The Supreme Court heard oral arguments on Wednesday in two Florida cases involving the use of drug dogs. In the first case, Florida v. Jardines, the court will decide whether a drug dog's sniff outside the door of a home constitutes a "search" under the Fourth Amendment, which police would need to justify by first establishing probable cause. If the justices decide it doesn't, police could well begin using drug dogs to conduct mass "sniff sweeps" of apartment complexes, public housing, and other densely populated areas. In the second case, Florida v. Harris, the Court will consider a Florida Supreme Court decision that established some rules for judges to determine whether a particular drug dog should be relied upon as grounds for a search. Here, the justices could either uphold a state supreme court's desire to set some minimum proficiency standards, or rule that the police and prosecutors aren't obligated to keep track of a drug dog's performance record at all.
One theme we continue to see in cases like these is that the Supreme Court lineup is woefully lacking experience in the actual practice of criminal law. Of the nine justices, only Sonia Sotomayor and Samuel Alito have any such experience, both as prosecutors. The court hasn't had a justice with any real criminal defense experience since Thurgood Marshall retired in 1992. That's worth restating: There hasn't been a single voice on the Supreme Court with any real criminal defense experience in more than 20 years.
This is a remarkable and significant experience gap that isn't often discussed, but has a profound effect on the context in which the Court attempts to maintain the delicate balance between liberty and security. It's one thing to opine on these issues in law journals and lectures. It's quite another to have real knowledge of how the law plays out in the real world. The gap was on full display in this week's drug dog cases.
In the 1983 case U.S. v. Place the Court found that allowing a drug dog to sniff a piece of luggage at an airport was not a "search" under the Fourth Amendment. This meant that the police didn't need to first establish probable cause or obtain a warrant before subjecting a suitcase to a drug dog's nose. The Court extended that premise to automobiles in the 2005 case Illinois v. Caballes.
In both decisions, the majority of the justices assumed that the nose of a dog is infallible -- that an alert from a dog indicated the presence of whatever the dog was trained to find, and nothing else. An alert, then, was enough to establish probable cause for a more thorough search by law enforcement personnel.
That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs' success rate dropped to 27 percent.
This raises some interesting questions: Why are drug dogs more likely to submit an innocent motorist to the indignity of a thorough roadside search if the motorist happens to be Hispanic? Are drug dogs racist? Do they racially profile? Of course not. But their handlers probably do.
Consider another study conducted by Lisa Lit, a neurologist and former dog handler at the University of California-Davis. Lit brought 18 dog/handler teams currently operating in law enforcement agencies to an empty church. Each team conducted eight searches, each lasting about five minutes. If they were accurate, none of the dog/handler teams should have alerted in any of the searches. There were no drugs or explosives anywhere in the church.
But Lit had set some traps. The handlers were told that each search could have as many as three "target scents" -- drugs for the drug dog teams, or explosives for the explosive dog teams. The handlers were told that in some cases hot packages were indicated by a piece of red paper. These red paper packages were designed to trick the handlers. Lit also set a trap for the dogs: Some of the packages contained unwrapped sausages.
The results were striking. The dogs falsely alerted in 123 of the 144 total searches. Because some dogs falsely alerted more than once in the same search, the total number of false alerts was 225. The dogs correctly completed the search without an alert just 21 times, for a success rate of 14.5 percent.
But here's the more interesting part: The dogs were about twice as likely to falsely alert at the packages designed to trick their handlers than they were at the packages stuffed with sausages.
Why did so many fail? It wasn't the dogs' fault. A dog's nose more than lives up to the hype. It is the finely tuned instrument you've always heard it to be. The problem is that for thousands of years, we've bred into dogs a more lovable trait: a constant, tail-wagging, cheek-licking desire to please us.
We've primarily bred dogs for protection and for companionship. The dogs that exhibited those qualities would get bred again, strengthening the traits from generation to generation. Over time, the dogs that were best at those two tasks were those that could read our body language, and react accordingly. This is why my dog barks when there's a stranger at the door, but will curl up into a date's lap within a few minutes of having met her. She's picking up on my cues.
