Well, Florida attorneys handling criminal defense and criminal appeals should know that there was a big opinion issued by the United States Supreme Court today. In Maryland v. King, No. 12-207, the Court held that police may now take a DNA swab as part of the booking procedure of an arrest supported by probable cause. I haven’t had a chance to read the 50-page opinion yet, but I didn’t want to delay things any further. Here’s a link to one of the news reports, and another link to a great summary on SCOTUSblog.
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.
Florida’s Fourth District Court of Appeal has published an opinion on an interesting and timely topic-whether police need probable cause to obtain prospective cell site information. In Tracey v. State, No. 4D09-3565, the Court held that the police did not violate the Fourth Amendment when they used “real time” or prospective cell site information to track a suspect on public roads.
By way of background, footnotes 1 and 2 of the opinion discuss two tools which are related to cell phone use, and which allow law enforcement officers to track suspects: pen registers and trap and trace devices. Under Florida law, a pen register is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(20) (2009). A “trap and trace device” is defined as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(21) (2009).
Key to the Fourth District’s analysis was the fact that the police were tracking Tracey on public roads. The Fourth relied on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705, 707 (1984), where the United States Supreme Court upheld a law enforcement officer’s installation of a beeper to track a suspect’s car on public roads because the police officer did not obtain information which could not have been obtained
through visual surveillance.
Federal courts are presented with this issue much more often than the State courts. I know from my time as a Law Clerk in the United States District Court for the Southern District of Florida that federal prosecutors routinely apply to the Court for pen registers and trap and trace devices as part of their criminal investigations. While Judges in the Southern District require the prosecutors to show probable cause before they will allow a pen register or trap and trace to issue, it is important to note that the Federal courts do not approach the issue uniformly.
Some Federal courts have held that prospective or “real time” cell site information can only be obtained upon a showing of probable cause, contrary to the Fourth District’s holding in Tracey. See In re APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY, 396 F. Supp. 2d 747 (S.D. Tex. 2005); In re APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE, 396 F. Supp. 2d 294 (E.D.N.Y. 2005). Federal courts may also differ on the issue of whether a showing of probable cause is required to obtain historical cell site data. See In re Application of the UNITED STATES of America FOR HISTORICAL CELL SITE DATA, 747 F. Supp. 2d 827 (S.D. Tex. 2010); In re APPLICATION OF the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO the GOVERNMENT, 620 F. 3d 304 (3rd Cir. 2010).
A note of caution: this listing of cases is only the tip of the iceberg. Florida criminal defense attorneys will have to undertake a thorough review of the facts of their cases and the relevant caselaw to determine how to proceed if they are presented with an issue regarding their client’s cell phone data. While the Fourth District’s opinion in Tracey gives law enforcement the upper hand in some respects, Florida criminal defense attorneys must keep in mind that Florida courts are bound to follow Fourth Amendment analysis as enunciated by the United States Supreme Court. See Rolling v. State, 695 So. 2d 278, 297 n. 10 (Fla. 1997); Fla. Const. art. I, sec. 12. Given the different approaches being taken by the Federal courts, perhaps the United States Supreme Court will have the opportunity to address the issue sooner rather than later. And if the Court does find that probable cause is required to obtain these types of cell phone information, that would mean a victory for the defense!