Florida Case Challenges Use of Drug Dogs


The Supreme Court will hear a case this fall from Florida that challenges the use of drug-sniffing dogs to perform warrantless searches outside someone’s home to establish probable cause to enter the home and executive a full search of the premises. The case is Florida v Jardines.

The Miami-Dade Police Department got an unverified tip that marijuana was being grown in the home of Joelis Jardines in 2006. An officer took his drug-sniffing dog to the house and walked him around the outside and the dog “alerted” to the presence of drugs. The dog’s alert was then used to establish probable cause for a search warrant, which was issued and the police did find marijuana growing in the house. Jardines moved to have the evidence suppressed on the grounds that the use of a drug-sniffing dog was, in and of itself, a search under the 4th Amendment and that the police must first establish probable cause before conducting such a search.

The Florida trial court agreed and suppressed the evidence. The state appeals court overturned that decision and the Florida Supreme Court overturned the appeals court, ruling in favor of Jardines. The state of Florida then appealed to the SCOTUS, which agreed last week to hear the case. The Rutherford Institute filed an amicus brief in the case that points to studies showing that drug-sniffing dogs have an extremely high error rate, thus making them useless in establishing probable cause.

A new double-blind study recently sent shock waves throughout the law enforcement community,shaking pre-existing beliefs that dog alerts are generally reliable. Over the span of two days, 18 trained and certified drug detection canines and their handlers took part in a meticulously prepared experiment to study the influence of handler bias on narcotics detection dogs’ performance.

Experimenters told the human handlers that drugs might be present at the testing site, but in fact, there were no contraband drugs in any of the test areas. Thus, any alerts would be false alerts, and zero alerts would be considered a perfect score. Each team completed two five-minute searches in each of four search areas. The results were astonishing. The correct response rate was only 15% (21 clean runs); the error rate was 85% (123 runs). Only one dog of the 18 trained drug detection dogs did not falsely alert.

The Davis Study concluded that the enormous number of false alerts confirmed researchers’ hypothesis that handler beliefs influenced the reliability of the trained drug detection dogs. In general, a dog’s performance is not solely
dependent on olfactory acuity. Context matters, and the interaction between training paradigm and the nature of the detection problem are cognitive factors that can impact performance. Dogs may thus be conditioned to respond to unintentional human cues. Human cues that direct dog responses without formal training include pointing, nodding, head turning, and gazing. Moreover, in the Davis Study, three handlers admitted to intentionally overly cueing their dogs to alert at certain locations.

Courts must understand that even highly trained dogs will respond to both intentional and unintentional handler cues. This inevitability taints the objectivity of the alert performance and imbeds bias in the dog’s decision-making and reasoning abilities. Other studies suggest that dog behavior is also affected by handler gender, personality and attentional cues such as eye contact and human eye, head and body orientation.

Justice Scalia may be the key to the outcome and he actually has a fairly good record when it comes to 4th Amendment issues. For example, he wrote the opinion in Kyllo v United States that the use of thermal imaging equipment outside the home to detect the use of grow lamps for marijuana was a search under the 4th amendment and required that probable cause be established before using it, rather than allowing the police to use that technique to establish probable cause to get a search warrant. Clarence Thomas was also on the right side of that one, along with Justices Ginsburg and Breyer. Justice Kennedy was on the wrong side.

And by the way, the Obama administration is, as it has been in every 4th amendment case I know of, firmly on the wrong side. They’ve filed a brief supporting the state of Florida and urging the court to overturn the ruling and allow such searches without a warrant.

Comments

  1. eric says

    Their second argument is also noteworthy: the dog search around the perimeter requires that the police tresspass on the person’s private property for a significant amount of time. That also makes it a search.

  2. Matrim says

    If there is one thing I hate about law enforcement technology, it’s that it is constantly used improperly. You give them a TASER, something that is designed to be used in place of a gun so that killing a person is less likely in a situation where lethal force is necessary, and they use it as a pain compliance device. You give them a search dog, something that can be useful in the execution of a search, and then they use it improperly to get cause for a search.

    *sigh*

  3. says

    If there is one thing I hate about law enforcement technology, it’s that it is constantly used improperly. You give them a TASER, something that is designed to be used in place of a gun so that killing a person is less likely in a situation where lethal force is necessary, and they use it as a pain compliance device. You give them a search dog, something that can be useful in the execution of a search, and then they use it improperly to get cause for a search.

    …you give them military/SWAT equipment to be used on the most dangerous, armed criminals, they use it to break up poker games.

  4. jaxkayaker says

    ” Justice Scalia may be the key to the outcome and he actually has a fairly good record when it comes to 4th Amendment issues. For example, he wrote the opinion in Kyllo v United States that the use of thermal imaging equipment outside the home to detect the use of grow lamps for marijuana was a search under the 4th amendment and required that probable cause be established before using it, rather than allowing the police to use that technique to establish probable cause to get a search warrant. Clarence Thomas was also on the right side of that one…”

    As in the old saying that even an olfaction-impaired drug dog can occasionally alert its handler correctly, once in a very great while Scalia and Thomas manage to find the rights in that originalist document they claim to be protecting. I wouldn’t bet the marijuana farm on it, though.

