Recent Florida and Tampa Area Drug Possession Cases Confirm Predicates Required For Drug Dog Sniff Evidence

Two recent Florida cases, one of them from the Tampa Bay area, have solidified the requirements that law enforcement and the State must prove in order for drug dog alerts to rise to probable cause to support a search under the Fourth Amendment of the U.S. Constitution.  On April 21, 2011 the Florida Supreme Court cleared up a conflict between several District Courts of Appeal by holding in Harris v. State, No. SC08-1871 (Fla. 2011) that the State must provide evidence of a drug dog’s and its’ handlers experience and  training as well as the canine’s field performance records in order to make a prima facie showing that the drug dog’s positive alert for narcotics was reliable enough to constitute probable cause under the Fourth Amendment.  And on August 3, 2011, the Second District Court of Appeal, which covers the Tampa, Clearwater, St. Petersburg, Sarasota and Lakeland areas, released their opinion in Wiggs v. State of Florida, Case No. 2D09-3545 (2DCA 2011) which not only reaffirmed the requirement for field performance records of a drug canine before a positive alert could count as probable cause to support a search, but also made it clear that the results of those field performance records would be subject to analysis by judges in determining whether the dog’s alert was reliable.

Drug Dog Sniff Evidence Often Taken For Granted By Courts

The use of drug dogs, or K-9′s, by law enforcement and the military to locate illegal substances by smell dates back at least to the 1960′s.  The legal reliability of drug dogs’ superior smell and ability to locate contraband was accepted by most courts almost as a given fact.  Perhaps guided by everyday knowledge of the dog’s superior seeking abilities and a long history of use as human and animal trackers, many courts simply accepted without discussion the reliability and trustworthiness of drug dog alerts while carefully analyzing narrower legal issues.  For example, the U. S. Supreme Court, in the landmark Fourth Amendment case of United States v. Place, 462 U.S. 696 (1983),  considered the limitations to investigatory detentions for the purpose of conducting a drug dog sniff test, all the while without questioning the ultimate value and reliability of such tests.  And more tellingly, in another landmark search and seizure case the U. S. Supreme Court actually declared that, “The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage. … A negative result would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on probable cause.”  Florida v. Royer, 460 U.S. 491, 505 (1983).  This pronouncement was made as part of the main opinion of the Court without any discussion of justification or cite to authority.  Because of this and other similar blind acceptances of the reliability and trustworthiness of drug detection dog alerts, other courts were similarly in blind acceptance of the value and reliability of canine search results for drugs while giving detailed analysis and discussion of underlying issues such as which circumstances would Constitutionally permit a dog sniff search.  See ILLINOIS v. CABALLES, 543 U.S. 405 (2005) (determined that drug dog sniff search of car on side of highway is reasonable if detention is not prolonged).

This seemingly unconditional acceptance of the reliability of drug dog sniff alerts for drug contraband led several courts to ignore the issue, or, if presented with evidence that drug dogs were not infallible, to adopt perfunctory requirements for qualifying their reliability.  In the Florida appellate case State v. Laveroni, 910 So.2d 333 (2005), the Fourth District Court of Appeal, which handles appeals for the Ft. Lauderdale / Broward County area, held that to show a prima facie case of reliability for purposes of establishing probable cause of an individual drug dog’s alert, the State merely had to show that the dog had been trained and certified.  That Court went on to explain that the mainstream rule in the United States did not require the government to make any further showing of reliability.  The Fourth D. C. A., in Laveroni, expressly disagreed with a case which had been decided by the Second D. C. A., which covers appeals from the Tampa Bay area.  That case, Matheson v. Florida, 870 So.2d 8 (2003), was the first in Florida to consider the problems inherent in drug dog alerts and to require that the State make a showing of the dog’s reliability and trust worthiness, not only by simply stating that the dog was trained and certified, but also by admitting records of the dog’s track record in the field since it’s training.  Unfortunately, the Fourth D. C. A., soon joined by the First D. C. A. (Tallahassee area) and the Fifth D. C. A. (Orlando / Daytona Beach area), decided that it should not be up to the State to lay a track record of reliability for drug dogs, but, rather, up to the accused to show that the dog had an untrustworthy record of alerting on drugs in the field.  This requirement, in effect, shifted the burden of proof to a defendant to show that a particular drug detection K-9 was unreliable.  The data which was necessary to make such a claim was often unavailable to the accused and thus, made it difficult if not impossible for someone who had been subjected to a search of their body or vehicle to contest the actual reliability of the drug dog alert which had provided legal justification for the search under the Fourth Amendment.

