The U.S. Supreme Court will hear two cases involving the use of drug dogs that could be very important in restoring some minimal safeguards from the 4th Amendment — or could further entrench the abuse of power routinely engaged in by law enforcement around the country. Orin Kerr previews the two cases, Florida v. Jardines and Florida v. Harris. The first case:
Florida v. Jardines raises the question of when the police can take a drug-sniffing dog up to the front steps and front door of a single-family home to sniff for the smell of drugs emanating from inside. Either they can do that whenever they want (the government’s view), or they can do so only with a warrant (the defendant’s view). The choice is pretty stark, and I suspect most people and most Justices will have an intuitive sense that either it’s perfectly fine to bring the dog to the front steps or it’s a pretty dangerous practice that clearly steps over the line. There’s lots of room in existing doctrine for either result, so in many ways the case boils down to which instinct prevails: Do you see this as a case of the police going wherever the public can go or as a case of the police using a very sensitive surveillance device to monitor the inside of the home?
And the second, which is even more important:
In Harris, the issue is how we know that a drug-sniffing dog is sufficiently trained that its alert creates probable cause that can then justify a search. A dog might be a reliable drug-detector or might not be, but it’s not like we can put the dog on the stand and have defense counsel cross-examine him about whether he really smelled the drugs. The state argues that judges should defer to canine professionals for the probable cause determination: If canine professionals announce that the dog has been trained, then the dog’s alert is always probable cause. The defense argues that we can’t rely on canine professionals and that we need to know the dog’s record of success in past searches to know whether the dog’s alert is reliable…
So how should the Court decide the case? By rejecting absolutes, I think. First, I don’t think it makes sense to say that an alert by a “certified” dog automatically creates probable cause. We just don’t know enough about the “certification” process to know if that’s true (indeed, there is no one certification standard, so it’s hard to know what that even means). At the same time, I don’t think it makes sense to say that the state has to produce the records of past alerts to establish probable cause in each case. Probable cause always depends on the circumstances and a close look at all the facts. As we lawyers put it, it requires considering “the totality of the circumstances.” In some cases, the dog sniff alone should be enough to create probable cause. In other cases, it won’t be, and the state would be free to put on other evidence to try to meet its burden (including records of past alerts). I don’t think there’s a one-size-fits-all answer to the question. So I think the Court should emphasize the fact-specific nature of the question and the government’s burden of proof to justify the warrantless search, and then remand to the state supreme court.
I think Kerr is absolutely wrong on the second case. Yes, there should be an absolute and it should be a complete rejection of the legal doctrine that an “alert” by a drug-sniffing dog is all it takes to conduct a warrantless search. Study after study shows that drug-sniffing dogs are wrong a staggering percentage of the time. In one recent double blind study, only 1 out of 18 certified drug-sniffing dogs did not falsely alert to the presence of drugs in the test. But there’s no way in hell the Supreme Court is going to do that. That would be too much like privacy and liberty.
And by the way, the Obama administration is, as it has been in every case involving the Bill of Rights and the criminal justice system, on the wrong side of both of these cases.