  5. Hercules Grytpype-Thynne says

    Dogs may thus be conditioned to respond to unintentional human cues.

    Any of those dogs named Hans?

  6. Artor says

    I am SO comforted by the rumors that Obama is going to end the drug war in his second term. I’m just going to hold my breath until that happens. Anyone with me?

  7. acroyear says

    “Their second argument is also noteworthy: the dog search around the perimeter requires that the police tresspass on the person’s private property for a significant amount of time. That also makes it a search.”

    That last part worries me. It may lead to a judgement on JUST that issue and ignore the larger 4th amendment general problem of the dogs. That is the kind of decision Roberts prefers to make, hit on a picky detail and ignore the substance arguments.

  8. says

    Jardines moved to have the evidence suppressed on the grounds that the use of a drug-sniffing dog was, in and of itself, a search under the 4th Amendment…

    Here Jardines is wrong: if I smell a smell coming from a property, or see something through an uncovered window, without having to enter the property, that’s not a “search” — I didn’t go out of my way to get the evidence, the evidence literally came to me.

    …and that the police must first establish probable cause before conducting such a search.

    Here Jardines is right: the reaction of a non-sentient creature (who could have been incorrectly trained, or reacting to cues, conscious or unconscious, from the humans it trusts) is not probable cause for any actual search.

    Besides, it’s not exactly impossible to train a “drug-sniffing dog” to “alert” according to a human’s cue, rather than to an actual smell of weed. If such conditioned reactions are “probable cause,” then for all practical purposes, that phrase loses any meaning it ever had.

  9. plutosdad says

    Raging Bee:
    But the cops were not just walking by with their dog and it alerted from the sidewalk. the cops specifically went to the house and walked around the edge of the house with the dog. If they smelled someone smoking marijuana they wouldn’t need the dog to get the warrant.

    So, there is a difference in intent.

  10. dave says

    Here Jardines is wrong:

    The Supreme Court of Florida disagrees with you.

    if I smell a smell coming from a property, or see something through an uncovered window, without having to enter the property, that’s not a “search” — I didn’t go out of my way to get the evidence, the evidence literally came to me.

    Perhaps but thats not what the cops did. Rather, as described by the Court, First, the dog “sniff test” that was conducted in the present case was an intrusive procedure. As explained more fully below, the “sniff test” was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity — i.e., the preparation for the “sniff test,” the test itself, and the after-math, which culminated in the full-blown search of Jardines’ home — lasted for hours. The “sniff test” apparently took place in plain view of the general public. There was no anonymity for the resident.

  11. eric says

    Follow-up to 10 and 12: ironically, the dogs might do better and the polices’ argument more valid if the police hadn’t put so much effort into it.

    The Davis testing showed a significant impact of officer signaling on the dog. So now, imagine instead of targeting this one location for an intrustive investigation, you’ve got a completely naive cop (i.e. one with no knowledge or expectation of drugs in any house) ‘walking a beat’ with a dog (and yes, I know they don’t do that…this example is just for illustration). In such a case, it might be reasonable to investigate a house the dog triggers on. Because the trigger is more likely to not have come from the cop. And the more bored, naive, distracted, etc. the cop is, the less likely they are to be the cause. But in this case, where you make a production out of it, the dogs are practically guaranteed to trigger. In fact it wouldn’te have surprised me at all if the cops just kept the dogs at the scene until they triggered.

  12. Ben P says

    Raging Bee:
    But the cops were not just walking by with their dog and it alerted from the sidewalk. the cops specifically went to the house and walked around the edge of the house with the dog. If they smelled someone smoking marijuana they wouldn’t need the dog to get the warrant.

    So, there is a difference in intent.

    Legally that really doesn’t matter. You’re barking up the wrong tree so to speak.

    Look at Kyllo for an example. The police had an anonymous tip that Kyllo was growing marijuana in his house. This alone was insufficient to get a warrant, the police visited the house and put it under surveillance, still insufficient to get a warrant.

    Then they pulled out a thermal scanner which showed lots of heat coming from the house. The tip plus the heat, which the police provided sworn testimony was indicative of the lights growers might use to grow marijuana indoors got them a warrant.

    The 4th amendment only prohibits “unreasonable” searches and seizures. The court has defined an “unreasonable” search and seizure where the police intrude in some area where you have a “reasonable expectation of privacy.”

    Generally you have no reasonable expectation of privacy in an unfenced yard, or in what can be seen through an open window, no matter the intent of the policy.

    The police using the thermal imaginer in Kyllo was ruled a 4th amendment violation because it was seeing something “through the walls” rather than “on the outside of the walls.” Scalia wrote the opinion and spoke of a “firm but also bright line” at the entrance to the house.

    The dissent in Kyllo argued there was no search because all the thermal scanner could see was something any sufficiently sensitive person could have felt by walking up and touching the wall with his hands, which would not be a search.

