In two recent cases, both from Florida, the Supreme Court considered questions of the permissible use of trained dogs to generate the probable cause exception to the Fourth Amendment's qualified ban on search and seizure.
Florida v. Harris considered the question of the State's burden of proof with respect to exhaustive documentation of the training and service history of the dog, while Florida v. Jardines considered whether using a trained forensic dog within the curtilage of a home to detect information concerning the interior of that home constitutes a search. Neither case is particularly controversial.
In Harris, a K-9 officer with a trained dog in the car made a routine traffic stop. Noting an open beer can in a cup holder and Harris's nervous demeanor, the officer requested permission to search the vehicle. Harris declined, whereupon Officer Wheetley retrieved his dog, "Aldo," for a "free air sniff" around the truck. When the dog signaled that he detected drugs at the driver-side door handle, the officer concluded that he had probable cause and executed a search. The search did not yield any of the drugs Aldo was trained to detect, but did reveal culpable quantities of ingredients for the manufacture of one of them: methamphetamine. Harris was charged with possession of meth ingredients and released on bail. While out on bail, during another routine traffic stop with the same officer, the dog again signaled that he detected drugs at the driver-side door handle. A search was conducted and no contraband was found.
At trial, Harris moved to suppress the meth-ingredients on grounds that the dog's alert had not produced probable cause to search his truck. Evidence was adduced with respect to the dog's training and certification and there was argument concerning records of the dog's performance in the field in light of its two encounters with Harris, the former, a more-or-less positive identification, and the latter, an apparent false-positive. The trial court found probable cause, and the Florida Supreme Court reversed, holding that the fact of the dog's training and certification alone was insufficient: That court required the state to produce substantial evidence of the dog's performance history, including its frequency of false-positive alerts in service.
Such a "strict evidentiary checklist, whose every item the State must tick off" is anathema to the law of the land with respect to judicial determinations of whether probable cause has been established. The Supreme Court has consistently and explicitly favored examination of the totality of the circumstances:
We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. . . . We lamented the development of a list of 'inflexible, independent requirements applicable in every case.' . . . Probable cause, we emphasized, is 'a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules.' [internal citations (to 462 U.S. at 230, n.6 and 232) not quite omitted. -- ed.]There is some interesting discussion of dogs' training, certification, the prospective value of field data, the lack of data on false-negatives, and the value of a false-positive rate:
[I]f the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all [but] detected substances that were too well hidden or present in quantities too small for the officer to locate . . . [o]r the residual odor of drugs previously in the vehicle or on the driver's person." [the phrase "toke up in the parking lot" appears in a quotation of S. Bryson's Police Dog Tactics, 2nd ed., in footnote 2, here. -- ed.]There is this chilling statement: "If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume . . . that the dog's alert provides probable cause to search," which is softened somewhat with the Court's admonition that, notwithstanding this presumption, a defendant "must have an opportunity to challenge such evidence of a dog's reliability. . . ."
Thus, the Supreme Court unanimously rejected the Florida Supreme Court's rigid requirements, and the evidence seized from Harris's truck was permitted despite the fourth amendment challenge.
In Jardines, a detective set up surveillance on "an unverified tip" that marijuana was being grown in Jardines' home. After watching for some time (he "saw no . . . activity around the home, and could not see inside because the blinds were drawn"), he, another detective who was "a trained canine handler" and "Franky," a dog "trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler," approached the house. Upon nearing the front porch, the dog began a series of behaviors leading to its signal that it had found the strongest point of the odor of a substance among those it was trained to detect: "a positive alert for narcotics." The detective sought and obtained a warrant, on the basis of this evidence, and executed a search which revealed marijuana plants.
At trial, Jardines moved to suppress the seized plants, arguing that use of the dog had been an unreasonable search. The trial court granted the motion; the appeals court reversed; and the Florida Supreme Court suppressed the evidence, holding that use of the dog was a search unsupported by probable cause.
The Court decided this one five votes to four, with three of the majority filing a concurring opinion. Justice Scalia wrote the opinion of the majority, on property grounds; Justice Kagan wrote the concurrence, noting the case may have been similarly disposed on grounds of the reasonable expectation of privacy; Justice Alito, with the Chief Justice, Kennedy and Breyer, dissented.