If a drug dog isn't trained to account for this, it's likely only confirming its handler's biases and suspicions. A couple months ago, a U.S. Customs dog trained in drug detection somehow managed to find a package containing counterfeit passports. While dogs can be trained to detect drugs or explosives, they can't tell a fake passport from the real thing -- no dog is that good. Rather, what likely happened is that her handler noticed something suspicious about the package. The dog picked up on her handler's body language, then alerted to please her handler.
Earlier this year, a HuffPost review of a police dog team with the Illinois state police found an instance in which the dog alerted to a trunk full of illegal (untaxed) cigarettes. Even the smartest of police dogs can't determine with a sniff whether a trunk-load of Marlboros was purchased in or out-of-state. (Not to mention that the dog wasn't trained to detect tobacco.) The dog likely was merely reflecting whatever suspicions its handler had about the driver.
The Fourth Amendment is supposed to protect us from searches of our persons, residences, and property based on no more than the hunches, suspicions, or biases of a police officer. But drug dogs have become little more than a way of converting those hunches into probable cause.
Which brings us back to yesterday's cases. In Jardines, most of the questioning from the justices was about whether a police officer bringing a drug dog to sniff the door to a residence constitutes trespassing. That's an interesting academic question. In terms of how the Court's ruling in this case will play out in the real world, and what it could mean to constitutional rights and civil liberties, the trespassing issue is far, far down on the list of concerns. Of far more concern ought to be that this detection method with proven deficiencies could be used to justify increasingly invasive searches.
In Harris, the questioning was even further removed from reality. Joseph Palmore from the Office of Solicitor General, for example, pointed out that dogs are already entrusted to keep bombs out of federal buildings and off of airplanes, and to find survivors after natural disasters. He added that dogs are also used to protect federal judges. (Nice touch.)
But there's an important distinction between bomb-sniffing dogs and drug dogs. The handlers of bomb-sniffing dogs are less likely to have preconceived notions about where a bomb may be hidden. Even more importantly, the handler has no incentive to cue -- consciously or subconsciously -- the dog to alert to confirm the handler's suspicions. In fact, when it comes to bombs, the handler's life may be in his dog's paws. He has every incentive to let the dog follow its instincts.
Representing the state of Florida, Gregory G. Garre then argued that police and prosecutors should not be required to turn over the field record of a dog/handler team in order to establish that the dog is accurate. He also rejected any hard criteria for what sorts of tests a dog should have to pass before a court would consider its alerts worthy of establishing probable cause. He even argued that police and prosecutors shouldn't be required to turn over the details of the tests and training a dog has passed.
This information could be critical. A dog that scores perfectly in a test in which the handler knows where the drugs are located, for example, tells us nothing about whether the dog is merely reading its handler's body language.
Since there are no national drug dog standards, most certification programs for drug dogs are given by police departments themselves. Garre argued that when a police department declares a dog to be "certified," and worthy of use in the field, the courts should simply take the department's word for it. The argument basically boiled down to, "just trust us."
When the attorney for the defendant pointed out the absurdity of that argument, he received an odd but revealing grilling from Justice Antonin Scalia.
"What are the incentives here? Why would a police department want to use an incompetent dog?" Scalia asked. "Is that any more likely than that a medical school would want to certify an incompetent doctor? What incentive is there for a police department?"
Scalia came back to the point later, this time with a heavy dollop of sarcasm. "So let's get dogs that, you know, smell drugs when there are no drugs. You really think that's what's going on here?" he asked. "It seems to me they have every incentive to train the dog well."
As any defense attorney will tell you, however, there are plenty of incentives for police departments to have improperly trained dogs. A drug dog that's prone to false alerts gives police more opportunities to search. That means more opportunities to find evidence of crimes not related to drugs -- untaxed cigarettes, for example, or counterfeit passports.
