Tuesday, January 29, 2013
Leslie A. Shoebotham (Loyola University New Orleans College of Law) has posted Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs (Loyola Journal of Public Interest Law, 2013) on SSRN. Here is the abstract:
After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a “well-trained” detection dog - which most courts equated with “reliability” for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida’s assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records.The Article argues that clear incentives exist for law enforcement to use unreliable drug-detection dogs (or dogs with only marginal reliability) in the field: (1) financial self-interest, based on civil forfeiture statutes that authorize police to seize cash discovered during a physical search (which, pursuant to statute, may be placed into local, law-enforcement coffers to supplement law enforcement budgets) based on the money’s connection to a drug crime — which is often established by a positive canine alert to the cash, and (2) targeting of certain groups, such as racial or ethnic minorities, for police investigation. Additionally, the State of Florida’s argument that law enforcement is deterred from using unreliable drug-detection dogs because “inaccurate” dogs “put an officer in harm’s way” is a red herring. While traffic stops are dangerous encounters for law enforcement, those dangers are produced by the officer’s decision to stop a particular vehicle — presumably on the basis of probable cause for a traffic violation or other criminal wrongdoing — not a driver’s apprehension upon being stopped that his or her vehicle might eventually be subjected to a canine drug-detection sniff. Therefore, trial court consideration of detection-dog field performance records as part of a court’s canine-reliability determination is an essential firewall to preventing police use of marginal, or even unreliable, drug-detection dogs.