A Sniff Is A Search By Any Other Name, But Is It Reliable? Florida v. Jardines and Florida v. Harris

The United States Supreme Court has weighed in on two K9 cases to conclude that a sniff is a search that must be supported by probable cause, and the reliability of that search is judged under the totality of the circumstances by examining the dog’s training and performance in controlled certification and training settings.

A Sniff is a Search by Any Other Name:  Florida v. Jardines

In Florida v. Jardines, Miami/Dade County Detective Pedraja received an unverified tip that Jardines was growing marijuana in his house.  A month later, the DEA and local police staked out Jardines’ home.  They saw no activity and could not see past the closed blinds into Jardines’ house.  After fifteen minutes, Pedraja and K9 Detective Bartelt walked Franky, a chocolate lab, up Jardines’ sidewalk.  At the porch, Franky started to show changes in his behavior that indicated he sensed the odor of one of the controlled substances he had been trained to detect.  Franky “bracketed,” sniffing back and forth to locate the source of that odor, and narrowed the source to the base of Jardines’ closed front door.  Franky then “alerted” that he located the source of the odor by sitting at the front door.

Pedraja used Franky’s performance to obtain a search warrant, and the subsequent search revealed marijuana plants in Jardines’ house.  Jardines was arrested, and he challenged the warrant, claiming that the officers’ actions and Franky’s sniffing was a search unsupported by probable cause.

As I suspected, the Court agreed with Jardines, relying on the concept of curtilage, the private area surrounding a person’s house.  Traditionally, curtilage is part of the home itself, and enjoys the same constitutional protections as the inside of our homes.  The police cannot not enter and search in one’s curtilage unless implicitly or explicitly invited.  We explicitly invite our friends to dinner, and we implicitly invite trick-or-treaters and Girl Scouts selling cookies to walk up to our front door and to knock.

Justice Scalia concluded that this implicit invitation could include an officer who walks up to the front door, unarmed with a trained K9, but does not extend to an officer with his highly trained K9 who is hoping to find incriminating evidence.  Justice Scalia ended his analysis there, refusing to analyze whether the officers’ actions invaded Jardines’ right of privacy.

Justices Kagan, Ginsburg and Sotomayor concurred with Justice Scalia, analogizing the officer’s actions to a creepy neighbor who comes on your porch with high-powered binoculars.  They agreed with Justice Scalia’s analysis on curtilage grounds, but found additionally that Jardines’ right of privacy was violated by using Franky as a “super sensitive instrument” to go beyond a “plain sniff.”

Justice Alito, with Chief Justice Roberts, Justice Kennedy and Justice Breyer dissented, finding no trespass or invasion of privacy when the detectives spent all of one or two minutes walking down Jardines’ driveway to his front door.   They also pointed to the fact that Detective Pedraja could smell marijuana from outside the door, although Detective Bartelt could not.

But Is The Sniff Reliable?  Florida v. Harris

In yet another Florida case, Florida v. Harris, Officer Wheetly pulled Harris over for a routine traffic stop.  Harris was visibly nervous and had an open beer can in his truck.  Wheetly decided to search Harris’s truck with his K9, Aldo.  Aldo alerted at the driver side handle of Harris’s truck, and Wheetly found pseudoephedrine, matches, hydrochloric acid, iodine crystals and antifreeze – ingredients commonly used to make meth.  However, Aldo was not trained to detect these ingredients – he had only been trained to detect meth, marijuana, cocaine, heroin and ecstacy.

While Harris was on bond, Wheetly caught Harris with a broken tail light and pulled him over again.  Aldo once again alerted at Harris’s driver side door, but Wheetly found nothing in the truck that time.

Harris moved to suppress the meth ingredients.  At the hearing on the motion to suppress, Wheetly testified to his and Aldo’s training.  Wheetly and another dog had completed a 160-hour narcotics detection course.  Aldo and a different handler completed a similar 120-hour course, and Aldo received a one-year certification from a private company.  When Wheetly and Aldo teamed up, they completed a 40-hour refresher course together.  Wheetly and Aldo train together four hours a week, with Wheetly hiding drugs in certain areas and leaving other areas blank to determine whether Waldo Alerted correctly.  Monthly detection training logs showed that Aldo always found the hidden drugs and that he performed satisfactorily on each day of training.

Harris didn’t challenge Aldo’s training, instead focusing on certification and field performance, including what he characterized as the two “false positive” results when Wheetly pulled him over.  The trial court denied the motion.  The Florida Supreme Court sided with Harris, spelling out an array of evidence, including field results and “false positive” records, that K9 officers must keep to establish probable cause.

The United States Supreme Court handily sided with Aldo, ruling unanimously that K9 officers had no duty to maintain field performance history and records of purported “false positives.”  The Court refused to adopt Florida’s laundry list of records that K9 officers had to maintain, going back to a “totality of the circumstances” test to conclude that probable cause is present if the dog’s training and testing in controlled settings support the dog’s reliability, and a defendant fails to undermine that evidence.

