Justice Kagan’s opinion in Florida v. Harris, 133 S. Ct. 1050 (2013) held: “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” “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. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.”
Therefore, controlled testing environments are an indication of competence. The opinion does not foreclose a defendant’s ability to challenge the reliability of a drug dog or of a particular alert. Among the many issues unaddressed by the Harris opinion are the rate of false positive alerts and the overall proficiency of a particular dog in performing searches in the field, as a less proficient dog would lead to an increased number of false positives.
It is important the Court not anthropomorphize a dog’s behavior. Detector dogs are not trained, but conditioned to perform tasks in exchange for a reward. Factors such as weather, handler cues, and the existence of trace amounts of a substance may arise in other than controlled settings. An alert is no indication of the amount or nature of the substance detected; only that something has attracted the dog’s attention. There is no ability for the handler to determine if there had been contraband present or if the dog made an error. If this occurs outside of the controlled setting of the certification process, the information must be presented to the defendant and would show an undisclosed error which would affect reliability.
The Court must first consider whether a defendant is the subject of a lawful stop. Unlawful detentions and seizures should be treated as such, and not be later cured by a dog alert. The Fourth Amendment applies to the issuance of warrants, not warrantless searches. Probable cause is required for warrantless searches as well. In determining reliability the Court should consider the item found, as well as the substances the dog is trained to detect. A false positive which leads to detection of a substance the dog is not trained to detect should not lead to determination of probable cause. This would be an illogical extension of the plain view doctrine.
Prior to Harris, the 6th, 7th, 9th, and 10th Circuits found that refusing to grant the defendant discovery of information to impeach the credibility of the dog, or its handler, violates Brady. The Courts have recognized there may be differences between performance in controlled conditions and in the field, and those records should be provided through discovery. In Matherson v. State, 880 So.2d 1212 (FL 2004) the Court found the “most telling indicator of what the dog’s behavior means is the dog’s past performance in the field”.
Before an officer makes an investigatory stop, that officer must have reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U. S. 1 (1968). An informant’s tip may provide the necessary reasonable suspicion, but must exhibit sufficient indicia of reliability and is relevant in determining whether reasonable suspicion existed. AIabama v. White, 496 U. S. 325 (1990). “If a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion that would be requested if the tip were more reliable.” Id. at 330. In determining reasonable suspicion, a ‘totality of the circumstances’ approach has been adopted and an informant’s “veracity,” “reliability,” and “basis of knowledge” is highly relevant. Id. at 328.
Furthermore, the information must be sufficiently corroborated by police. Id. at 330. Officers do not need “to verify every detail provided by an anonymous informant [but] ‘significant aspects of the informer’s information must be independently corroborated.'” Gregory v. Commonwealth, 22 Va. App. 100 at 106 (I 996)(quoting Bulatko v. Commonwealth, 16 Va. App. 135 at 137 (1993)). An officer is justified in relying upon an anonymous tipster’s information to conduct a brief detention of an individual if the anonymous information is “sufficiently corroborated” to provide it some indicia of reliability. Alabama v. White, 496 U.S. at 331. See Florida v. J.L., 529 U.S. 266 (2000).
An individual is seized when he is either physically restrained or has submitted to a show of authority. California v. Hodari D., 499 U.S. 621 (1991). A seizure occurs if a reasonable person would have believed that he or she was not free to leave. U.S. v. Mendenhall, 446 U.S. 544 (1980). If police officers state to a citizen that they are suspected of criminal activity based on information recently received, the police “convey a message that compliance with their request is required,” Florida v. Bostik, 501 U.S. 429 at 435 (1991), and “that failure to cooperate would lead only to formal detention.” U.S. v. Berry, 670 F.2d 583 at 597 (C.A 5 (Ga), (1982).
Arizona v. Gant, 556 U. S. 332 (2009), requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee or a specific need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicle search after the vehicle’s recent occupants have been removed. Justice Scalia’s concurrence held “we should simply abandon the Belton-Thornton charade of officer safety … I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the of the crime for which the arrest was made or of another crime that the officer has probable cause to believe occurred”
The issuance of a summons for a minor traffic offense concludes the detention necessary to investigate tile driver’s license status. Law enforcement officers should not be able to suggest a defendant is free to leave when his identification is withheld and a further look inside the vehicle or sniff has been requested.
