K-9 reliability on trial: Key facts in this fall's Supreme Court case
The questions of how a detector dog's reliability may be proven and what that reliability means in terms of providing probable cause for a vehicle search will be considered by the U.S. Supreme Court this fall
By Ted Daus
In April 2011, the issue of dog reliability and how a drug canine’s certification, training and real-world deployment records would be evaluated in court was decided in Florida. The case was Harris v. State of Florida and it was decided by the Florida Supreme Court. The court wrote an opinion that basically ignored the dog’s certification and weekly training records, instead concentrating exclusively on the real-world deployment records. Thus, the court focused on the percentage of alerts and finds of real drugs versus alerts and no finds of drugs at all.
This case was recently granted review by the United States Supreme Court; it will be argued before the Court this fall. This article will examine the Florida Supreme Court’s flawed logic in the ruling of Harris v. State of Florida.
The Florida Supreme Court held that the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog for purposes of determining probable cause for a search. This ruling conflicted with the finding of three other district courts of appeal in Florida and the U.S. Supreme Court. The basic question in the case was as follows.
The Court’s Issue
The issue of when a dog’s alert provides probable cause for a search hinges on the dog’s reliability as a detector of illegal substances within the vehicle. We hold that the state may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog's reliability.
In this case, we specifically address the question of what evidence the state must introduce in order to establish the reasonableness of the officer's belief — in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer's belief in the dog's reliability as a predicate for determining probable cause.
The Basic Facts
The basic facts of the case are that in July 2006, the State charged Clayton Harris with possession of the listed chemical pseudoephedrine with intent to use it to manufacture methamphetamine, more commonly known as meth. The defendant, Harris, subsequently moved to suppress seized evidence, including the pseudoephedrine, arguing that it was found pursuant to an illegal search of his truck.
At the hearing on the motion to suppress, the evidence established that on June 24, 2006, Liberty County Sheriff 's Canine Officer William Wheetley and his drugdetection dog, Aldo, were on patrol. Wheetley conducted a traffic stop of Harris's truck after confirming that Harris's tag was expired. Upon approaching the truck, Wheetley noticed that Harris was shaking, breathing rapidly, and could not sit still. Officer Wheetley also noticed an open beer can in the cup holder. When Wheetley asked for consent to search the truck, Harris refused. Officer Wheetley then deployed Aldo. Upon conducting a “free air sniff” of the exterior of the truck, Aldo alerted to the door handle of the driver's side.
Underneath the driver's seat, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag wrapped in a shirt. On the passenger's side, Officer Wheetley discovered eight boxes of matches containing a total of 8,000 matches. Wheetley then placed Harris under arrest. A subsequent search of a toolbox on the passenger’s side revealed muriatic acid. Officer Wheetley testified that these chemicals are precursors of methamphetamine. After being read his rights, Harris stated that he had been cooking meth for about one year and most recently cooked it at his home in Blountstown, Florida, two weeks prior to the stop. Harris also admitted to being addicted to meth and needing it at least every few days.
Handler’s Training, Experience
As of the day that Officer Wheetley searched Harris's truck, Officer Wheetley had been a law enforcement officer for three years and had been a canine handler since 2004. In January 2004, Aldo completed a 120-hour drug detection training course at the Apopka (FL) Police Department with his handler at the time, Deputy Sheriff William Morris. In February 2004, Aldo was certified with Morris as a drug-detection dog by Drug Beat K-9 Certifications. Aldo is trained and certified to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine.
In July 2005, Aldo and Officer Wheetley became partners. In February 2006, they completed a 40-hour training seminar with the Dothan (AL) Police Department. Officer Wheetley testified that he and Aldo complete this seminar annually. Additionally, Wheetley trains Aldo four hours per week on detecting drugs in vehicles, buildings, and warehouses. For example, Wheetley may take Aldo to a wrecking yard and plant drugs in six to eight out of 10 vehicles. Officer Wheetley then directs Aldo to perform a search, moving in a “W pattern, up, down, up, down.”
Aldo must alert to the vehicles with drugs, and he is rewarded for an accurate alert. Officer Wheetley described Aldo's success rate during training as “really good.” Aldo's training records, which Officer Wheetley began keeping in November 2005, were introduced as evidence. These records reveal that on a performance level of either satisfactory or unsatisfactory, Aldo performed “satisfactory” 100% of the time.
