Talk:Florida v. Harris

Claims in intro about dog sniffs not implicating the Fourth Amendment

The introduction to this article states: "To date, the Supreme Court has always considered the dog sniff to be infallible, and as a result, they have maintained that a dog sniff is not a 'search' under the Fourth Amendment." I know the Court has never explicitly overruled United States v. Place, but the Court's recent opinion in Rodriguez v. United States places serious doubt upon the claim that a dog sniff is not a "search." The Court in Rodriguez stated that officers needed reasonable suspicion before they could conduct the dog sniff. Consequently, the Court implicitly concluded that a dog sniff is analogous to a Terry Stop.

For further explanation on this point, see Leslie Shoebotham, Hamilton and Griffin on Rights, April 22, 2015: Guest Blog: Leslie Shoebotham, SCOTUS: No Post-“Traffic Mission” Dog Sniffs Without Reasonable Suspicion and Rory Little, Opinion Analysis: Traffic stops can’t last too long or go too far, and no extra dog sniffs!, SCOTUSblog (Apr. 21, 2015, 7:55 PM)

I would love to hear other thoughts about this. Unless anyone objects, I propose taking out this sentence so that the article doesn't mislead people about the current state of dog sniff jurisprudence. -- Notecardforfree (talk) 23:20, 3 July 2015 (UTC)

@Notecardforfree: I went into some detail about this at Florida v. Jardines in the section entitled, "Previous dog sniff cases". The only thing wrong with the sentence that you removed was its timeliness, using the words, "to date". In fact, even today, the first part of that sentence, "the Supreme Court has always considered the dog sniff to be infallible" is a true statement. While it is true that some have challenged the "infallibility" of a dog sniff before the Court (like several of the amici curiae did in Harris), but the Court has steered far clear of that topic in their majority opinions. The closest they ever came was Justice Souter's dissent in Illinois v. Caballes. By totally ignoring the question, unanimously, in Harris, the Court signalled that it doesn't have the appetite for the question of a dog's fallibility. I'd be shocked if they'll even listen to – let alone decide on – a question that involves the notion of handler cueing, or the fact that snapdragons, petunias, vinegar, old aspirin, and some perfumes can trigger an alert.

I wish it were true, but I must also disagree strongly with the assessment that, "the Court's recent opinion in Rodriguez v. United States places serious doubt upon the claim that a dog sniff is not a "search." No, the opinion in Rodriguez stayed completely away from the issue of whether or not it is a "search". Indeed, in the entire article by Shoebotham et al., the word "search" appears only twice! The Court's decision was framed entirely along the lines of deciding on the reasonable duration of a traffic stop. I hate to admit it (because I generally disagree with Alito), but I'd bet dollars to donuts that every K-9 cop, if not every traffic cop in the country has by now received the memo telling them to hang onto that ticket and don't give it to the driver until you have dismissed them and the stop is over. Rodriguez will not cause a reduction in dog sniffs during traffic stops, nor will it result in shorter average duration of traffic stops. The only thing the Court did in Rodriguez was to hold the line strictly at the place that Caballes had held it – no more, no less.

Finally, for the Rodriguez Court to require a finding of reasonable suspicion, rather than probable cause, before it would allow the stop to be prolonged for a dog sniff is yet another clear indicator that they still do not view a dog sniff as a Fourth Amendment "search". If they did, there is no question but that they would instead have held probable cause to be the required minimum standard. —grolltech^(talk) 04:27, 28 July 2015 (UTC)

@Grolltech: I realize in retrospect that I misspoke with regard to Rodriguez v. United States. You are correct that the Court ruled that reasonable suspicion was needed to extend the stop, and the Court did not specifically address the questions of whether dog sniffs implicate fourth amendment protections. If I recall correctly, I don't think Rodriguez raised that issue on appeal -- I think his arguments primarily criticized the Eighth Circuit's conclusion that the extension was de minimis. Nevertheless, the dissenting opinions in Rodriguez admit that the majority's opinion is "demonstrably at odds" with Caballes and that the majority draws a "line between dog sniffs and other common police practices" (see pp. 5-6 of Justice Thomas' dissent in the slip opinion). This is by no means an admission that the court disapproves of Place, but as the articles I cited above suggest, Rodriguez may foreshadow a shift in the court's attitudes toward dog sniffs.

