The case came out of Florida where Clayton Harris, a truck driver, was pulled over on a routine traffic stop. The officer in charge of the stop, William Wheetley, later testified that Harris seemed nervous at the stop, and based on that nervousness he asked for permission to search the truck. Harris refused the search, but instead of letting him go Wheetley went and grabbed is K-9 partner Aldo and walked him around the car. Aldo reportedly alerted to the presence of drugs and the officers searched the truck. During the search they didn’t find any of the drugs Aldo was trained to detect but the officers did find various ingredients for making meth. Two months later, Wheetley again stopped Harris, only this time it was for a broken brake light. Once again Wheetley walked Aldo around the car and once again the dog signaled there were drugs in the car. Once again a search of the vehicle failed to turn up illegal narcotics.
Harris challenged both the searches, arguing they were unconstitutional because the officers lacked probable cause in each case. The Florida Supreme Court agreed and ruled that both searches were illegal. In order to use a dog’s alert to justify a search, the state court said, police must demonstrate more than that the dog was trained and certified to conduct such a search. Police must also present field performance records to show that the dog is a reliable detector of the presence of drugs. Aldo’s performance suggested an unreliability, and police power should have a stronger check on it than faith in animal training, the Florida court reasoned.
But the U.S. Supreme Court disagreed.
Writing for a unanimous court, Justice Elena Kagan said that requiring an inflexible performance checklist as the ultimate determination of canine reliability defies common sense, even if individual rights are at stake. Instead, the justices said, courts should generally consider a dog sniff as reliable if the dog has completed and passed a certified training program that includes controlled performance tests.
This may sound like a lot of parsing out of the technicalities of police work, and in some ways it is. But the impact this decision will have on an expanding surveillance state is much more than just a technicality. To justify a search in the context of a routine traffic stop, police need probable cause to believe that the person stopped is committing a crime that justifies the search. Police dogs hitting on suspects like Harris, regardless if those hits are correct, will now become a proxy for probable cause which is an open invitation for police to search. As we’ve seen in New York and elsewhere, an open invitation to lawmakers to search without fail falls heaviest on the poor and communities of color. There’s no reason to think that will change.
What’s most upsetting about the decision is its unanimity at the Court. The idea of probable cause has been falling out fashion at the high court for years, if not decades, since the Warren Court but this latest decision suggests that modern policing techniques can easily lull the justices into accepting a “no harm no foul” argument when it comes to these kinds of incidental searches. I don’t expect Justice Scalia to come to the defense of everyday citizens, but when even the liberal wing of the Court not just signs on, but authors the opinion in a case that dramatically expands the power of local law enforcement to harass citizens, then it is a sad day for the Constitution and an even sadder day for the people.
Photo from NORCAL_POLICE/FIRE/EMS via flickr.