In Florida v. Harris [i] the United States Supreme Court applied the totality of circumstances approach to the determination that a law enforcement K-9 was reliable with respect to sniff-alerts for narcotics and rejected the Florida Supreme Court’s much stricter requirements for establishing this reliability.
On June 24, 2006, Officer Wheetley of the Liberty County Sheriff’s Office in Florida pulled over Clayton Harris for an expired license plate. Upon approaching Harris, Officer Wheetley noted that Harris was extremely nervous, that there was an open beer can in the cup holder, and was breathing rapidly. Wheetley asked for consent to search the Harris’s truck but Harris refused. At that point Officer Wheetley retrieved his trained K-9 Aldo and walked him around the outside of Harris’s vehicle conducting a free-air sniff. Aldo alerted on the driver’s door handle of the truck, leading Officer Wheetley to conclude that there was probable cause to search the vehicle.
The search of the vehicle did not turn up any of the drugs that Aldo was trained to detect but during the search, Wheetley discovered several ingredients used for making methamphetamine. After being Mirandized, Harris admitted that he regularly cooked methamphetamine at his home and could not go for more than a few days without it. The state charged Harris with possession of pseudoephedrine for use in manufacturing methamphetamine.
While Harris was out on bail from the first stop, Officer Wheetley observed Harris driving again and noted that his vehicle had a broken tail light. During this traffic stop, K-9 Aldo once again alerted on the handle of the driver’s door however the resulting search did not turn up anything. Thus, although Aldo alerted twice on Harris’s vehicle, on neither occasion were narcotics that Aldo was trained to detect discovered.
At a suppression hearing Officer Wheetley outlined both his training as a K-9 handler as well as well as Aldo’s training. Officer Wheetley with a different dog attended a 160 K-9 narcotics detection program in Dothan, Alabama, while Aldo went through a similar 120 hour training program in Florida. In 2004 Aldo received a certification from a private company that certified drug-detecting canines. After Aldo and Officer Wheetley were paired up, Aldo and Wheetley returned to Dothan, Alabama for a refresher training. Officer Wheetley trained and documented weekly four hour trainings which involved hiding drugs and having Aldo find the drugs. A monthly training log documenting these weekly trainings were introduced at the suppression hearing where Harris challenged Aldo’s reliability.
Harris’s attorney challenged Aldo’s reliability cross-examining Officer Wheetley on the fact that on two occasions, Aldo alerted on Harris’s truck and by focusing on the fact, acknowledged by Officer Wheetley that Aldo’s certification was expired by more than a year. It is noted that Florida does not require a certification. Another issue raised was the fact that Officer Wheetley documented Aldo’s field performance only when an arrest was made and did not document all stops to include alerts which did not result in finding narcotics. Officer Wheetley was able to explain the two alerts on the truck by articulating that the dog hit on the residual odor left by Harris opening the door after being in contact with methamphetamine.
The trial court concluded that the officer had sufficiently established Aldo’s reliability and therefore Aldo’s alert constituted probable cause to justify the search of the vehicle. The Florida Supreme Court overturned the trial court finding that a checklist of documentation was necessary to establish reliability: The Florida Supreme Court asserted:
“[T]he State must present . . . the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.” [cite omitted]
In overturning the Florida Supreme Court, the United States Supreme Court noted: “The test for probable cause is not reducible to ‘precise definition or quantification…’ All we have required is the kind of “fair probability” on which “reasonable and prudent [people,] not legal technicians, act.”
In determining whether probable cause has been established the Court asserted:
“In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” [cites omitted]
The Court pointed out that under the Florida Supreme Court’s decision, any K-9 sniff case would require that documentation of the dog’s prior hits and misses in the field would have to be presented. The Court noted the problem this rule would create for rookie dogs. The Court noted that no matter how much evidence existed as to the dog’s reliability, the failure to have documentation on hits and misses would undermine a probable cause determination. The Court determined that such a rule that took a single checkmark approach was exactly the opposite of the totality of circumstances approach used for Fourth Amendment analysis.
The Court was not impressed by suggestions that field performance provided the best evidence of a dog’s reliability noting that what may appear as a false hit can actually be a good hit on residual odor or drugs which are hidden so well or in such a small quantity that officers are unable to find them. The Court asserted that the better measure of a K-9’s reliability is those which occur in a controlled testing environment.
The Court concluded that Aldo’s training, to include his basic training of 120 hours; his refresher training of 40 hours as well as his weekly trainings sufficiently established his reliability and that the Harris had failed to rebut this reliability.
The Court concluded that Officer Wheetley had probable cause to search the vehicle based on Aldo’s alert.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Florida v. Harris, 568 U.S. ___; slip op. 11-817 (2013).