Friday, March 1, 2013
My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause
Florida v. Harris didn't turn out the way that I had hoped. As Lyle Denniston noted in his SCOTUSblog post, Opinion recap: trust the police dog,
Expressing considerable confidence that trained drug-sniffing dogs are reliable, and showing specific respect for one Florida police dog — Aldo — the Supreme Court on Tuesday made it quite easy for police officers to search a car or truck for drugs once a canine snooper has “alerted” to a smell on the vehicle. If the police offer evidence that a dog has been trained, or got a certificate from a training agency, that may well be enough to give police permission to turn an “alert” into a search of a vehicle, the Court said in a unanimous decision written by Justice Elena Kagan (Florida v. Harris, docket 11-817).
The Court specifically rejected a very detailed checklist of proof of a dog’s reliability that the Florida Supreme Court had drawn up before a court could treat a dog’s signaling of the presence of a drug odor as the equivalent of “probable cause” to search. In place of such a checklist, the Court set up a “reasonably prudent person” test — that is, a common-sense review of all of the facts about a dog’s alert, to see if such a prudent person would think that a search would turn up evidence of illegal drugs. “A sniff is up to snuff when it meets that test,” Kagan cleverly summed up.
So, yes, the Supreme Court essentially did tell us to "trust the police dog." My response: Don't trust the diamond dogs. That's the argument of my essay, Beware of the Diamond Dogs: Why a 'Credentials Alone' Conception of Probable Cause Violates the Compulsory Process Clause, recently published by the Loyola University New Orleans Journal of Public Interest Law. You can now download the essay by clicking here.