Not so fast! By
special designation to the First Circuit Court of Appeals, Justice Souter has
issued a decision on a matter involving a drug dog in Massachusetts. Although he makes no specific reference to Harris, his opinion in the First Circuit case, U.S. v. Grupee, seems to tell us something
about what he would say if he were still a member the high court. What he has written in Grupee can hardly be considered groundbreaking, constrained as he
was by precedent, but it is to be hoped that his former colleagues on the high
court will again consider his cautions in Caballes
and perhaps pick up on his dictum in Grupee.
Drug Investigation in
New Bedford
In 2008, the Southeastern Massachusetts Gang Task Force was
investigating street gangs in New Bedford, Massachusetts, and sought a
warrant to arrest Desmond Rodriques for drug trafficking. In executing the warrant at the residence
where Rondriques was living, they found other individuals who lived in the same
house, including Grupee, as well as guns, drugs, and drug paraphernalia. A drug detection dog that had come along
alerted to a black Infiniti parked in the driveway. The officers paused and applied for two
additional warrants, one to search the house for firearms and drugs, and the
other to search the car. The additional
warrants were issued. In searching the
car, they found a bag of cocaine and 9 millimeter ammunition. While the initial search of Grupee’s room had
yielded papers and firearms, a second search uncovered drugs and records of drug sales.
Grupee argued that the warrant to search the Infiniti was based on insufficient
information about the drug dog because, in Justice Souter’s words, “the only
information given to the magistrate about the dog’s capacity to alert reliably
and without excessive false positives was this laconic statement that the dog
was a Massachusetts State Police drug detection dog.” Grupee noted that the affidavit said nothing
about State Police standards for training drug-sniffing dogs or about the
particular dog’s success and error rate.
The federal district court for the District Court of
Massachusetts denied Grupee’s motion to suppress, and Grupee appealed.
First Circuit Review
Sitting by designation on the First Circuit, and writing
that court’s decision in the matter, Souter said that Grupee’s point about the lack of information concerning the dog was not
fatal to the warrant, but acknowledged that there was nothing "captious about
it." Captious is a curious adjective
for the situation. Apparently this is
meant to say that such an objection is not trivial or an overly strained effort
to look for faults. In effect, then,
Grupee’s point has real substance.
Souter continues:
“The reasonableness of relying on the behavior of a police dog
depends on what one knows about the dog and the person who handles it, see United States v. Race, 529 F.2d 12, 14
(1st Cir. 1976); United States
v. Berry, 90 F.3d 148, 153 (6th Cir. 1996), and the police can provide this sort of
information in a readily available resume of general certification standards
and particular performance statistics, dog by dog, to be attached to a warrant
application on a moment’s notice. Here,
in contrast, the magistrate was told only that a dog was used by the
Massachusetts State Police to sniff out narcotics.” (emphasis added)
First, let’s look at the cases summarily cited in the
passage. In U.S. v. Race, the dog in question had undergone “intensive training
in detecting drugs … had at least 4 hours a week of follow-up training since
then, as well as work experience, and … strong reaction he had to crates was
one that in the past had invariably indicated the presence of marijuana,
hashish, heroin or cocaine.” Thus, the
First Circuit had as far back as 36 years ago been concerned with both the
dog’s training and field performance, even if not in a statistical manner.
In the Sixth Circuit case, U.S. v. Berry, an affidavit stating that the dog and handler “have
both been trained, qualified in the processes and procedures required to
properly conduct [narcotics] investigations” was “sufficient to establish
training and reliability of the drug-detecting dog.” Also, the “affidavit’s reference to the dog
as a ‘drug sniffing or drug detection dog’ reasonably implied that the dog was
a ‘trained narcotics dog.’” It was for
the latter implication that Souter mentions this case, as can be seen from what
he says next about the dog in Grupee:
“But parsimonious though this disclosure was, we think it
passes muster under existing circuit precedent on searches authorized by a
warrant, which holds that describing a drug detection dog as ‘trained’ and in
the company of a drug detection agent is sufficient to allow a magistrate
‘reasonably [to] infer’ that a trained law enforcement dog has ‘attained a high
degree of proficiency in detecting the scent of narcotics.’” Here Souter quotes another 1976 case, U.S. v. Meyer, 536 F.2d 963 (1st
Cir. 1976), where the First Circuit had stated:
“From the record
it is evident that affiant was an experienced DEA agent and that the dog had
been ‘trained’ and used in drug investigations. Thus the magistrate could
reasonably infer that the ‘trained dog’ had attained a high degree of
proficiency in detecting the scent of narcotics.”
Souter
acknowledges that the affidavit in Grupee
had not stated that the dog was trained, as the affidavit in Meyer had, but he brushes this aside:
“But ‘upon a
common sense and realistic reading,’ an affidavit by a state police officer on
the scene of a drug raid, attesting that the Massachusetts State Police is the
dog’s ‘employer’ (as Grupee puts it), amounts to the same showing of
reliability accepted in Meyer."
Souter also
mentions that there was other evidence by the time the additional
warrants were issued besides the drug dog’s alert. In this of course he is correct, and there is
no doubt that the First Circuit reached the correct decision in affirming the
federal district court of Massachusetts. The warrant was properly issued.
Take a Second Look at Souter’s Dictum
Let us return to
Souter’s discussion of the canine issues.
In his description of Grupee’s objection concerning the lack of evidence
that the dog could alert reliably and without excessive false positives, Souter
notes that the only information available to the magistrate was a “laconic
statement that the dog was a Massachusetts State Police drug detection dog.” Laconic is another curious adjective, meaning
terse, sparing and pithy, suggesting that a person not of Spartan disposition
would probably say more.
Souter continues
after his reference to Race and Berry:
“[T]he police can provide this sort of information [State
Police standards for training drug-sniffing dogs and the particular dog’s
success and error rate] in a readily available resume of general certification
standards and particular performance statistics, dog by dog, to be attached to
a warrant application on a moment’s notice.”
Though dictum in Grupee,
it is not hard to see that this could be the basis of an opinion, even a
decision, in Harris. Souter
then says, as we have already noted: “Here, in contrast, the magistrate was
told only that a dog was used by the Massachusetts State Police to sniff out
narcotics.” This is certainly what the
State of Florida and their supporting amici are arguing is sufficient in Harris.
It was sufficient in Grupee, but in this case Souter was
speaking as a member of the First Circuit and was apparently satisfied with by its often ancient precedent, at least where there were other reasons besides the dog for issuing the warrant.
Conclusion
It might be argued that Justice Souter did not have Harris in mind at all. But then, one could also argue that the moon
is made of green cheese.
U.S. v. Grupee, Docket No. 11-1291 (1st
Cir., June 20, 2012)
This piece was written by John Ensminger and L.E.
Papet. For a discussion of Harris and Jardines, see our analysis in the New York Law Journal. All the canine cases cited in Grupee are discussed in broader contexts in Police and Military Dogs.
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