With regard to Aldo's performance in the field, Officer Wheetley testified that he deploys Aldo approximately five times per month. He maintains records of Aldo's field performance only when he makes an arrest. Wheetley testified that he does not keep records of Aldo's alerts in the field when no contraband is found; he documents only Aldo's successes. These records were neither produced prior to the hearing nor introduced at the hearing. Thus, it is impossible to determine what percentage of time Aldo alerted and no contraband was found following a warrantless search of a vehicle. This is one reason why records of all deployments are important. A handler can never anticipate what a particular judge or court will or will not focus on, but the lack of entries will be considered against the handler and his or her dog.
Officer Wheetley testified on the issue of residual odor. According to Wheetley, Aldo can pick up residual odor of illegal drugs on an object when, for example, someone has the odor on his or her hand and touches a door handle. When asked how long a residual odor can remain on the handle, Officer Wheetley stated that he was not qualified to answer that question.
Officer Wheetley also testified that Aldo presumably alerted to residual odor of meth on the door handle, indicating that he did not believe that Aldo alerted to any of the substances found in the vehicle. Upon crossexamination, Wheetley testified:
Officer Wheetley: When my dog alerts to a door handle, it usually means, in the cases which I have worked in the past, that somebody has either touched the narcotics or has smoked narcotics, the odor is on their hand and when they touched the door handle is when the odor transfer occurs. And that's when my dog will pick up on the residual odor of the narcotics.
Defense Counsel: So you have no idea — do you know how long ago somebody might have touched that vehicle?
Officer Wheetley: Ma'am, you're asking me a question for an expert. I don't feel comfortable answering that.
Defense Counsel: Do you know whether it could have been someone other than the person driving the vehicle?
Officer Wheetley: I can't answer that question, ma'am. … The residual odor is there. That's what caused my dog to show the response. So if it's there, my dog responded to the odor, which — apparently the odor was there.
Defense Counsel: But you have no way of establishing in this case that this is not just a false alert by your dog?
Officer Wheetley: Ma'am, we found the precursors to methamphetamine, all the listed chemicals were in the truck. He admitted to not being able to go more than two days without using. I think that pretty much places the odor on the door handle.
Defense Counsel: The dog, however, did not alert to any of the things he has been trained to alert to as far as your knowledge?
Officer Wheetley: Ma'am, he was trained to alert to the odor of narcotics, and he alerted to the odor of narcotics on the door handle.
The Court’s Analysis
This underscores one of the central reasons why the fact that a dog has been trained, standing alone, is not enough to give an officer probable cause to search based on the dog's alert. The handler acknowledged that a trained dog, doing what he has been conditioned to do, imparts to the officer merely that he detects the odor of contraband. To be sure, as the handler maintained, this may not be a false alert when assessing the success of the dog's conditioning. But for Fourth Amendment purposes, it is neither false nor positive. The presence of a drug's odor at an intensity detectable by the dog, but not by the officer, does not mean that the drug itself is present. The court found that in the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified.
“[S]imply characterizing a dog as ‘trained’ and ‘certified’ imparts scant information about what the dog has been conditioned to do or not to do, or how successfully,” the court stated. Second, and related to the first concern, 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. As the Second District aptly observed, “[a]n officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog's alert will yield contraband. Of course, mere suspicion cannot justify a search.”
The Florida Supreme Court found that a related problem is the possibility of handler cuing, even though this topic was never argued to the trial judge. The Court wrote in Harris, “Even the best of dogs, with the best-intentioned handler, can respond to subconscious cuing from the handler. If the handler believes that contraband is present, they may unwittingly cue the dog to alert regardless of the actual presence or absence of any contraband. Finally, some handlers may consciously cue their dog to alert to ratify a search they already want to conduct.”
Odor Is Odor: Ignored
The state argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle.
The Florida Supreme Court clearly was on a mission to find that without a statistical analysis ending in a percentage of alerts with finds of real drugs versus alerts without finds of any drugs which is contrary to the law from the U.S. Supreme Court. The Florida Supreme Court entered into an analysis of “cuing” when there was no evidence of cuing in this case, nor was the argument ever made to the trial judge that the handler cued the dog to alert.
This fall, it is hoped that the U.S. Supreme Court will shut the door and set the record — and the Florida Supreme Court — straight, meaning that:
• Ignoring training records and narcotic certifications is not acceptable when evaluating reliability; and that
• When the U.S. Supreme Court has ruled in the past that an exterior alert by a “well trained and certified” drug dog provides probable cause to search the vehicle, they meant what they said.