The Court refused to hold a K9 to his field performance results.  Those records would not show false negatives – when the K9 failed to find drugs that were present – because the officer would not have conducted the search and found the substance.  More importantly here, if the dog alerts and the officer does not find drugs, that does not automatically result in a “false positive.”  The Court had no problem concluding that Aldo was absolutely right when he alerted, but that the residual meth odor was in a quantity too small for Wheetly to observe and seize.

The Court pointed out that defendants will have the opportunity through facts and expert testimony to challenge the reliability of detection dogs – and their handlers.  Some of the challenges may include the adequacy of training and certification, the dog’s and handler’s performance in assessments, and even field performance.  The Court gave two examples of field performance issues, including whether the handler intentionally or inadvertently cued the dog, or whether the dog and handler team were working in an unfamiliar environment.

Ultimately, the Court phrased the question as “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.”  In applying that test, the Court found that Aldo’s sniff was more than up to snuff.

The Nose In Everyday Life

A recent study funded by the Department of Justice found that detection dogs in controlled environments were accurate 90% of the time, if not more.  Interestingly enough, the dogs were rotated through three different diets, and a high fat diet increased accuracy.  The study may be more anecdotal than scientific, with only 17 dogs and an eighteen-month window.  But there is no doubt that our companions’ noses are super machines.

It is no wonder that the first chapter of Alexandra Horowitz’s wonderful book, Inside of a Dog, begins with describing the world “from the dog’s point of nose.”  In the chapter entitled “Sniff,” Horowitz describes beagles’ sense of smell as possibly “millions of times more sensitive than ours.”  We routinely discourage our companions from using their noses when we are out on walks or when they greet our human friends in particularly exuberant doggy ways.  What can happen when we give our dogs a channel to use their “super sensitive instruments”?

Apparently, great things!  The April 2013 edition of The Whole Dog Journal describes how the new activity and sport, K9 Nose Work^®, is helping shelter dogs cope and get adopted.  Doing K9 Nose Work^® with my own dogs, Boomer and Sophie, and teaching K9 Nose Work^® classes, give me a profound respect for our companions’ olfactory abilities.

More on Tracey v. Solesky and Maryland dog bite cases

The Maryland General Assembly’s Task Force appointed to address Tracey v. Solesky are working on a bill, and the General Assembly may have the opportunity to vote on the bill during an upcoming special session this month.  The bill is expected to impose liability on all dog owners, regardless of breed, but revert to the common law for landlords, imposing liability only if the landlord knows of the dog’s vicious propensities.

In the meantime, the law remains as it was prior to the Tracey v. Solesky ruling.  Delegate Heather Mizeur sent a request to the Maryland Attorney General regarding the status of the law while Ms. Tracey’s motion to reconsider is pending in the Maryland Court of Appeals.  The Attorney General responded that Tracey v. Solesky is stayed and does not take effect until the Court takes up the motion to reconsider.

Other jurisdictions are following Maryland closely, including right here in northern Virginia.  For a more detailed look at the ruling and its impact for Virginia, don’t miss my article in NOVADog Magazine’s summer edition.  You can also learn more by watching the current episode of The Pet Show with Dr. Katy, which features several interviews, including one with Libby Sherrill, the creator of the documentary Beyond the Myth.

UPDATE (8/6/12):  The American Bar Association’s House of Delegates just issued Resolution 100, promoting breed neutral legislation and proposing the elimination of breed bans and breed specific legislation.

Hi Five! The USDA Proposes Rule to Close Internet Loophole

Today, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) proposed a rule that redefines the definition of “retail pet store” under the Animal Welfare Act (AWA) in order to shut a loophole that has allowed retailers to sell animals “sight unseen” via the internet, by mail or over the phone.

Initially passed in 1966, the AWA carved out retail pet stores, which would not be subject to USDA licensing and inspection requirements.  The rationale for this carve-out was because the consumer had the opportunity to check an animal’s health and condition in person in the store before buying the animal.  Technology has changed all of that, allowing retailers who use the internet, mail and phone sales to escape any kind of inspection by the consumer or the government.

Under the proposed rule, a person who breeds more than four female dogs, cats and/or small exotic or wild mammals must open their doors either to the public or to APHIS inspectors, who will also require a license.

This rule still doesn’t impact backyard breeders and traditional retail pet stores that sell directly to the public.  State regulation governs those stores and breeders, but states have had mixed results with puppy mill legislation.  When states have been able to pass puppy mill statutes, they are often fairly weak.  For example, Virginia’s puppy mill statute only covers breeders who have at least 50 breeding dogs.

The public will have 60 days from the time the proposed rule is published in the Federal Register to submit comments.  In the meantime, here is a link to the proposed rule.

Free Downloads for Virginia Boarding Establishments

I’ve posted before about who is responsible for a boarded animal’s vet care, notice requirements for Virginia boarding establishments, and how bailment law impacts boarders and groomers.