    The same is really true here. I’ve read the Scotusblog summary, but I haven’t read the cert petitions or the florida opinions in Jardine so I don’t know specifically how the issues are framed, but I suspect the questions presented are:

    1. is using a dog on the exterior of a house more akin to an officer walking by the house and smelling marijuana (reasonable), or the intrusive thermal imaging scan ruled unreasonable in Kyllo?

    2. Even if the dog’s search was reasonable, in light of the circumstances (anonymous tip that Jardine was growing Marijuana) is the dog’s indication sufficiently reliable to create probable cause with no other evidence?

  13. wscott says

    @ Dave: Interesting. So if I understand, they didn’t say that having the dog hit from outside the home was in itself a search, but it was the totality of the operation? I can see that, but of course it begs the question of where do you draw the line? Is one officer and a dog okay, but 3 is too many? 10 minutes is okay but 30 minutes is too much? And I don’t quite get the bit about “no anonymity for the resident.” That’s pretty much true anytime teh cops come to your house, or for that matter anytime they’ve pulled your car over for speeding.

    All of which is a separate issue from the reliability of the dogs hitting, which will be very interesting to watch. The infalibility of K-9s is a deeply-held belief in law enforcement circles.

  14. Ben P says

    (and yes, I know they don’t do that…this example is just for illustration).

    Actually they do in some circumstances. School sweeps are one common area, and airport searches are another. They also do this at border checkpoints. Running the dog past a line of cars.

    IMO those are the areas where dogs work. I’m much more dubious about bringing a dog to a designated target to “see if the dog indicates” then using the indication of the dog to obtain a search warrant.

  15. wscott says

    1. is using a dog on the exterior of a house more akin to an officer walking by the house and smelling marijuana (reasonable), or the intrusive thermal imaging scan ruled unreasonable in Kyllo?

    I think you’ve hit the nail on the head. And there are decent arguments for both positions. The scents the dog is picking up are, by definition, outside the house, so you could argue there’s no expectation of privacy; it is same-in-kind as the officer smelling pot; the dog is just “better” at it. But as you note, a similar argument didn’t fly for thermal heat (which is also technically outside the home).

  16. dave says

    wscott:
    Interesting. So if I understand, they didn’t say that having the dog hit from outside the home was in itself a search, but it was the totality of the operation? I can see that, but of course it begs the question of where do you draw the line? Is one officer and a dog okay, but 3 is too many? 10 minutes is okay but 30 minutes is too much?

    Yes, its the totality of the operation, and unfortunately, there is no clear line, which is why we need the courts. An officer walking down a line of cars with the dog is clearly on one side of the line. Taking the dog into your house is clearly on the other side of the line. Exactly where between those two extremes the line falls is often an open question determined by who has the better lawyer.

    And I don’t quite get the bit about “no anonymity for the resident.”

    Basically, they are trying to distinguish from one of the early landmark cases on dog sniffing: US v Place where one of the reasons stated that the sniff test was not a search was because it did not subject the testee to embarrassment and inconvenience.

    One other thing I would bring up having now read the FL Opinion, they quote the dog handler as follows: “The alert for the dog, basically, is the minute I observed out of normal behavior for him.” Now my understanding of drug-sniffing dogs was that they were trained to take a specific action when they identified drugs, and to be fair, the officer then goes into a description of bracketing and how the dog finally sat at the location of the strongest smell, this being the door. But I am particularly concerned with the idea that any “out of normal behavior” for the dog is alerting. If this is the standard that many police are using, it is not wonder that false alerts are such a problem. Under this standard, the officer doesnt even need to cue the dog, just subconciously adjust what they consider “alerting.”

  17. wscott says

    @ dave – thanks. I get the idea, tho I hate it when the courts create these vague open-to-interpretation areas. It’s unfair to the officers to make them essentially guess what the courts will and won’t pass muster. And it’s bad for civil liberties because most courts seem to err on the more-permissible side.

    And yeah, using vague “out of normal behavior” rather than clearly defined alerting critereon is…problematic to say the least.

    @ rbh3: Yeah, although there’s no doubt that dogs are in fact capable of smelling pot, and are much better at it than people.

  18. Ben P says

    Now my understanding of drug-sniffing dogs was that they were trained to take a specific action when they identified drugs, and to be fair, the officer then goes into a description of bracketing and how the dog finally sat at the location of the strongest smell, this being the door. But I am particularly concerned with the idea that any “out of normal behavior” for the dog is alerting.

    I wrote a long post sort of on this topic in the last dog thread. I grew up with shepards and take mine to the same club where the K9 dogs in training go for basic obedience.

    Short version of the answer is that there’s two types of narcotics dog training, active indicating and passive indicating. Most of the time active indication training is used for dogs like shepards and malinois, while passive indication training is used more for hounds and beagles. Although any dog can really be trained for either method.

    An active indicator dog is trained to think that a favorite toy is hidden wherever it smells the drugs, so it will sniff and paw and dig at the drug smell.

    A passive indicator dog is trained to sit down near the source of the odor and then be rewarded.

    active indication is sometimes considered more accurate but passive indication is useful where a dog pawing and digging at something would be undesirable (say, running the dog past a line of bags at an airport).

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