described the hazards of inferring too much from the failure of a dog's alert to lead to drugs; and here we doubt that Harris's logic does justice to Aldo’s skills. Harris cooked and used methamphetamine on a regular basis; so as Wheetley later surmised, Aldo likely responded to odors that Harris had transferred to the driver’s-side door handle of his truck. A well-trained drug-detection dog should
alert to such odors; his response to them might appear a mistake, but in fact is not. * * *
“Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, [the Court concluded] that Wheetley had probable cause to search Harris’s truck.”

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