Thursday, November 01, 2012

SCOTUS, Franky and Aldo: High court reviews drug-dog protocols

Yesterday the US Supreme Court heard two important Fourth Amendment cases related to drug sniffing dogs that deserve Grits readers interest (case names link to the opinions):
  • Florida v. Jardines: Whether police can bring a drug sniffing dog (in this case, "Franky") to your home without a warrant?
  • Florida v. Harris: What threshold must be met regarding evidence of reliability - training, certification, etc. - before a dog's say-so (in this case, "Aldo's") may be deemed probable cause?
See analyses from the New York Times, Slate, and SCOTUSBlog. At the Volokh Conspiracy, Orin Kerr thinks the state will likely lose in Jardines but prevail in Harris, mainly because of the defection of Antonin Scalia in the second case from the faction favoring stronger Fourth Amendment protections. At Reason Hit and Run, Jacob Sullum disputes some of Scalia's misconceptions about police motives.

Having skimmed both transcripts, I was pleased that Justices Anthony Kennedy and Sonia Sotomayor criticized the court's past ruling in Caballes that drug dog sniffs aren't a search because they're only looking for contraband. If the state prevails in Jardines it would unleash police to use drug-sniffing dogs door to door in neighborhoods and apartment complexes, much the same way some school districts can run drug dogs by every student's locker. So of the two, it is arguably more important from a pro-Fourth Amendment perspective.

However, it was disappointing that most justices seemed unconcerned with relatively high false-positive rates for drug-dog "hits." An Australian study discussed from the bench found some dog has hit rates of 12%; the Chicago Tribune last year found canines from suburban Illinois departments collectively had a 44% hit rate, meaning the dogs' signal that drugs were present was wrong more often than not. At a minimum the state should be required to keep records regarding dogs' hit rates in the field. And in any event, judging form the justices' debate, defense counsel can and should be questioning such issues even if the court doesn't draw some black and white line. The underlying questions in Harris won't go away regardless of which way the court rules.

The cases are expected to be decided by next summer.


Anonymous said...

It's my understanding that many of those "false positives" from dog sniffs are due to the drugs or contraband having been there at one time but were not there at the time of the sniff. Some dogs have such sensitive scent receptors that they can pick up those traces not seen by the naked eye. In either case, I'm looking forward to seeing how SCOTUS rules on this. I agreed, the state will have a hard time convincing the justices in Jardines, but might have a much better chance in Harris.

Gritsforbreakfast said...

"many of those "false positives" from dog sniffs are due to the drugs or contraband having been there at one time but were not there at the time of the sniff."

And others happen because of intentional or unintentional cues by the handlers, or because the dog smells hamburger from an old fast-food bag. Whatever the reason for the false positive, the fact remains that a dog's "alert" doesn't always - or in some instances, usually - mean drugs are likely to be found.

Anonymous said...

Hey Grits, while off topic I came your site looking for coverage on the DPS shooting to 2 illegal immigrants who were passengers in car shot at from a DPS helicopter while fleeing from poilce. Surprised to see no coverage. Happened in south texas

Grumpy said...

Google "Clever Hans" and read some of the referenced material for some insights on handler/dog interaction. At one time, maybe even now, in some federal programs, dogs and their handlers had to periodically pass a series of fully blind tests -- neither the dog nor handler knew whether or not drugs were present in the trial. An excessive false positive rate led to retraining of both the dog and handler. Subsequent failures led to the retirement of the dog.

Stringent standards for training and periodic testing would remove many of the concerns.

Anonymous said...

All of us dog lovers like to think that the dog is always right, like the Akita in the OJSimpson case, but 'tain't necessarily so. A "false positive" is still positively false.

Anonymous said...

The 12% accuracy rate is probably more acccurate than teh 44%. I've read other studies that show that, when used on the general population at random, the accuracy rates of these dogs is in the teens. The only way you achieve rates in the 40% to 60% range is because the dogs are often deployed whan an officer has already developed some suspicion. Thus, these rates are achieved by using the dogs on a population of whom there is already suspcion, not just the general population at random. So, the question is does a method that is only accurate less than 20% of the time establish probable cause to search. If the answer is yes, then probable cause doesn't mean much, does it? Now, the way the court should go is to require the officers to develop reasonable, articulable suspicion before deploying the dogs. This is what brings the accuracy rates up to the 40 to 60% range. But, then you have to ask, is a method that is only right about 1/2 the time sufficient to establish probable cause?

And, regarding the residual odor excused noted by the first commenter - this is crap. I suppose it is possible that dogs sometimes detect residual odor. The problem is, some handlers will testify that their dog is never wrong because every false alert is attributed to residual odor. This is an assertion that can't be proven and is likely total BS. If a handler testifies that his dog is never wrong, which some do using the residual odor excuse, he is a lying piece of crap that should be prosecuted for perjury.

As others have commented, handler cuing is a big issue, as is the claim of passive alerts which is also total BS. An officer can use a dog to justify a search just by saying the dog took an extra long sniff somewhere on the vehicle. And, incredibly, the courts go along with this garbage. Do we really still have a 4th Amendment -not when courts uphold this garbage.