When the police hold an individual beyond the amount of time necessary to effectuate the purpose of the stop, the seizure becomes an arrest and must be supported by probably cause. U.S. v. Briginoni– Ponce, 422 U. S. 873, 880 – 1 (1975). Probable cause must be determined in light of what is present, not what might be sniffed, and a long wait for a detector dog would seem to require probable cause independent of the results of the dog sniff.
“We believe the dog sniff is more coercive than police questioning of a citizen in a place where he or she may easily leave the police presence because a person who wants to end the canine sniff has to either: 1. Remove their personal property from the presence of the dog; or 2. Has to convince the police to stop their actions. Enduring this type of encounter is much more difficult than refusing to answer police questions and being able to walk away. In the later situation the risk of coercive police is far reduced because the citizen has more control over ending the encounter.” U.S. v. Buchanan, 72 F. 3d, 217 at 1226 (C.A. 6 (Ohio), 1995).
The evidence was seized as a result of the canine’s alert to defendant’s bag, as it was carried by police from one side of the bus to the other. “The propriety of the dog alert, and the search it led to turn, however, on the lawfulness of the officer’s seizure” of the bag, “because the evidence fails to show that the dog would have alerted to the bag had it not been carried by the officer to the dog’s location.” Jean-Laurent v. Commonwealth, 538 S.E.2d, 316 at 319 (2000).
The Virginia Department of Criminal Justice Services does not have any program in place to accredit or establish a minimum standard for drug detection dogs or handlers. Hanover County does not have a drug detection dog and calls upon nearby localities when such services are required. Chesterfield and Henrico Counties rely upon the Virginia Police Work Dog Association to certify detector dogs. The certification materials for the Virginia Police Work Dog Association and National Narcotics Detector Dog Association are included as appendix A and B.
Please note that the Work Dog Association requires a 91.6% success rate in order to meet its standards. However, neither the Work Dog Group nor the National Narcotics Detector Dog Association applies an approach which includes false positives outside the certification process in determining whether the dog and/or handler have met the appropriate standard.
Presumably, participants in the certification process are comfortable around dogs and don’t mind being sniffed. This should not be a substitute for what happens outside the friendly confines of the testing area. Many factors could contribute to a person’s reaction while being detained and sniffed. A sniffed person’s behavior may be as a result of cynophobia. The behavior occurring as a result of a phobia could be misinterpreted by a dog handler or law enforcement and subject a person to additional unlawful seizure and search (see app. C)
In his article, Detector Dogs and Probable Cause, George Mason Law Review, Vol. 14:1 (2006) p. 13 -16, Richard E. Myer, II, provides a Bayesian Analysis of probable cause determinations based on a dog sniff, which includes a discussion of the false positive results (see app. D).
Handler bias and belief can affect detection dog results. The Work Dog Association and National Narcotics Detector Dog Association do not address the ‘Clever Hans’ effect. This is more fully discussed in an article by List Lit, et al, published in the Animal Cognition Journal (1/12/2011) (see app. E).
“Evidence which is ‘directly linked to the primary taint of the illegal seizure’ is not admissible against the person illegally seized.” Watson v. Commonwealth, 19 Va. App. 659 at 665 (1995) (quoting Deer v. Commonwealth, 17 Va. App. 730 at 737 (1994)). Evidence discovered following an illegal detention that “flowed one from the other with no discernible break in the chain of causation” is not admissible. Deer v. Commonwealth, 17 Va. App. 730 at 737 (1994).
If no information is provided by an anonymous source about the specific activities of the individual and no information was provided concerning the future movements or behavior of the individual, the unknown informant’s veracity, reliability, and basis of knowledge are not corroborated or tested by the officers. A minimal amount of effort should be required before subjecting a citizen to a seizure or a dog sniff.
Included in the appendix is a list of several topics that should be investigated prior to trial by interviewing the handler and a sample motion (see app. F and G).
Please note I copied liberally from the opinions in Caballes, Matherson, Harris, as well as the George Mason Law Review article are the main sources of information relied upon. The website http://ncforensics.wordpress.com is an excellent source of information.
Thanks to Sarah R. Olson, Seth Shelley, Christina Sadowski, and Janet Lee for their assistance.
- Virginia Police Work Dog Association
- Narcotic Detector Dog Association
- George Mason Law Review, Vol. 14: 1 (2006) p. 13 – 16
- Handler beliefs affect scent detection dog outcomes
- Topics of discussion with dog handler
- Sample motion
- Virginia State Police Canine Procedure and Standards
- City of Richmond Police Department Response