Florida v. Harris, SC11-817: United States Supreme Court Reverses Florida Supreme Court in Case Involving Drug Detection Dog at Traffic Stop
For those Florida criminal defense attorneys who handle a lot of drug cases, here is an opinion worth reading. In a relatively short (14 page) opinion, the United States Supreme Court unanimously reversed the Florida Supreme Court in Florida v. Harris, No. SC11-817. Generally, the overall holding is favorable to the State because the Court held that the State is NOT required to “present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability,” Harris, slip op., pg. 1, as the Florida Supreme Court had required. However, in so holding, the US Supreme Court really slapped down the Florida Supreme Court. For some reason, I really love to see the Florida Supreme Court get reversed.
In its analysis, the Court reasoned that the hypertechnical requirements of the Florida Supreme Court opinion were completely contrary to the common-sense approach to a determination of probable cause, which should be based on the totality of the circumstances. Harris, slip op., pg. 4. The Court stated,
. . . The Florida Supreme Court flouted this established approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off. Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis. It is, indeed, the very thing we criticized in [Illinois v.] Gates when we overhauled our method for assessing the trustworthiness of an informant’s tip. A gap as to any one matter, we explained, should not sink the State’s case; rather, that“deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability.” Id., at 233. So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person. Field data thus may markedly overstate a dog’s real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.
Harris, slip op. pgs. 5-8.
Now, I admit that the above language is pretty helpful to the State. However, the Court continued, provided some helpful ammunition to the criminal defense and criminal appeals lawyers out there, too. The Court noted that a defendant should have the opportunity to “challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Harris, slip op., pg. 8. For example, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.” Id. In addition, a defendant may “examine how the dog (or handler) performed in the assessments made in those settings.” Id. After all, “evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant.” Id. Finally, the Court noted that even if a dog is presumed 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.” Id. at pg. 9.
Unfortunately for Harris, his trial attorney failed to challenge any aspect of the drug dog’s training in the trial court. See Id. at pg. 10. As a result, the Court refused to consider his arguments raised in that regard for the first time on appeal. See Id.
Apart from the discussion of probable cause, this opinion also has good lesson for all the criminal defense attorneys out there: don’t forget to object and/or challenge the State’s evidence at every opportunity. Even if you don’t know how useful or successful your challenges will be, once a case goes up on appeal, anything, and everything, may be fair game. Failing to challenge evidence at the trial level (or failing to object) often precludes the right to appellate review, as noted by the Court in Harris.