Thursday, August 30, 2012

Justice Souter, Not as Retired as We Thought, Casts Absentee Ballot in Harris

Associate Justice David Souter wrote one of the most praised, and pilloried, dissents to a U.S. Supreme Court canine decision ever written, noting in Illinois v. Caballes, 543 U.S. 405 (2005), that the “infallible dog is … a creature of legal fiction.”  His views on the two canine cases in the fall docket of the Supreme Court, Jardines (Docket No. 11-564) and Harris (Docket No. 11-817), would be very interesting.  In Harris, the Supreme Court will consider whether establishing probable cause for a vehicle search requires that the police present complete field records for a dog, not just training and certification records.  Souter noted that training did not overcome fallibility in his Caballes dissent, but he did not elaborate on the issue of training specifically.  He would have had a chance to do so in Harris, but it seemed that his retirement from the Supreme Court in 2009 consigned his perspectives to legal history. 

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.  


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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