Drug Dog False Alerts – Handler Error and Too Sensitive Noses

Although it is an accepted fact that dogs possess an extremely sensitive sense of smell, which allows them to detect objects such as illegal drugs in minute quantities, there are several factors which can lead to an unreliable, false alert by a drug dog.  Under the legal requirements followed by the majority of courts until the past few years, a drug dog who gave a signal to its handler, called an alert, that drugs were present in a location would establish legal probable cause to permit a seizure and search of the location, typically a person’s clothing, bags or vehicle.  In effect, the dog became an essential source of information used to support legal probable cause for a search.  But, because dogs are incapable of testifying or being cross-examined in court, it was often left to speculation whether or not the scent alert had been accurate.  In fact, as discussed below, in many cases police drug dogs are quite capable of making an erroneous alert, which would lead to an unwarranted search of a citizen’s person or private belongings.

Because drug detection dogs are born with an extremely sensitive sense of smell, they do not have to be trained to detect drugs or other contraband.  The training that drug dogs go through, as explained by the testimony recited in the various cases cited, is more concerned with focusing the dogs’ attention on a particular substance on command and particularly on conditioning the dogs to react in a consistent, predictable manner in order to communicate to their handlers when they have located those substances.  However, being living animals, dogs are capable of becoming tired, annoyed or distracted and can on occasion give a false reaction, or alert, when no drugs are actually present.  The major types of problems which the courts in the recent cases found that can occur with drug dog alerts include:

1. Inattention or distraction leading to a false alert;
2. Inability due to inadequate training to distinguish between actual presence of drugs and a mere residual odor of drugs;
3. Reacting to cues given to them, either intentionally or unintentionally, by their handler – thus giving an alert in order to please their handler rather than because they have found drugs, and;
4. Miscommunication errors by the handler in recognizing or interpreting their dog’s behavior and mistaking it for an alert.

The courts considered that one of the most significant problems was that of false alerts due to an inadequately trained dog’s hypersensitive smell and ability to detect a residual odor from drugs that were no longer present.  As testified to by various handlers in these cases, a dog’s ability to smell is so sensitive that it often will detect the odor of drugs that have merely been transferred to an object by contact – such as someone who had handled drugs and then opened a car door.  This transfer of molecular odor can cause a drug dog to alert on the car door handle, thus giving rise to erroneous probable cause for a search of the entire car.  The significance of this type of error becomes apparent when we consider the potential for widespread false alerts leading to erroneous probable cause and unwarranted searches of citizens and their property.  Several studies have confirmed that something as widespread and common as U. S. currency can be the source of residual illegal drug scent.  According to a CNN article, 90% of the U.S. currency in circulation contains drug residue.  Although it may appear at first glance that the victims of these erroneous alerts and searches must have been guilty of drug possession anyway, since they ended up arrested for found drugs, what is less obvious are the much larger number of innocent citizens who are subjected to detention and searches of their private belongings, sometimes in view of the public, and in which nothing is found because the drug dog alert was false and based merely on some residual smells.  Those innocent people have little or no recourse under current laws for the anguish, inconvenience and public embarrassment they received.  Because they are not charged with any crime they never have their day in court.  Furthermore, laws dealing with violations of civil rights by law enforcement are notoriously difficult for citizens to win.

