The Florida Supreme Court has recently become the major state court for the analysis of canine evidentiary issues. In Jardines, discussed in a prior blog, the court issued an important decision on the need for probable cause to conduct front-door sniffs. Now, in Harris v. Florida, 2011 WL 1496470 (2011), the same court has examined probable cause for warrantless searches during a traffic stop.
On June 24, 2006, Liberty County Sheriff’s Canine Officer, William Wheetley, was on patrol with Aldo, a single-purpose narcotics detection dog. Wheetley stopped Harris’s truck after confirming that the truck’s tag was expired. Harris appeared nervous and Wheetley noticed an open beer can in the cup holder. Wheetley asked for consent to search the truck, which was refused. Wheetley then deployed Aldo, who alerted to the door handle of the driver’s side. Wheetley discovered over 200 pills of pseudoephedrine in a plastic bag wrapped in a shirt under the driver’s seat. On the passenger side, he discovered boxes containing 8,000 matches. Muriatic acid, a precursor to methamphetamine, was found in a toolbox. These ingredients suggest that the items were being used in the red phosphorous method of manufacturing methamphetamine (as opposed to the one-pot method).
The issue was not whether the dog’s sniff of the exterior of the vehicle was a search, as this was resolved by the U.S. Supreme Court in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), which held that such a sniff was not a search. Rather, the issue here was whether the alert of the dog during the sniff provided probable cause for a search of the car. The court concluded that the prosecution bore the burden of establishing probable cause, and that it “must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog.” The FLorida Supreme Court concluded that the prosecution had not met this burden.
Aldo had completed a 120-hour drug detection training course (a relatively limited number of hours compared to most programs) in 2004 and was certified with Deputy Sheriff William Morris as a drug detection dog by Drug Beat K-9 Certifications. Aldo was trained and certified to detect marijuana, cocaine, ecstasy, heroin, and methamphetamine, but was not specifically trained to recognize pseudoephedrine, a precursor to meth.
There was no testimony as to whether a dog trained to detect and alert to meth would also detect and alert to pseudoephedrine. In a 1999 10th Circuit case, U.S. v. Patten, 183 F.3d 1190, a dog trained to detect meth had alerted to ephedrine. The 10th Circuit recognized the problem of alerting to a precursor to meth, but found there was sufficient other evidence for the arrest and did not delve into the issue. Patten was not mentioned in Harris. A number of cases have involved a dog alerting, followed by discovery of pseudoephedrine, but the fact the dog was not trained to recognize the precursor was not analyzed. See U.S. v. Dyer, 464 F.3d 741 (7th Cir. 2006); U.S. v. Hernandez, 93 F.3d 1493 (10th Cir. 1996).
Officer Wheetley and Aldo became partners in July 2005, and Wheetley continued the dog’s training from that point. Wheetley’s training records with Aldo were introduced in evidence. Although Wheetley testified that Aldo performed satisfactorily 100% of the time (something other evidence belied), the Florida Supreme Court noted that “Officer Wheetley did not explain whether a satisfactory performance includes any alerts to vehicles where drugs were not placed.”
Officer Wheetley testified that he deployed Aldo about five times a month, but maintained field records only when an arrest was made, and “does not keep records of Aldo’s alerts in the field when no contraband is found.” The court stated that because only successes were being recorded, “it is impossible to determine what percentage of time Aldo alerted and no contraband was found following a warrantless search of the vehicle.” Curiously, one instance of such an alert without a find involved Harris himself:
“About two months after the June 24 stop [the subject of the case], Officer Wheetley stopped Harris again for a traffic infraction. On this stop, Officer Wheetley again deployed Aldo, who alerted to the same driver's side door handle. A subsequent search of the truck revealed only an open bottle of liquor and no illegal substances.”
Wheetley explained such an occurrence as an alert to residual odor but, when “asked how long residual odor can remain on the handle, Officer Wheetley stated that he was not qualified to answer that question.” Courts have considered the length of time residual odor may last and thus be detected by a dog. See Jennings v. Joshua Independent School District, 877 F.2d 313 (5th Cir. 1989), where testimony indicated residual odor could last four to six weeks.
The defense argued that the prosecution had failed to establish Aldo’s reliability. The trial court, however, denied a motion to suppress and found probable cause for the search. The trial court did not make a finding as to the dog’s reliability. An appellate court affirmed the denial of the motion to suppress, but the Florida Supreme Court accepted the case based on a conflict between the state’s appellate courts. The Supreme Court noted that three districts in the state had concluded that if a defendant wished to challenge the reliability of a dog, it was “the defendant’s burden to introduce field performance records of the dog or other evidence, such as expert testimony.” (In addition to the lower court in Harris, this position was taken in Florida v. Laveroni, 910 So.2d 333, 336 (4th DCA. 2005) and in Florida v. Coleman, 911 So.2d 259, 261 (5th DCA 2005).)