I won’t repeat these posts, but it is vital that you understand Virginia’s veterinary care and liability notice requirements for boarding establishments.  “Boarding establishments” are defined quite broadly, and would include kennels, doggy daycares, veterinarians and animal hospitals that board animals, and any other place where companion animals are “sheltered, fed and watered in exchange for a fee.”

The one point worth repeating is that Virginia boarding establishments are required to provide veterinary care to animals in their care.  You may not get stuck with the bill, but you absolutely must get care for the animal in the event of an emergency.

All Virginia boarding establishments are required to give two types of notice regarding liability and veterinary care.  I’ve created two downloads that will help you get in compliance with both of these notice requirements.  These downloads comply with the law’s specific notice requirements,  right down to the correct font size (at least ten-point) and type (boldfaced)!

The first download (PDF) must be in a written document and spell out exactly what the law requires for emergency veterinary care and liability.  You must provide this written notice to your clients in writing before they drop off their animals.  You can include this in your contract if you give your clients a copy of the contract.  Best practices would be to include this in your contract and to have separate copies of this notice on brightly colored paper in case the client asks for a copy.

The second download (PDF) must be displayed on a sign placed in a conspicuous location and manner in your intake area.  Make sure that this sign and the other notice are in bold print with at least ten-point font.  It’s also best to have both notices in all caps.

If you are a Virginia company or nonprofit and you want to know more about other laws that may impact you, consider getting a copy of the Virginia Comprehensive Animal Law Handbook.  It costs only $10, it’s updated annually, and you can order it from the Virginia Federation of Humane Societies.

Public Meeting on the Solesky Decision this Sunday

The Maryland Animal Law Center will be hosting a public meeting on the fallout of the Solesky decision and what impact it has on pet care industry companies, rescues and owners.  The meeting is this Sunday, May 6 from 2:00 to 4:00 at Coventry School for Dogs in Columbia, Maryland.  This is a great opportunity to get up to speed on what impact the Solesky decision may have.

Follow up on the Solesky Ruling

Concerned about the recent Solesky decision in Maryland, and what impact it will have?

Tune in tonight at 8:00 PM on Pit Bulletin Legal News Radio for an in-depth discussion of the Solesky decision, and what impact it is having on rescues and insurance companies.  If you can’t make it tonight, the show will be archived so you can listen to it later.

The Humane Society of the United States has also compiled information especially for pit bull and pit bull mix owners who live and rent in Maryland.

If you are looking for an animal law attorney in Maryland, you can reach out to the Maryland State Bar Animal Law Section for help.

Sometimes Bright Line Rules Just Aren’t the Answer: The Problem with Tracey v. Solesky

Bright line rules have their place. Society often benefits from clear, objective and unambiguous rules, when those rules produce even-handed and predictable results and  have very little risk of creating harsh or unjust results. Take speed limits, voting ages, and Miranda warnings as examples.

But sometimes life is not black and white. Bright line rules are inappropriate and dangerous tools any time the issues turn on a variety circumstances and there is a risk of sweeping up innocent activity or individuals. Then a balancing test, or case-by-case analysis, is much more appropriate.

Today, the Court of Appeals of Maryland opted for a bright line rule in exactly the kind of case where a bright line rule is inappropriate. In Tracey v. Solesky, the Court ruled:

Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull cross, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has a right to prohibit such dogs on leased premises) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull, that person is liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. In that case a plaintiff has established a prima facie case of negligence. When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous.

Such a bright line rule – pit bulls are per se dangerous – is misguided. Don’t get me wrong. I in no way condone what happened in this case. The dog was left in a small pen, escaped, and attacked and seriously injured a child. The owner put the dog back in the same pen, and the dog escaped yet again, and mauled another child, causing life threatening injuries.

The dog’s breed is not the main issue in this case. The much larger issue is the fact that the owner was completely irresponsible.

There was no reason for the Court to make new law in this case. The defendant could have tried to invoke the “one free bite” rule. But, at best, the “one free bite” rule would only help him escape civil liability for money damages as to the first child. He was certainly on notice of the dog’s propensity when the second child was attacked. Additionally, the “one free bite” rule would not impede a dangerous dog proceeding, and a well-crafted dangerous dog statute can provide restitution to victims without the hassle of a civil law suit.

The most frustrating part of this ruling is that there are many pit bull and pit bull mix owners who are highly responsible and who will get swept up in this bright line rule. Likewise, the ruling will not affect the highly irresponsible owners of dogs who are not pit bulls or pit bull mixes. Dare I even mention the issue of how a court is to determine whether a dog is a pit bull or pit bull mix.

Courts and legislators should focus on owner responsibility, not breed. Fortunately, Virginia’s dangerous dog statute makes it clear that breed alone is not a reason to declare a dog to be dangerous. I hope Virginia keeps its focus on owner responsibility and does not choose to follow the path of neighboring Maryland in this regard.