I primarily objected to the language quoted in my original post (which I have since removed from the article) because I think there are two reasons it would mislead readers. (1) With regard to the "infallibility" issue, the Court in Harris stated that dogs are "reliable," not "infallible." In fact, the word "infallible" is never mentioned in the opinion. I think it is fair to say that the Court considers dogs "reliable," but I don't think the Court would rule that dogs never fail at their job. (2) With regard to the search issue, the Court has held that dog sniffs, in some situations, do implicate the fourth amendment. This is what the Court held in Jardines. I know that the case was decided on trespass grounds, but it would be misleading to say that that dog sniffs never implicate the fourth amendment. Justice Scalia explains in footnote three in Jardines that "snooping" with a detection dog implicates the fourth amendment when done on private property. Consequently, it is misleading to state that the use of a dog never implicates the fourth amendment.

I appreciate your thoughtful and articulate response to my earlier comments. Although my clumsy statements about the holding in Rodriguez may suggest otherwise, I have done quite a bit of research on issues regarding the fourth amendment and traffic stops. I certainly enjoy discussing this topic, and I very mush appreciate your willingness to engage in a discussion of these issues! I am curious, however, why you think that a dog sniff would require probable cause? Do you not think that a dog sniff is analogous to a "lesser" seizure like a Terry stop? It seems bizarre to me that the Could allow officers to engage in traffic stops with reasonable suspicion, but then require a higher degree of suspicion for dog sniffs. -- Notecardforfree (talk) 06:36, 28 July 2015 (UTC)

Not clumsy at all, and I can tell that you've done your homework. You know, I had to laugh when the dissent claimed the majority opinion to be "demonstrably at odds" with Caballes, and yet, they held strictly to the line that was previously drawn by Caballes. Such is the nature of legal doublespeak... I think the Caballes court would absolutely have held that the dog sniff is "infallible", for that "mythic" quality of never (or rarely) being wrong, combined with the belief that they can detect only contraband and nothing else, forms the entire basis for the claim that a dog sniff is sui generis. There is, of course, a growing body of peer-reviewed scientific evidence that shows quite conclusively that both of those fundamental assumptions are quite wrong, and I think that is the reason the Court appears to be softening slightly, even though they will go out of their way to avoid the topic. I'd love to hear a statistic that estimates just how many people have been wrongly incarcerated as a result of these assumptions; I suspect the numbers would be stunning.

As to the above statement, at the time it was written, it was a true statement – neither Harris nor Jardines had been decided, and every case up to that point had relied on the "dog sniff is not a search" mantra. As to my assertion about probable cause, we know that Fourth Amendment jurisprudence has required a showing of probable cause whenever a full-on Fourth Amendment "search" is intended. We know that in Terry stops, "specific and articulable facts" must support the "reasonable suspicion" needed to justify a brief detention and pat-down to look for weapons (but not for drugs). And finally, we know that the "dog sniff that is not a search" is the tool that is used to develop the probable cause that is needed to enable them to (finally) perform a search. My only point was that if the Court intended to reverse itself and consider a dog sniff to be a "search", then probable cause would be mandated before they could deploy that tool. That can never happen, and will never happen – they will never paint themselves into that corner. The best they can do is chip away at the edges, as they are doing, but they won't go further than that. —grolltech^(talk) 11:14, 28 July 2015 (UTC)

Thank you for your kind words -- I have helped design search and seizure policies for law enforcement agencies, so I have some familiarity with these issues on a professional level. If you are interested in constitutional issues surrounding the intrusions into private spaces by dog sniffs, you might like this fascinating article. I am not familiar with any rigorous studies about the accuracy of dog sniffs, but Justice Souter's dissent in Caballes cites some troubling statistics. For another perspective on the issue, see this recent case from the Sixth circuit, which argues that dog sniffs of a house are a search but dog sniffs of a car aren't a search that implicates the fourth amendment. In any case, thank you for your efforts to make these fantastic articles about dog sniff cases -- perhaps it will not be long before these issues return to the high court. -- Notecardforfree (talk) 05:55, 29 July 2015 (UTC)