Politics

Florida Justice Gone to the Dogs? U.S. Supreme Court Upholds 'Dog Sniff' Arrests

By: Eric Giunta | Posted: February 20, 2013 3:55 AM

Around the State

U.S. Supreme Court building, left, March 2013 cover of Reason magazine, right.

Despite concerns by civil rights advocates, the U.S. Supreme Court has ruled that a mere sniff from a police dog is enough to constitute “probable cause” for a warrantless search, even if that dog’s certification is expired and there is no documentation proving the dog has an accurate track record.

“The Florida Supreme Court held that the state must 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,” Justice Elena Kagan wrote for the high court in an opinion published Tuesday. “We think that demand inconsistent with the ‘flexible, common-sense standard’ of probable cause.”

The case, Florida v. Harris, stems from an arrest made in 2006 of one Clayton Harris, pulled over by Liberty County sheriff’s officer William Wheetley for driving on an expired tag. Wheetley’s patrol dog, a German shepherd named Aldo, signaled that it smelled drugs on one of the car's handles.

Believing Aldo’s behavior gave him “probable cause” to believe Harris was in possession of illegal narcotics, Wheetley searched the car, finding none of the drugs Aldo was trained to sniff out, but finding various ingredients used to make meth.

Harris’ lawyer argued that Wheetley did not have probable cause to search the car, because Aldo’s certification was expired and the sheriff’s office could produce no documentation proving that the canine had a track record that demonstrated his reliability in the field.

In a 5-to-1 ruling, the Florida Supreme Court agreed with Harris, finding that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause.” Instead, “[t]he state must present ... 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.”

Kagan disagreed.

“Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the [probable-cause] decision,” she wrote, citing case precedents. “All we have required is the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’

She concluded: “Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, we agree ... that Wheetley had probable cause to search Harris’ truck.”

Darpana Sheth, an attorney with the Institute for Justice, a libertarian public interest law firm, tells Sunshine State News the ruling has potentially disastrous implications for Floridians' and other Americans’ property rights and other civil liberties.

“This case gives license for law enforcement to take your property after getting permission from a dog, and that is just not what our Constitution envisions,” she says. “What’s very weird about the [U.S. Supreme] Court’s holding is that it criticizes the Florida Supreme Court for erecting a very rigid, mechanical test, but then [the high court itself] seems to adopt a rigid, mechanical test, creating a rebuttal presumption that if a dog is trained or certified by a bona fide organization, than that alone constitutes probable cause.”

Florida Attorney General Pam Bondi had a very different reaction to the ruling, applauding it in a press release issued by her office shortly after Kagan’s opinion was published.

“This victory is paramount to preserving our law enforcement officers’ ability to use police dog alerts to locate illegal drugs and arrest those who possess them," Bondi said. "The Supreme Court correctly held that a police dog’s reliability is determined through a common-sense evaluation of the relevant circumstances, rather than through a rigid set of judge-created requirements."

Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116.