In today’s second Supreme Court case involving
police dogs,
Florida v. Harris, the justices seemed much more inclined
during oral arguments to side with the government. Unlike in

Florida v. Jardines, where Antonin Scalia joined some of
the more left-leaning justices in
questioning the constitutionality of bringing a drug-detecting
canine to a suspect’s doorstep without a warrant, even the liberals
were wary of establishing rules for
assessing the reliability of a dog’s signal as grounds for a
search, while Scalia was transparently hostile to the idea.

The
argument offered by Gregory Garre, the lawyer representing
Florida in this case as well as Jardines, was pretty
straightforward: Trust us. “The handlers themselves are going
to be in the best position to know the dogs and evaluate their
reliability,” he said, “and they have a strong incentive to ensure
the dogs are reliable.” So if a cop trying to justify a search
vouches for the reliability of a dog whose alert supposedly
justifies that search, why should anyone question him?

Garre argued that “the most important thing” in judging a dog’s
reliability “is successful completion of proficiency testing.” How
does a judge know a dog has successfully completed proficiency
testing? Because the police say so. When training is done by
“actual police departments,” Garre said, “this Court ordinarily
would presume regularity.” And what constitutes “regularity,”
especially in a state that, like Florida, has no uniform
standards for training dogs or their handlers? “We would ask
whether or not the dog successfully completed training by a bona
fide organization,” Garre said. “We don’t think it’s an appropriate
role for the Court to delve into the contours of the
training….You would have to accept it…on its face.”

And why wouldn’t you? After all, Scalia observed, “if the
reasonableness of a search depended upon some evidence given by a
medical doctor, the court would not go back and examine how well
that doctor was trained at Harvard Medical School.” Then again,
Harvard Medical School, unlike a police department’s dog training
program, is accredited, based on uniform national criteria, by the
American Association of Medical Colleges, and its graduates must
satisfy objective, transparent tests to be licensed and certified
in their specialties. Plus, unlike police dogs, doctors can talk,
which means they can testify and be cross-examined regarding their
qualifications and the reasons for their conclusions. 

Scalia seemed genuinely flabbergasted not only by the idea that
a dog might be inadequately trained but also by the suggestion that
police might exaggerate a dog’s reliability. “Why would a police
department want to use an incompetent dog?” he asked Glen Gifford,
the assistant public defender urging him to agree with the Florida
Supreme Court that merely asserting a dog has been trained is not
enough to establish its reliability. “What incentive is there for a
police department?” Gifford patiently explained that “the incentive
is to acquire probable cause to search when it wouldn’t otherwise
be available.” Scalia deemed that suggestion patently absurd:

Officers just like to search. They don’t particularly want to
search where they’re likely to find something. They just like to
search. So let’s get dogs that, you know, smell drugs when there
are no drugs. You really think that that’s what’s going on
here?…They like to search where they’re likely to find something,
and that only exists when the dog is well trained.

Bear with me, Your Honor, and imagine a scenario along these
lines: A cop pulls over a pickup truck, ostensibly because of an
expired tag but maybe because something about the driver strikes
him as suspicious. The guy seems nervous, squirrely, and restless,
and the cop thinks: I bet he’s a tweaker. The cop, who just happens
to have a drug-sniffing German shepherd with him while keeping his
eye out for expired vehicle registrations, walks the dog—let’s call
him Aldo—around the truck. Although no one else (certainly not
Aldo) can testify to this, the cop claims the dog alerted to the
driver’s side door handle by getting excited and sitting down. The
cop searches the truck but does not find any substance that Aldo is
trained to detect. He does find hundreds of pseudoepedrine pills,
along with other ingredients for making methamphetamine. About two
months later—weird coincidence!—the same cop stops the same guy in
the same pickup truck, this time ostensibly because of a busted
brake light. Aldo supposedly alerts again at the same spot, but
again there are no illegal drugs in the truck. The cop suggests
that both unverified alerts were due to meth residue from the
driver’s hand, which might be true. Alternatively, the dog may have
been distracted by other smells, or he may have alerted in response
to subconscious signals from a handler keen to confirm his
suspicions. Maybe the cop, due to said suspicions, misinterpreted
the dog’s behavior. There are other possible explanations as
well.

This scenario may sound familiar, Your Honor, because it is
exactly what happened in the case you are currently considering.Can
you discern any possible incentives here for misrepresenting a
dog’s reliability, or even for valuing a dog who will alert on cue,
subconscious or not? I can, but I am not as mesmerized as you are
by the “new
professionalism” of America’s police officers.

One justice, Sonia Sotomayor, did express concerns about the
high error rates of some police dogs and how they might affect
probable cause for searches of not just vehicles but also homes
(the issue in Jardines). “Who determines when a dog’s
reliability in alerting has reached a critical failure number?” she
asked. “I’m deeply troubled by a dog that [accurately] alerts only
12 percent of the time….That seems like less than probability.”
Garre refused to be pinned down on that question, saying “this
Court has rejected a numerical conception of probable cause.”
Gifford made the same observation but added that “in the lower
courts, once you get below 50 percent, probable cause is much less
likely to be found.” That seems about right to me. Contrary to what
Garre claimed, the Florida Supreme Court is not demanding that
drug-detecting dogs be “virtually infallible.” But is it too much
to ask that they be right at least half the time?

The full transcript of the oral arguments is
here.