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By: Brian Dempsey
In a unanimous decision, the Supreme Court concluded that an “alert” by a well-trained narcotics detection dog establishes probable cause for the search of a vehicle’s interior for further evidence of illegal drugs. Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013). Emphasizing that probable cause is a practical, commonsense standard, the Court rejected the Florida Supreme Court’s rigid prescription that the government produce certain elements of proof in order to show that a canine’s sniff and alert is sufficiently reliable to constitute probable cause. Rather, the opinion, authored by Justice Elena Kagan, allows a court to presume that a dog’s alert is reliable, so long as there is some evidence that the dog is certified after being tested in a controlled setting or that the dog has recently and successfully completed a training program which included such an evaluation. This presumption, of course, can be rebutted by evidence showing that the training or evaluation was faulty or insufficient. In sum, the Court instructed that the “question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.”
The Court has not yet issued its opinion in Florida v. Jardines, but the Court granted certiorari to decide whether a dog sniff at the front door of a suspected marijuana grow house by a trained drug dog is a search requiring probable cause and a warrant. Because of the enhanced privacy expectations which attach to a private home (as opposed to a vehicle on public roads), we can expect that Court will apply a greater degree of skepticism and scrutiny to the investigative conduct at issue in Jardines.