Orin Kerr writes:
The Supreme Court decided Florida v. Harris today, the Fourth Amendment case on when a drug-sniffing dog’s alert constitutes probable cause. In a 9-0 decision by Justice Kagan, the Supreme Court overturned the Florida Supreme Court standard that had required production of records of the dog’s reliability in the field in order to determine probable cause. Today’s opinion emphasizes that the probable cause inquiry is a practical common-sense judgment based on a totality of the circumstances that cannot follow any specific rules. As a result, the Florida Supreme Court’s specific rules are improper. So far, nothing surprising. The problem is that dog-sniffing cases are very common, and yet judges are not well-suited to know when a dog is sufficiently reliable. So how should judges apply this “totality of the circumstances” standard?
So can pseudoscientific techniques be used to establish probable cause if the “reasonable person” – who generally doesn’t know squat about scientific rigor – believes that the technique is accurate and reliable? Is that what the court is opening the door to? If I set up Dissent’s School of Drug Detection and train you to use this little black box that I have in my pocket and certify that you are trained to use it effectively, then if the box signals the presence of drugs when you hold it near a car, you have probable cause to search the car for drugs? What, you say? The box system has to have some reliability and accuracy that has been subjected to controlled experiments to determine its accuracy? You’d think so, wouldn’t you, but you’d be wrong, as the court seems to have a pretty low standard when it comes to establishing probable cause:
evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.
Couldn’t some of the same statements have been made about the use of polygraphs?
Yesterday’s ruling may not have surprised Orin, but it did surprise me, and to see a unanimous decision was even more surprising and disappointing.
Julian Sanchez has some thoughtful commentary in Clever Hans v. the Fourth Amendment.
Pseudoscience in the courts is a major problem, which is why the Daubert standard of demonstrating acceptance of a technique or measure by the scientific community was incorporated. Pseudoscientific methods or techniques that have not met rigorous scientific standards should also be disallowed when someone’s right to be free from unwarranted searches is on the line. Even though the ruling states that the defendants have the right to challenge the accuracy and dependability of the individual dog’s signal, I think this ruling has now shifted the onus to the defendant to prove unreliability instead of onto law enforcement. Law enforcement may like this ruling, but I suspect most privacy advocates will not.