The Supreme Court in the past has tended to agree with the first view. Justice John Paul Stevens, now retired, wrote for the court in a 2005 case that a drug-sniffing dog reveals “no information other than the location of a substance that no individual has any right to possess.”
But the two cases on the docket present an aggressive challenge to the notion that a dog’s “alert” to the presence of drugs is enough to legally justify a search of someone’s home or vehicle.
Florida v. Jardines
asks whether it was constitutional for Miami-Dade County police, acting on a tip, to bring Franky to Joelis Jardines’s front door. Franky alerted to the smell of marijuana, the police used that to obtain a warrant, and Jardines was arrested on suspicion of turning his home into a “grow house.”
Florida v. Harris
asks a more basic question of whether judges should be skeptical of Fido’s qualifications. It builds on research that shows a high rate of false alerts and cases of manipulation by a dog’s handler.
Justice David H. Souter, also now retired, sounded the alarm about the reliability of police canines in his dissent in the 2005 case, writing that the “infallible dog . . . is a creation of legal fiction.”
The Florida Supreme Court went further last year in the Harris case when it threw out the evidence in a 2006 traffic stop in the Florida Panhandle that featured Aldo.
“Courts often accept the mythic dog with an almost superstitious faith,” Justice Barbara J. Pariente wrote. “The myth so completely has dominated the judicial psyche in those cases that the courts either assume the reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner.”
The Florida court said that judges should look at the “totality of circumstances,” including a dog’s training and certification records, field performance, and evidence of the handler’s training and experience.
Bill Heiser, founder of Southern Coast K9, is helping to raise the next generation of Aldos and Frankys on 12 acres of sandy soil in central Florida. He agrees that training and handling are key.
It takes about four months — training four or five times a day — to produce a dog for law enforcement. The dogs at Southern Coast work for the attention of their handlers — “Mom” or “Dad,” Heiser calls them — and receive it and their toy only when they have properly alerted to the scent of the drugs they are taught to detect.
He demonstrates how a fox-red Lab named Rowdy races through a room filled with distractions and sticks his nose in identical boxes containing a tennis ball, his toy of choice. But he stops and sits only at the box that also contains dope — Heiser uses real drugs, obtained from law enforcement — and waits for his trainer’s praise.