Jardines is a "straightforward" case in light of Fourth Amendment principle that the Government may not intrude on the "persons, houses, papers and effects" of the people.
[T]he home is first among equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." This right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window. We therefore regard the area "immediately surrounding and associated with the home"--what our cases call the curtilage--as "part of the home itself for Fourth Amendment purposes." [citations omitted.]Having established "that the detectives had all four of their feet and all four of their companion's firmly planted on the constitutionally protected extension of Jardines' home, the only question is whether he had given his leave (even implicitly) for them to do so."
The Court reviewed the common law license implicit in the gate, path and doorbell or knocker which "typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Soliciters, peddlers, girl scouts, trick-or-treaters, and "a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'" [citation omitted.] But "the background social norms that invite a visitor to the front door do not invite him there to conduct a search" by "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence."
The three-justice concurrence would also find that a search had occurred, but on privacy grounds. Like the property-rights based opinion of the majority, the privacy opinion would have invoked the right of retreat, noted heightened privacy expectations in the home and curtilage, and "determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there." The detective's dog "was not your neighbor's pet, come to your porch on a leisurely stroll" but a "tool . . . geared to . . . convey clear and reliable information" to law enforcement.
The dissent says dogs are great, and especially Detective Bartelt's dog, "Franky."
Franky is the scion of the 12,000 year legacy of mutual association between canis familaris and humans, and inheritor of some three to eight centuries of proud and effective canine collaboration with law enforcement (homo sapiens imperiosa). Also, if you buy the opinion of the majority, Franky is magical: Despite being an unremarkable dog, just like any other, Franky transformed a police officer's permissible visit under the common law license to go knock on a door and seek an interview into a civil-rights violating unreasonable search simply by being led into Jardines' dooryard on a leash by his handler and innocently doing exactly what expensive and exhaustive training compelled him to do -- what came nurturally -- during that visit. Silly Franky.
Silly Jardines. Silly trial court and Florida's Supreme Court. Silly majority of the Supreme Court. The dissenting Justices do not believe in magical dogs.
It is worth noting that this case does not establish a property or privacy interest in the smells emanating from one's home. There is no such interest. This dog was taken from the street into Jardines' yard and led toward the porch, at which point it signaled a detection. The detectives departed with it. Because the yard enjoyed the property protection like those accorded to the home, and because the dog and its handler conducted a search there without license, detecting evidence in the yard that could not be detected by humans casually walking to and from the front door, that search violated the Fourth Amendment.
If the police had approached the door, and smelled marijuana themselves, without the aid of a "highly trained" and "specialized device for discovering" things not apparent to unaugmented human perception, or if the dog had caught the scent and sufficiently signaled that it emanated from Jardines' property while still out on the street, the probable cause likely would have been sustained.
I further imagine, given some reason for Franky to be there in the first place, the hallway of an apartment building would not enjoy similar privacy or property protections as the Court here found in the curtilage, dooryard and side garden of a house, although a person residing in an apartment still might, simply, not answer the door.
It is interesting to note that, finding probable cause established by the use and behavior of the drug sniffing dog during the routine traffic stop in Harris, the unanimous Court consistently refers to the subject "German shepherd trained to detect certain narcotics" by name, as "Aldo," (n=41) using the syntax "the dog" (n=24) only within quotations or when generalizing. In Jardines, on the other hand, the name of the dog, "Franky," appears only in the dissenting opinion, and then at a rate of once per page, while the majority and concurrence use "the dog," "a drug sniffing dog," "[the Detective]'s dog," "a trained police dog," "a forensic narcotics dog," and "drug detection dog." It is a "highly trained tool" like "high-powered binoculars" or thermal imaging, trained and used to a purpose. It is further interesting that Justice Kagan wrote both the Aldo-heavy opinion in Harris and the Franky-free concurrence in Jardines. At no point in any of the opinions was the dog ever described as a law enforcement officer.
Not having read all dog-sniff cases, I wonder whether it is a convention of the Court to use the dog's name in opinions that uphold evidence detected by the dog, and describe the animal impersonally (imdoggiely?) in opinions finding the dog's involvement to constitute an impermissible search.