The U.S. Supreme Court on Tuesday upheld the validity of an alert by a drug-sniffing dog whose certification had expired. In a unanimous decision on one of two drug-sniffing dog cases before the court this term, Justice Elena Kagan said the Florida Supreme Court imposed requirements far too onerous on police to establish the reliability of police dogs. She wrote:
The question—similar to every inquiry into probable cause—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 decision was narrow in its scope, holding only that Florida’s “strict evidentiary checklist” for establishing the reliability of a dog was inconsistent with flexible standards for establishing the probable cause necessary to justify an arrest. In particular, it criticized the court’s reliance on records of a dog’s performance, noting that determinations of “success” may not account for dogs’ sniffing of trace amounts of drugs or well-hidden drugs that the police never find. Justice Souter found otherwise when he documented the pervasive use of dogs with error rates as high as 60 percent in a 2005 dissent. He wrote then:
The infallible dog … is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. … In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.
Today’s decision does not revisit the majority’s opinion in that 2005 case, and thus does not question the expansive police authority to use the dogs without reasonable suspicion of drug offenses. Another police dog case coming down the pike this term, however, will question whether use of such dogs can be expanded to the front door of someone’s home without probable cause.
While today’s decision is narrow and reasonable, holding only that the court may not impose a too-onerous requirement on police, it leaves open the policy concern that police maintain broad discretion in their use of dog sniffs, with no national standards and little oversight to ensure that these dogs are even reliable. In 2011, more people were arrested for drugs than for anything else, according to FBI statistics. And without more rigorous standards, police maintain the discretion to use drug sniffs as a cover for stops and searches that could not otherwise be justified by police.