What's more, in many states, asset forfeiture laws allow police to seize property on little more than a drug dog's alert. If you're carrying a lot of cash and get pulled over, a police dog alerting to the presence of drugs in your car can be enough for the cop to take your cash, even if a subsequent search doesn't turn up any actual drugs. In many cases, a drug dog's alert to the presence of a drug on the cash itself has allowed police to seize the cash, even though nearly all U.S. currency contains traces of drugs. If a drug dog's alert allows police to seize property and cash that then goes back to the police department, that would certainly be a disincentive to hold your department's dogs to the highest possible standards.
Scalia might also ask what incentive Fort Bend County, Texas Deputy Sheriff Keith Pikett had to exaggerate his police dog's olfactory powers to produce several wrongful murder convictions. He could ask Florida police dog handler John Preston the same question.
There is in fact some proof that police departments want dogs that are less well-trained than they could be. The state of Florida and the U.S. government both attempted to explain that the poor field records of drug dogs like those in the Chicago Tribune survey were because the dogs had alerted to "remnant odors" of illicit drugs. There were likely drugs in the car at one time, the argument goes, or someone in the car who had recently used or handled drugs.
It's a convenient argument. "Remnant odors" can't be lab tested. But it doesn't explain why drug dogs still perform poorly in controlled, double-blind studies like the one done by Lisa Lit, where any possibility of remnant odor has been removed. But as one dog trainer told me for a previous HuffPost article, drug dogs can be trained to ignore remnant odors, and only alert to odors that are strong enough to indicate the presence of a measurable quantity of drugs. Police departments don't want dogs that have been that well-trained.
Finally, courts and academics tend to address questions of constitutional law in isolation. They of course look at precedent, but they rarely consider the cumulative effect a series of decisions can have on constitutional rights, especially when the various decisions address different questions of law. This, once again, is something that can be difficult to pick up on unless you have some practical experience in criminal law.
For instance, the Supreme Court has already determined that it is "reasonable" to use violent SWAT tactics to serve search warrants for low-level drug crimes. In a 2006 case in which the Court decided that evidence seized when police violate the "knock and announce" requirement before breaking in to a home to serve a drug warrant, Justice Anthony Kennedy wrote, "If a widespread pattern of [knock-and-announce] violations were shown... there would be reason for grave concern."
If Kennedy had talked to any criminal defense attorney, he'd have known there had been a pattern of abuse for decades.
Currently, there are about 150 SWAT raids per day in the United States. The vast majority of these raids are to serve drug warrants. In many jurisdictions, all drug search warrants are served by the SWAT team, usually with forced entry and violent, paramilitary-style tactics.
Currently, the police must first establish probable cause before getting a search warrant for these raids -- though many would argue that judges and prosecutors don't provide enough scrutiny before signing off on these warrants.
But imagine what will happen if the Court finds that a drug dog's alert is sufficient evidence for a search, and that a warrant is not necessary: We may start sending SWAT teams into homes based only on the results of taking drug dogs door to door.
In isolation, it might make sense to rule that it's reasonable for police to break down a door in the middle of the night for a marijuana search warrant. They need to get inside before the suspect can dispose of the evidence. It might make sense for police to use extraordinarily violent tactics in these raids, including putting guns to the heads of everyone inside, including children, because they need to secure the building quickly, and they need to ensure officer safety.
It might make sense to rule that a drug dog's sniff is not a search under the Fourth Amendment, because a sniff is relatively unintrusive. There may be nothing unreasonable about ruling that a drug dog's alert is enough to establish probable cause. After all, we all know that dogs have a finely honed sense of smell. And finally, it might make sense to rule that it is unreasonable to require prosecutors and police departments to provide a particular dog/handler team's field history, because doing so would place an undue burden on law enforcement agencies.
Taken in isolation, you could make a good argument that these are all perfectly reasonable rulings. But put them together. By this time next year, we could be facing this terrifying reality: Police could take a dog/handler team into an apartment complex or to a row of townhouses and have them sniff dozens, even hundreds of residences. That team may have a history in which less than half the dog's alerts lead to any actual recovery of narcotics. No matter. The police could then make note of all the doors at which the dog alerted, and all of those residences could look forward to middle-of-the-night visits from the local SWAT team.
A justice who has spent most of his career in lecture halls and high levels of government may not see how all of that fits together. But any decent criminal lawyer would.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more