Want us to violate your Fourth Amendment rights? Heads or tails?
The United States Court of Appeals for the Seventh Circuit, handed down an important
ruling last week. The case was
U.S. v. Bentley where Larry Bentley argued that the drug dog Lex, used to alert an officer and allow for a drug search of his vehicle (which turned up 15 kilograms of cocaine), was poorly trained and had an almost equal chance of alerting authorities whether there were drugs present or not present.
Even if we were to ignore Harris and focus on Lex’s 59.5% field-accuracy rate, though, that rate is good enough to support a finding of his reliability and thus to allow his alert to constitute a significant piece of evidence supporting the ultimate conclusion of probable cause. In the past, we have concluded that a 62% success rate in the field is enough to prevail on a preponderance of evidence, and we have gone on to note that “’probable cause’ is something less than a preponderance.” United States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (citation omitted). Other circuits have accepted field detection rates less than Lex’s 59.5%. See, e.g., United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014) (57%); United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014) (43%). This should not become a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence. We will look at all the circumstances in each case, as we must.
Bentley’s second argument that Lex is an unreliable source of probable cause hinges on the allegedly poor quality of the school that trained him and his handler. This argument cannot get off the ground. Bentley concedes that there are no national standards by which we can judge the training Lex received at CTI. Moreover, there is evidence in the record that CTI modeled its certification standards after the leading national associations in the field.
[emphasis mine]
The "Harris" being to referred to in the first paragraph of the above quote is the Supreme Court's 2013 decision in Florida v. Harris:
Justice Elena Kagan, writing for a unanimous court, reversed the Florida Supreme Court. The U.S. Supreme Court rejected the lower court’s rigid requirement that police officers show evidence of a dog’s reliability in the field to prove probable cause. Probable cause is a flexible common sense test that takes the totality of the circumstances into account. A probable cause hearing for a dog alert should proceed like any other, allowing each side to make their best case with all evidence available. The record in this case supported the trial court’s determination that police had probable cause to search Harris' car.
Basically, the courts have in essence said that you can pretty much use anybody's dog and say they have alerted you to the possible presence of drugs in order to conduct a warrantless search of someone's private property. Frankly, these decisions incentivize law enforcement having animals with about the same training your dog at home has to sit and stay and shake hands. The
Washington Post points out the flaw:
The problem here is that invasive searches based on no more than a government official’s hunch is precisely what the Fourth Amendment is supposed to guard against. Unfortunately, the way the U.S. Supreme Court has ruled on this issue not only doesn’t account for the problem, but also has given police agencies a strong incentive to ensure that drug dogs aren’t trained to act independently of their handler’s suspicions. A dog prone to false alerts means more searches, which means more opportunities to find and seize cash and other lucre under asset forfeiture policies. In fact, a drug dog’s alert in and of itself is often cited as evidence of drug activity, even if no drugs are found, thus enabling police to seize cash, cars and other property from motorists. For example, I’ve interviewed dog trainers who have told me that drug dogs can be trained to alert only when there are measurable quantities of a drug — to ignore so-called “trace” or “remnant” alerts that aren’t cause for arrest. But these trainers say that police agencies don’t want dogs trained to ignore remnant odors, because any alert is an authorization for a more thorough search.
Well, they're right more often than wrong—right?
Wrong:
The Chicago Tribune sifted through three years worth of cases in which law enforcement used dogs to sniff out drugs in cars in suburban Chicago. According to the analysis, officers found drugs or paraphernalia in only 44 percent of cases in which the dogs had alerted them.
Also in that study, turns out the dogs are super duper racist against latinos because their rate of correct detection dropped to
27 percent when sniffing a latino driver's car. Needless to say, this is not a good trend in case law protecting citizen's Fourth Amendment.