Now Required in Florida: Drug Dog Training, Field Performance Records and Handler’s Pedigree

Recognizing these problems inherent in determining the reliability of a drug dog alert, the Florida Supreme Court, in Harris, resolved the conflict between the various appellate courts in Florida by agreeing with the Second D. C. A.’s opinion in Matheson.  Acknowledging the various problems inherent in any drug dog sniff alert, the Supreme Court noted that a mere showing by the State that a particular drug dog had been trained and certified was meaningless, since there is no standard training or certification course for the dogs.  Thus, where some dogs are trained to a higher level to not alert upon the mere residual odors of drugs, others do not receive that level of training and will alert whenever they detect drug odor, regardless of the amount which may, or may not, be present.  The Florida Supreme Court therefore set the following requirements for the State to make a prima facie showing in any case in which the canine alert provided probable cause for a search or seizure for drugs in order to show that the police had a reasonable basis, under the totality of circumstances, to believe that the dog was reliable:

1. The dog was trained and certified to detect the contraband drug substance;
2. Explanation of the meaning of the training and certification;
3. Provide a record of the dog’s field performance since becoming certified, including a record of false alerts;
4. Provide evidence of the experience and training of the dog’s handler, and;
5. Any other objective evidence which would show the dog’s reliability.

Because the eventual determination of the dog’s reliability and whether the alert constituted probable cause is based upon a consideration of the totality of circumstances of the drug dog’s alert, this list of indicators of reliability are not necessarily meant to be an inviolable list of required items.  However, it is worth noting that the Court, in Harris, ordered that the drugs found in the search be thrown out because the State failed to provide an explanation of the dog’s training and capabilities regarding residual odor alerts and also failed to introduce field performance records.

Tampa Bay Area K-9 Field Performance Records Showed Less Than Probable Cause

On August 3, 2011 the Second D. C. A. issued its opinion in another drug dog sniff case in Wiggs.  In that case, out of Sarasota County involving another automobile search based upon the positive alert of a drug dog to an car during a stop for a traffic infraction, the State provided the records and explanations listed by the Supreme Court in Harris.  However, the field performance records and the handler’s testimony for the dog’s track record since becoming certified indicated that the dog, Zulu, had conducted seventeen vehicle sniffs in the field and alerted fourteen times since leaving training. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul’s alerts uncovered narcotics, the Second D. C. A. noted that Zuul’s field accuracy rate was only four out of fourteen, or approximately 29 percent. Although Zuul’s police handler maintained that those non-drug alerts were not false alerts and that he considered the dog to be 100% accurate, since Zuul was likely accurately detecting a residual odor of narcotics, the Court noted that the handler’s explanations were not specific enough to establish the existence of residual odors on which Zuul should have alerted.  As the Court pointed out, in five of the “false” alerts, the deputy merely testified that the vehicle had a “drug history” which would explain how residual odors got on it.  The Court was unsatisfied that the deputy did not explain what the “drug histories” entailed or why it ensured that drugs had once been present in those vehicles. Furthermore, the Court noted that there was no testimony regarding how long before the stop the drugs had been used or how minute of a residual odor Zuul could be expected to detect.  The Court explained that the absence of that information made it unable to evaluate under a totality of the circumstances the meaning of Zuul’s unverified alerts and how it led to evidence of Zuul’s reliability sufficient to provide the police with probable cause to search the vehicle.  Significantly, the Court noted that the low percentage of verified positive drug sniff alerts by the dog during his field performance was clearly insufficient to establish reliability by showing a  “fair probability” that drugs would be found in a vehicle following an alert.

A Burden Shifted To the State In Drug Dog Sniff Search & Seizure

After many years of almost blind acceptance of drug detection K-9′s alerts and permitting them to be used as the sole basis for probable cause for a search and seizure of persons and property, these recent cases have finally addressed with specificity the criteria by which courts can evaluate the reliability of a particular dog and whether the prior performance of the dog warrants a conclusion that the dog was reliable enough to provide the sole basis for probable cause for a Fourth Amendment search.  Importantly, these decisions make it clear that it is no longer the accused person’s burden to contest an implied assumption that dogs’ sense of smell is infallible.  Now it will be incumbent upon the police to maintain careful records of their drug detection dog’s performance and upon the State to obtain those records and provide them to the courts in a probable cause determination.

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