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“SNIFF IS UP TO SNUFF:” ALDO THE DOG RECEIVES CONSTITUTIONAL BLESSING FROM SUPREME COURT

Mar 04 2013
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Proof that Dog has Performed Reliably in Controlled Settings Enough for Probable Cause
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We love dogs. Make no mistake about that. But we do not believe they have a place in our courtrooms other than to protect them. While we admire the German Shepard’s 225 million scent receptors compared to our own measly 5 million, this scent ability should not be a basis for overriding standards of reliability for criminal evidence which have been in place for nearly 250 years in this country. Both state and federal courts have been conflicted in recent years wrestling with the role “scent hounds” should play in our legal system. For example, Texas courts have kicked “scent lineup dogs” out of the state’s courtrooms while the U.S. Supreme Court recently, in a unanimous decision, held the Florida Supreme Court committed reversible error by requiring prosecutors to provide a log of a drug detection dog’s field performances to determine its reliability.

The case of Clayton Harris began in June 2006 when K-9 Officer William Wheetley of the Liberty County, Florida Sheriff’s Office, stopped Harris’ truck because it had an expired license plate. Wheetley was accompanied by his trusted German Shepard, Aldo, who had been trained to detect certain narcotics—cocaine, heroin, marijuana, ecstasy, and methamphetamine. Once the officer reached the driver’s side door of Harris’ vehicle, he noticed that Harris was “visibly nervous”—shaking, unable to sit still, and breathing rapidly. Wheetley also saw an “open can of beer” in the vehicle’s cup holder. The officer then asked Harris for consent to search the truck. Harris refused. Wheetley got Aldo out of the police unit and walked him around Harris’ truck for what is called a “free air sniff.” Aldo’s nose “alerted” at the driver’s side door handle prompting the canine to act with certain “distinctive behaviors” that signaled to the Officer Wheetley that it smelled drugs there.

The Supreme Court explained what happened next: “Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals—all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after properMirandawarnings that he routinely ‘cooked’ methamphetamine at his house and could not go ‘more than a few days without using” it. The State charged Harris with possessing pseudoephedrine for use in manufacturing methamphetamine.”

Defining probable cause is as hard as wrestling a greased pig. Thirty years ago in Texas v. Brown the Supreme Court held that probable cause to conduct search exists when “the facts available to [a police officer] would ‘warrant a [person] of reasonable caution in the belief’ that contraband or evidence of a crime is present.” That same year in Illinois v. Gates the Court added that “finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence … have no place in the [probable cause] decision;” that at the end of the day, all that is required is a “fair probability” on which a “reasonable and prudent” person would act. Twenty years later, still trying to grasp that greasy pig, the Court in Maryland v. Pringle observed that probable cause cannot be reduced to a “precise definition or quantification.” Whether or not a police officer has probable cause to search will be based on the “totality of circumstances” of each case.

With probable cause being what theGatescourt called a “fluid concept,” lower courts, particularly at the state level, were forced to define probable cause on their own given the facts and circumstances of each case. That is precisely what the Florida Supreme Court did when it heard Harris’ case on direct appeal. At the trial court level Harris had filed a motion to suppress the evidence found in his truck, alleging that Aldo’s alert did not provide adequate probable cause for Wheetley to conduct his search. The officer gave the following testimony at the hearing:

  • In 2004 he and a different dog had completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department.
  • That same year Aldo, with another handler, completed a 120-hour course given by the Apopka, Alabama Police Department.
  • That same year Aldo also received a “one-year certification” from a private company called Drug Beat which “specializes in testing and certifying K-9 dogs.”
  • Wheetley and Aldo joined forces in 2005, completing a 40-hour refresher course in Dothan. The pair also did “four hours of training exercises” each week to stay in “drug alert” shape.

At the suppression hearing before the trial court, prosecutors introduced “Monthly Canine Detection Training Logs” in support of Wheetley’s testimony. The logs revealed Aldo always found hidden drugs and performed his tests”satisfactorily.”

This testimony and evidence probably influenced Harris’ defense attorney’s decision not to pursue the “quality of Aldo’s or Wheetley’s training.” The attorney instead focused her challenge to probable cause on Aldo’s certification and field performances. This strategy was given a boost when Wheetley acknowledged on cross-examination that he “did not keep complete records of Aldo’s performance in traffic stops or other field work.” The trial court was not impressed. It denied Harris’ suppression motion.

On direct appeal, the Florida Supreme Court made it clear it was not impressed with either the trial court’s suppression denial or with Aldo’s training and certification.” “[W]hen a dog alerts,” the court explained, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” The state high court, therefore, held that in order for the State to establish a drug dog’s reliability, it had to produce substantially more evidence, such as:

“[T]he State must present … the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”

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