Proof that Dog has Performed Reliably in Controlled Settings Enough for Probable Cause

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


We love dogs. Make no mistake about that. But we do not believe they have a place in our courtrooms other than to protect them. While we admire the German Shepard’s 225 million scent receptors compared to our own measly 5 million, this scent ability should not be a basis for overriding standards of reliability for criminal evidence which have been in place for nearly 250 years in this country. Both state and federal courts have been conflicted in recent years wrestling with the role “scent hounds” should play in our legal system. For example, Texas courts have kicked “scent lineup dogs” out of the state’s courtrooms while the U.S. Supreme Court recently, in a unanimous decision, held the Florida Supreme Court committed reversible error by requiring prosecutors to provide a log of a drug detection dog’s field performances to determine its reliability.


The case of Clayton Harris began in June 2006 when K-9 Officer William Wheetley of the Liberty County, Florida Sheriff’s Office, stopped Harris’ truck because it had an expired license plate. Wheetley was accompanied by his trusted German Shepard, Aldo, who had been trained to detect certain narcotics—cocaine, heroin, marijuana, ecstasy, and methamphetamine. Once the officer reached the driver’s side door of Harris’ vehicle, he noticed that Harris was “visibly nervous”—shaking, unable to sit still, and breathing rapidly. Wheetley also saw an “open can of beer” in the vehicle’s cup holder. The officer then asked Harris for consent to search the truck. Harris refused. Wheetley got Aldo out of the police unit and walked him around Harris’ truck for what is called a “free air sniff.” Aldo’s nose “alerted” at the driver’s side door handle prompting the canine to act with certain “distinctive behaviors” that signaled to the Officer Wheetley that it smelled drugs there.


The Supreme Court explained what happened next: “Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals—all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely ‘cooked’ methamphetamine at his house and could not go ‘more than a few days without using” it. The State charged Harris with possessing pseudoephedrine for use in manufacturing methamphetamine.”


Defining probable cause is as hard as wrestling a greased pig. Thirty years ago in Texas v. Brown the Supreme Court held that probable cause to conduct search exists when “the facts available to [a police officer] would ‘warrant a [person] of reasonable caution in the belief’ that contraband or evidence of a crime is present.” That same year in Illinois v. Gates the Court added that “finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence … have no place in the [probable cause] decision;” that at the end of the day, all that is required is a “fair probability” on which a “reasonable and prudent” person would act. Twenty years later, still trying to grasp that greasy pig, the Court in Maryland v. Pringle observed that probable cause cannot be reduced to a “precise definition or quantification.” Whether or not a police officer has probable cause to search will be based on the “totality of circumstances” of each case.


With probable cause being what the Gates court called a “fluid concept,” lower courts, particularly at the state level, were forced to define probable cause on their own given the facts and circumstances of each case. That is precisely what the Florida Supreme Court did when it heard Harris’ case on direct appeal. At the trial court level Harris had filed a motion to suppress the evidence found in his truck, alleging that Aldo’s alert did not provide adequate probable cause for Wheetley to conduct his search. The officer gave the following testimony at the hearing:


  • In 2004 he and a different dog had completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department.
  • That same year Aldo, with another handler, completed a 120-hour course given by the Apopka, Alabama Police Department.
  • That same year Aldo also received a “one-year certification” from a private company called Drug Beat which “specializes in testing and certifying K-9 dogs.”
  • Wheetley and Aldo joined forces in 2005, completing a 40-hour refresher course in Dothan. The pair also did “four hours of training exercises” each week to stay in “drug alert” shape.


At the suppression hearing before the trial court, prosecutors introduced “Monthly Canine Detection Training Logs” in support of Wheetley’s testimony. The logs revealed Aldo always found hidden drugs and performed his tests”satisfactorily.”

This testimony and evidence probably influenced Harris’ defense attorney’s decision not to pursue the “quality of Aldo’s or Wheetley’s training.” The attorney instead focused her challenge to probable cause on Aldo’s certification and field performances. This strategy was given a boost when Wheetley acknowledged on cross-examination that he “did not keep complete records of Aldo’s performance in traffic stops or other field work.” The trial court was not impressed. It denied Harris’ suppression motion.


On direct appeal, the Florida Supreme Court made it clear it was not impressed with either the trial court’s suppression denial or with Aldo’s training and certification.” “[W]hen a dog alerts,” the court explained, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” The state high court, therefore, held that in order for the State to establish a drug dog’s reliability, it had to produce substantially more evidence, such as:


“[T]he State must present … the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”


The Florida Supreme Court reasoned that a “dog’s performance history would provide critical information about whether its handler (conscious or not) cued the dog to alert or whether it could not distinguish between actual and a residual of drugs. These factors could not be determined in Harris’ case because Officer Wheetley did not keep complete records about Aldo’s field performances.”


After citing three of its previous decisions (Gates, Brown and Pringle) in which the Supreme Court lamented about how difficult it is to establish a precise definition of probable cause, that it is a “fluid concept,” a unanimous court in Harris, through an opinion written by Justice Kagan, insulted and even chastised the Florida Supreme Court for having “flouted [the Supreme Court’s] established approach in determining probable cause.” The mixed liberal/conservative court explained its almost contemptuous attitude toward the Florida Supreme Court this way:


“To assess the reliability of a drug-detection dog, the [Florida] court created a strict evidentiary checklist, whose every item the State must tick off. Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces documentation of the dog’s ‘hits’ and ‘misses’ in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis …” Justice Kagan added: “Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors abound in such records.”   The Court cheekily continued with the proper inquiry, “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 nation’s high court has given its blessing in a long line of cases to prosecutorial misconduct, has uncourageously refused to recognize “actual innocence” as a free-standing right of review, has sanctioned ineffective assistance of counsel, has gutted Miranda to the point that the “right to silence” no longer exists in any meaningful way, has repeatedly closed its doors to condemned inmates allowing patently innocent individuals to be executed, and the egregious list goes on and on.

Now the court has given its constitutional blessing to incompetent “scent hounds.” The fact that a dog like Aldo may have an undocumented history of false positives no longer matters, nor does the fact that a dog’s handler may cue the canine to alert on drugs. All the State must show, as part of the totality of the circumstances, is that a given drug detection dog received some training to make it a competent expert. That’s as ridiculous as saying law school training makes an attorney, prosecutor, or judge competent; or that degrees from mail order universities in Puerto Rico makes an individual a “forensic expert.”


Just as we have repeatedly said that incompetent criminal defense attorneys, unethical and rogue prosecutors, biased and corrupt judges, and charlatan forensic experts have no place in our criminal justice system, we must now add incompetent “scent hounds” to that list.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization.