Wednesday, February 20, 2013
at first blush it seems that the Court has said there is no particular test and then created a particular test: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent and successful” completion of a training program creates a presumption of probable cause that then can be rebutted by defense counsel. Granted, the Court does say that certification or training can create a presumption of probable cause, rather than that it does. But I’m not sure there is a difference. The state has the burden of proving probable cause. If a fact “can” create a rebuttable presumption that the burden is satisfied, does that mean that judges have the discretion to say that the fact creates a presumption or free to say it doesn’t create that presumption? Or does it simply mean that the fact does create a presumption that the defense can then rebut?
the controlled conditions in which dogs are evaluated don’t typically match field conditions very well: the handlers there often know where on the test course drugs are located—and even when they don’t, have no incentive to want the dog to alert at any particular location, which removes those subconscious signals from the equation. Bizarrely, the Court nevertheless held that the “better measure of a dog’s reliability… comes away from the field, in controlled testing environments.” Worse, the opinion also provides police deparments with an added perverse incentive to avoid collecting data on the real-world reliability of their sniffers: while a dog’s alert provides prima facie probable cause for a search, the Court held, defendants must be given an opportunity to challenge the reliability of a particular search in court—with field performance as one potential grounds for challenge. But, of course, if that’s the case, keeping records of false positives can only serve to give defendants grounds to invalidate a search that would otherwise be presumed valid.