Anonymous said...

There was a really good study done at UC Davis that showed just how prevalent handler cuing is. I can't remember all the details but you can google it. From what I recall, the dogs alerted more than 200 times even when there were no drugs. There were actually no drugs hidden anywhere during the study. The researches placed objects in certain areas and the dogs tended to alert in these areas which showed that handler cuing was occurring. If SCOTUS goes the wrong way on Harris, its time to stop the farce and admit that the court has removed the 4th amendment from the Constitution. I thought the Court wasn't allowed to amend the Constitution - we'll see, I guess.

doran said...

I'm waiting for a defense team to come up with a way to cross-exam the dogs, not just the handlers of the dogs.

Really. If the probable cause for a search were to be based upon a human telling law enforcement about the presence of drugs in a car or on a porch, that human could be cross-examined.

The best way to cross-examine a sniff dog would require the presiding judge to allow a small amount of contraband, say a misdemeanor amount of cannabis, to be used by the defense team. Hide it somewhere in the courtroom and see if the dog alerts. Or better yet, REPRESENT to the dog handler that the weed is somewhere in the courtroom, or contained in one of many brown paper sacks setting in plain site around the courtroom, when in fact there is no contraband at all.

I did something along this line years ago in a DWI case, at a time when cops were testifying to the odors of alcoholic beverages on the breaths of stopped drivers, to prove intoxication. We put an open bottle of near-beer, which is not an alcoholic beverage for purposes of DWI, and some bottles of soft drinks, in plain brown sacks on the table and asked the officer to identify which sack had the odor of alcoholic beverage. He picked the near-beer (but neither the presiding Judge nor the jury was impressed).

I am hopeful that a creative lawyer can devise some manner to demonstrate to a Judge, at a hearing to quash the fruits of an illegal search, that a particular sniff dog might not be a credible witness for purposes of probable cause.

C.O.S. said...

How about this, just give up the dope. Then you don't have to worry about Rin Tin Tin finding remnant seeds in your car, your bong in your suitcase, the smell still in the car... so on and so on.
If society took the pothead's approach to the marijuana "PROBLEM", overnight it would be legal to kill, steal, and molest anybody and everybody.
If a dog has barked 3 positives and dope wasn't found, no charge - no harm.
If a dog barked 2 times false and the third time discovered dope, charge the sons of bitches for breaking the law. Its all part of the paranoid pothead world. If you don't like it, again give up your dope smoking ways.

Red Leatherman said...

Your delusional.

Anonymous said...

Grits, if the old farts in black sheets agree on Jardines, it'll be the end of the jerryatric Court as we know it. Folks will eventually stop letting ARRPs with law degrees run us in to the ground just like they did over alcohol.

While they dribble on it, I predict this will be met head-on with picth forks & petitions. The Fake Cop industry can't wait to roll out in their surplus Crown Vics. Texans' will shoot first & let the neighbors call 911 the very first time they learn about grandma's house getting raided over seeds left on the carpet by the cousin of the friend that visted last Thanksgiving.

Anonymous said...


Please don't recognize or reply to the comment left by our 12 year old son (C.O.S.).

He was home sick from school and used our dragon naturally speaking. We are very sorry, just delete or ignore anything he sends in the future or he'll just want to continue from his friends computers.

Anonymous said...

Hello everyone this is C.O.S. again. My mom and dad cought me playing on their computer and as part of my time out I have to go to all of the websites and tell everyone I'm sorry.

I took my pills and everything seems to be getting better. I'm sorry.

Anonymous said...

Aside from the fact that drug prohibition is bad public policy, the idea that if a dog barks wrong 3x and it's no harm no foul, is wrong. The anxiety created when people stopped for a minor traffic violation who rightfully refuse consent searches and are then subjected to waiting for them to bring the dog who might falsely alert is AN UNREASONABLE SEARCH AND SEIZURE. It is a violation of our right to be secure in our person and property. It is not no harm no foul when innocent people are subjected to pressure to consent and then dog sniffed for no good reason. It is a civil rights violation by jack booted thugs with dogs, badges and guns who lack legal and moral basis for getting into our privacy. Get a warrant or leave people alone. And the idea that someone can just say the dog alerted and get a warrant for a search is insanity. It means that there is no way to prevent bad searches from a cop willing to lie for a warrant about made up events off camera. Luckily that never happens. There are only good people in uniforms.;-)

Anonymous said...

Scott, here is more on the subject:

Anonymous said...

Defense lawyers say that dog scent evidence smacks of forensic voodoo. The touted superior smelling ability of dogs is a fraud on so many levels.

Red Leatherman said...

@Anonymous 11/02/2012 03:33:00 PM:

The anxiety of being subject to a dog search is nothing compared to the sheer terror you get after being told the dog actually alerted a few times and they start going through your car and you begin to think that the cop is going to find something that couldn't possibly exist but he's going to surreptitiously discover somehow.

Anonymous said...

12:07 Dogs are surreptitious.