On the other hand, the Second District Court of Appeals, in Florida v. Matheson, 870 So.2d 8 (2nd DCA 2003), held that training and certification, standing alone, were insufficient to give probable cause for a search based on the dog’s alert. Training and certification, according to that court, could only provide a “mere suspicion,” which could not justify a search. The court said that “the most telling indicator of what the dog’s behavior means is the dog’s past performance in the field.” The court noted that training and certification programs “vary widely in their methods, elements, and tolerances of failure.” (To the same effect, see Florida v. Gibson, 968 So.2d 631 (2nd CDA 2007).)
The Supreme Court decided that Matheson and Gibson were correct, and disapproved of the cases going the other way. The court noted that establishing probable cause required an analysis of the facts and circumstances of the case. As to drug dogs:
“Because the dog cannot be cross-examined like a police officer whose observations at the scene may provide the basis for probable cause, the trial court must be able to assess the dog's reliability by evaluating the dog's training, certification, and performance, as well as the training and experience of the dog's handler. Similar to situations where probable cause to search is based on the information provided by informants, the trial court must be able to evaluate the reliability of the dog based on a totality of circumstances…. Like the informant whose information forms the basis for probable cause, where the dog's alert is the lynchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists. If a dog is not a reliable detector of drugs, the dog's alert in a particular case, by itself, does not indicate that drugs are probably present in the vehicle. In fact, if the dog's ability to alert to the presence of illegal substances in the vehicle is questionable, the danger is that individuals will be subjected to searches of their vehicles and their persons without probable cause. Conversely, if a dog is a reliable detector of drugs, the dog's alert in a particular case can indicate that drugs are probably present in the vehicle. In those circumstances, the drug-detection dog's alert will indicate to the officer that there is a 'fair probability that contraband' [quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)] will be found.”
Obviously, a court and any police department would expect that records would be kept of any tip an informant gave that proved inaccurate.
The court may imply that if training and certification were uniform, they might stand on their own as supporting probable cause:
“We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. In contrast to dual-purpose drug-detection dogs, which are apparently certified by FDLE [Florida Department of Law Enforcement], no such required certification exists in this state for dogs like Aldo, who is a single-purpose drug-detection dog.”
The Florida Supreme Court also noted that “any presumption of reliability based only on the fact that the dog has been trained and certified does not take into account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors.” The court described cueing as a type of handler error, and said that the trial court must also focus on the training of the handler.
“Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog's reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog's performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.”
The court noted that the question of the dog’s reliability should not be a burden placed on the defendant, who would have “to uncover all records and evidence that might challenge a presumption of reliability—evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record….” Inevitably, once the information is provided to the defendant, it will be up to counsel and defense experts to highlight the significance of defects.
The court summarized its conclusions:
“[W]e adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability.”
The court also warned Wheetley and other handlers in Florida:
“If an officer fails to keep records of his or her dog's performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs.”
The Florida Supreme Court concluded that the trial court should have granted the motion to suppress, and remanded for proceedings consistent with this finding. It seems unlikely that there will be a retrial.
One justice dissented, arguing that the majority opinion “imposes evidentiary requirements which can readily be employed to ensure that the police rely on drug detection dogs only when the dogs are shown to be virtually infallible.” The majority denied this characterization of its opinion, saying only that it was placing the burden on the prosecution.
It might have been best had the court fashioned some sort of relief for those handlers in the state who have not kept the records the decision effectively requires them to keep in the future. Presumably some handlers were, like Wheetley, under the impression that they need not keep records of non-arrest deployments of their dogs, and it might be difficult to reconstruct this kind of information, making courtroom use of the alerts of such canine teams impractical for some time. Some sort of interim testing, particularly testing involving negative controls (also called zero or blank trials), should allow dogs to continue working. After all, the lack of records does not establish that a dog is unreliable, only that the handler may have been, so this situation is not quite analogous to a failure to keep records on informants whose information turns out to be false.
The decision is correct. Canine officers should be expected to keep complete records, as is now generally expected in police canine work. It should be of as much concern to handlers, as it may ultimately be to a defendant, if their dogs regularly alert without targets being found. Keeping records will also allow handlers to detect changes in alert patterns, which may indicate cueing or other failures, allowing these issues to be addressed. Not only the handlers, but also supervisory personnel, should regularly monitor canine team records for performance changes.
This blog was written by John Ensminger and Gene Papet. Other federal and state cases referred to in Harris will be described in detail in Police and Military Dogs.
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