Today, the U.S. Supreme Court decided the second of two dog sniff cases before it this term. In Florida v. Jardines, the Court held that taking a drug-sniffing dog on the front porch of a house is a search for purposes of the Fourth Amendment. The Court held that the front porch is within the constitutionally-protected curtilage area of the house and that a general invitation to approach a house’s front door does not include an invitation to bring a dog onto the porch to conduct a search for drugs. The majority did not decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy.
In February 2013, the Court decided Florida v. Harris, another dog sniff case which sheds new light on appropriate ways of challenging the adequacy of probable caused based a drug dog’s alert. Jeff Welty’s Criminal Law Blog provides a full summary of the case, its holding, and the issues it raises.
In Harris, a Florida police officer searched a motorist’s truck after the officer’s dog alerted to the presence of narcotics in the vehicle. The officer’s search revealed materials used in the production of methamphetamine, but no controlled substances. Although the dog had completed several training programs, the police kept no records of its performance in the field. The defendant argued that a drug dog cannot provide probable cause unless it has been shown to be reliable in the field, as opposed to controlled environments. The Florida Supreme Court agreed and suppressed the evidence from the search.
The U.S. Supreme Court reversed, unanimously rejecting an inflexible rule requiring records of a dog’s performance in the field to establish probable cause. The Court held that the adequacy of a dog’s alert for the purposes of probable cause must be evaluated under the totality of the circumstances. The Court considered the dog’s completion of a “bona fide” training program to be sufficient to create a presumption of reliability. Because the defendant had no evidence to rebut that presumption, the Court agreed with the trial court that the officer had probable cause to search the truck.
The Court’s opinion in Harris may provide new opportunities for attorneys seeking to challenge probable cause in drug dog cases. The Court’s totality-of-the-circumstances approach, combined with its insistence that defendants be able to contest the state’s evidence, should open the door to discovery on all aspects of a drug dog’s training and performance. In addition to evidence of a dog’s performance in the field, attorneys should request discovery on the dog’s performance in training, as well as the general effectiveness of the training program the dog completed. Use of independent experts may also be necessary to evaluate such evidence and effectively contest the state’s evidence.