Dog sniff ruling doesn't smell so bad after all

This week the U.S. Supreme Court handed down a controversial decision in the much-anticipated dog-sniffing case, Florida v. Harris, 2013 DJDAR 2229 (2013). Associate Justice Elena Kagan, authoring a unanimous opinion, summed up the holding with a quote that will be cited for years to come: "The question - similar to every inquiry into probable cause - is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test."

The case considered whether Florida's evidentiary checklist used in assessing drug-detection reliability passed constitutional muster. The state of Florida appealed a decision by the Florida Supreme Court where that court ruled in favor of a defendant who had suffered an adverse ruling on a motion to suppress evidence at a truck stop.

An officer pulled over defendant-respondent Harris for a traffic stop. After Harris refused to consent to a search, the officer, assisted by his drug-detecting dog Aldo, conducted a sniff test. Aldo alerted to the driver's side door handle. A search of the door handle revealed no drugs the dog was trained to detect, but did reveal drugs that are precursors to the manufacture of methamphetamine.

While out on bail, Harris encountered the same officer and dog. Aldo again alerted on the same handle, though police found no drugs or precursors.

According to Justice Kagan, "On cross-examination, Harris's attorney chose not to contest the quality of Aldo's or [officer] Wheetley's training. She focused instead on Aldo's certification and his performance in the field, particularly the two stops of Harris's truck."

The Harris facts are easily distinguishable and worse than facts most of us defense lawyers have ever seen

One fact defense lawyers obviously do not like in this case is that the officer admitted that he "did not keep complete records of Aldo's performance in traffic stops or other field work; instead, he maintained records only of alerts resulting in arrests." However, the "bad facts" of Harris - that the defendant exhibited symptoms of meth use during his first arrest and admitted to routinely cooking methamphetamine - are the key to why this case can easily be distinguished from other cases involving drug-detecting dogs that as practitioners we come across in day-to-day practice.

During his first arrest, Harris not only exhibited symptoms of a central nervous system stimulant, he admitted to cooking meth and being around it on a frequent and continual basis.

As Justice Kagan wrote for the court, "Wheetley defended Aldo's two alerts to Harris's seemingly narcotics-free truck; According to Wheetley, Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that 'residual odor.'" (Citation omitted). Officer Wheetley also testified that not only was the defendant "'visibly nervous,' unable to sit still, shaking, and breathing rapidly" during the first arrest, but that the defendant, after being Mirandized, said he manufactured methamphetamine and was around it routinely, and "could not go 'more than a few days without using.'" (Citation omitted).

These observations and admissions were consistent with the officer's rebuttal to the Harris defense attorney's misguided inference that the failure of the dog to find drugs meant the dog was not reliable. The officer said that during his second encounter with Harris, the dog's alert meant most likely that the defendant had meth on his hands and got that residue on the door handle - a very reasonable inference considering that precursors to meth were found there previously by the dog, and given the defendant's prior admissions.

Law professors say that bad facts make bad law. But those of us who practice law know that bad facts in a case that prosecutors seek to use as precedent may unravel the prosecutor's arguments and really unearth the relevance of what at first glance looks like conservative bad law. The Harris ruling epitomizes these nuances.

Harris is a roadmap for defense lawyers as to areas subject to attack regarding dog alerts

Justice Kagan points out that though the defense briefs to the Supreme Court "raise questions" about the adequacy of Aldo the dog's training, those issues are waived because the trial defense lawyer failed to preserve them in the trial court. The court does feel it relevant, however, to give examples of the waived questions raised in the briefs, perhaps signaling to the defense bar.

Justice Kagan notes that the defense briefs questioned "whether the programs simulated sufficiently diverse environments and whether they used enough blind testing (in which the handler does not know the location of drugs and so cannot cue the dog)." She also says that the defense briefs question Aldo's performance in controlled settings.

The court is signaling that the defense may challenge a dog sniff based on cross examination and/or expert testimony regarding the training of the dog, but that what was presented in Harris, without cross examination or evidence to the contrary, was sufficient for a finding of probable cause.

According to Justice Kagan, in Harris the state presented "substantial evidence of Aldo's training and his proficiency in finding drugs." She noted that two years before the arrests in this case, Aldo not only completed a 120-hour program in narcotics detection, but was also was certified by an independent company.

The court points out that a defendant should be able to "contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. ... And even assuming the dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause - if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions."

The court states, "If the state has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause."

In California, what this means for defense lawyers is that we need to start doing a lot more discovery (both through issuing subpoenas duces tecum to the police agency, and even the dog training facilities, for records relating to the training of the dog). Discovery relating to the dog would not fall under Section 1054.1 of the Penal Code, which is the section requiring district attorneys to disclose items that they may have in their possession relating to the charged defendant or case. However, these materials are outside what the district attorney would have and thus are subject to the defendant's subpoena powers.

Also, in California, we, the defense bar, have at our disposal state court decisions that say that a medical marijuana recommendation and the patient status of a defendant is relevant to a probable cause determination. That means that if a dog is trained to detect marijuana as well as other drugs, the fact that the dog alerts may not justify a search where the officer is put on notice that the defendant has a medical marijuana recommendation, because a dog alert to something that may be a personal-use amount of medical marijuana, combined with the presence of a recommendation, may not be sufficient for a search.

In the 2009 case Butte County v. Superior Court, 175 Cal. App. 3d 729, the 3rd District Court of Appeal indicated that civil damages are available where an officer cut down marijuana plants despite being on notice that the activities surrounding the plants were protected by California Health and Safety Code Section 11362.775. Quoting the seminal California Supreme Court case on medical marijuana, People v. Mower, 28 Cal. 4th 457 (2002), the Butte court wrote, "As the Supreme Court has noted, in the context of medical marijuana: 'To be sure, law enforcement officers must have probable cause before they lawfully may arrest a person for any crime. [Citations.] Probable cause depends on all of the surrounding facts [citation], including those that reveal a person's status as a qualified patient or primary caregiver under [the Act].'" (Emphasis added).

What may at first glance seem like a stake in the heart by Justice Kagan to us in the defense bar ultimately may provide us ideas for really challenging dog searches, and in reality changes nothing in California law. That's why it's always good to read a case for yourself.