By David J. Spotts, Esq., Chief, Mechanicsburg, Pennsylvania, Police Department
wo recent U.S. Supreme Court decisions involved the use of trained dogs to sniff for drugs in an effort to develop probable cause to conduct a search. In the first case, Harris, the Court decided that the use of the K-9 was acceptable.1 In the second case, Jardines, the Court decided that use of the K-9 was not acceptable.2 Each case has an important lesson for police operations. Harris reinforces the U.S. Supreme Court’s “totality of circumstances” rule,3 and Jardines requires respecting home privacy.
The factual relevancy of Harris includes the following points:
- Harris was driving when he was stopped on a public street for an expired license plate.
- He was “visibly nervous,” shaking, and breathing rapidly and there was an open beer can in the cup holder.
- There was no other information of any nature indicating drugs were present.
- Harris refused to give consent for a search.
- After the consensual search request was refused, a drug dog was walked around the outside of Harris’s truck.
- The dog alerted on the driver’s side exterior door handle.
- Based on the dog’s alert, a search was conducted and materials used to produce methamphetamine, but no actual drugs the K-9 was trained to detect, were found in the vehicle.4
In Harris, the U.S. Supreme Court focused on the Florida Supreme Court’s determination that a specific “checklist” showing not only a drug dog’s training and use, but also a record of positive and negative field performance was required. The Florida Supreme Court stated that because the state could not show records of actual field performance of the dog in question, the K-9 sniff could never be used to establish probable cause for a search.5 The U.S. Supreme Court overturned and ruled that a strict formula for determining a K-9’s ability to sniff drugs is not required and a totality of the circumstances analysis is to be used.6
Harris is signaling that the courts may consider the manner and adequacy of a particular dog’s training and record of positive and negative field performance in the future. While the Harris defense did not raise these concerns at trial and thus lost the opportunity to do so on appeal, future defense attorneys are alerted to this tactic.7
The Court stated in Harris
The decision to treat 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 dogs 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.8
As a best practice, departments should keep detailed training records of each individual K-9. The records should show proficiency in finding drugs during training conditions. The controlled testing should include diverse search environments and blind searches in which the handler does not know the location of the drugs.
In addition, the K-9 officer must be prepared to explain a K-9 alert for residual odors where actual drugs were not found. It is even advisable to have training records for residual odor alerts. A training example would be to place drugs in a common location for a period of time, but remove them before the K-9 actually searches to see if the dog will alert.
Jardines, involves a privacy issue. The relevant facts in the case include the following:
- Police received an unverified tip that Jardines was growing marijuana in his home.
- Surveillance was conducted but yielded no results.
- Police with a leashed drug dog walked up to the house using the walkway to the front porch.
- The K-9 alerted at the base of the front door and departed approximately a minute after alerting.
- Based on the K-9 alert, a search warrant was obtained and marijuana was found growing inside the home.9
In Jardines, the decision hinged on where the K-9 was used. The use of a drug dog to sniff in a public area was not an issue, having been previously decided as a permissible police action.10
The Jardines Court ruled that because the K-9 was walked to the front porch to conduct a sniff search, police exceeded their authority and the search was improper.
The Jardines decision differentiates between a police officer and a trained K-9. The U.S. Supreme Court has ruled repeatedly that police officers, like private citizens, have a limited right to come onto private property using the common, socially accepted method of coming to the front door and knocking for any reason.11 And, when police officers conduct a “knock and talk” they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point in an attempt to gather evidence.12
The Court determined this was a search due to the location. When the government obtains information by physically intruding on houses, a search within the original meaning of the Fourth Amendment has occurred.13 The area immediately surrounding and associated with the home (the curtilage, which includes the porch) is considered part of the home itself for Fourth Amendment protection.14 Finally, the Court has long held that the highest expectation of privacy a person has is in his or her home.15
Against this backdrop, it becomes apparent that the dog was actually conducting a search. While police officers are free to approach a home in the manner another citizen would, even with the hope that perhaps they may acquire evidence, that type of contact is consensual. The person in the house does not have to talk with the police, admit the police inside, or even acknowledge their presence. While the person inside may not prefer the police to approach, this is not a search. However, if the police intentionally enter the curtilage of a home with the goal of conducting a search, that conduct is not permitted without a search warrant or an exigent circumstance.
The Court treated the use of a trained drug dog as a device—and the purpose as a search. This is consistent with an earlier decision of the U.S. Supreme Court where an infrared heat detection device was used from a public street to find unique heat signatures indicating a marijuana growing operation inside a house.16 Like Jardines, the Court ruled this was an impermissible search violating a reasonable expectation of privacy inside a home.
In essence, the use of a trained drug dog to sniff the exterior of a vehicle, item, or area comes down to the location of the search. If it is a public area, it is allowed.17 If it is not a public area, it would not be allowed absent exigent circumstances or a search warrant. “A sniff is up to snuff when it meets that test.”18♦
1Florida v. Harris, No. 11-817, US Supreme Court, decided Feb. 19, 2013.
2Florida v. Jardines, No. 11-564, US Supreme Court, decided March 26, 2013.
3Harris, No. 11-817; See, e.g., Maryland v. Pringle, 540 U.S. 366, 371; Illinois v. Gates, 462 U.S. 213, 232; Brinegar v. United States, 338 U.S. 160, 176 (1949).
4Harris, No. 11-817.
6Harris, No. 11-817, quoting Gates, 462 U.S. at 235 (1983).
8Harris, No. 11-817, citing U.S. Department of Army, Military Working Dog Program 30 (1993), 30, http://www.apd.army.mil/pdffiles/p190_12.pdf (accessed May 16, 2013).
9Jardines, No. 11-564.
10Illinois v. Caballes, 543 U.S. 405 (2005).
11 See, e.g., Kentucky v. King, 563 U.S. __ (2011).
12California v. Ciraolo, 476 U.S. 207 (1986).
13United States v. Jones, 565 U.S. __ (2012).
14Oliver v. United States, 466 U.S. 170 (1984).
15See, e.g., Ciraolo, 476 U.S. 207.
16Kyllo v. United States, 533 U.S. 27 (2001).
17Caballes, 543 U.S. 405.
18Harris, No. 11-817.
Please cite as:
David J. Spotts, "Has the Supreme Court Cleared the Air on K-9 Drug Sniffs? Two U.S. Supreme Court Cases on K-9 Drug Sniffs," Chief’s Counsel, The Police Chief 80 (July 2013): 10–11.