LEGAL UPDATE
“Hound Dogs, Seizures, DNA and Blood” or
“Saturday Night in Muhlenburg County”
A Good Year!
For the Florida Folks
Road Map
• Florida v. Clayton Harris
• Florida v. Jardines
• Maryland v. King
• Bailey v. US
• Missouri v. Mcneely
FLORIDA V. CLAYTON
HARRIS:
“Canine Searches on “Rocky Ground?”
Canine Units
• Hard to get national numbers
• Larger organizations have multiple units
• Not cheap ($19-20k) initial investment
• On going costs
• Private vendors
• Self established criteria
• Profit
4th Amendment
• The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the
place to be searched, and the person or things to be
seized.
Reasonable Expectation of Privacy
• Katz v. U.S. (1967)
• Appeared to cast off the yolk of property law as the basis
of Fourth Amendment analysis and adopted a privacy
approach.
• “Fourth Amendment protects people, not places … What
a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection … but what he seeks to preserve as private,
even in an area accessible to the public, may be
constitutionally protected” (Justice Harlan’s concurrence
in Katz v. U.S.1967: 351-352).
Test for REP
• 1. The person must first have shown an actual subjective
expectation of privacy in a matter.
• 2. The subjective expectation of privacy manifested by
the person must be of such a nature that society is willing
to recognize it as reasonable;
• Both gets you REP
• REP gets you standing to object to the search or
seizure
Seminal Canine Sniff Case Law
• US v Place (1983)
• Seizure of luggage based on RS and subjected to a canine sniffOK.
• City of Indianapolis v. Edmond (2000)
• Car at checkpoint subject to canine sniff- Sniff OK.
• Illinois v. Caballes (2005)
• Car at lawful traffic stop subject to canine sniff-OK.
Why are canine sniffs different?
• Canine sniff “sui generis”
• Minimally Intrusive.
• No rummaging through your stuff
• Only detects the presence of contraband
• Nothing revealed but the bad stuff
Reliability
• The Fourth Amendment presumptively requires a warrant
for all searches or seizures.
• Narrowly tailored exceptions have been created to allow state
actors to search without warrants but based upon probable cause.
•
Trained drug detection alerts are one such
exception.
• This exception flows from the perceived reliability of
canine sniffs to detect contraband and thus supply
probable cause for the belief contraband is present.
• The canine’s reliability is the foundation of the warrantless
search behavior.
Relaiable
Canine Snif
Alert
Proable
Cause
Warrantless
Search
Establishing Legal Reliability
• The method, manner, and evidence used to prove a
canine’s reliability has received considerable attention in
the courts.
• Federal courts generally certification is enough.
• Types of evidence:
• Certification (for both dog and handler)
• Training records (for both dog and handler)
• Training descriptions (for both dog and handler)
• Re-certifications (for both dog and handler)
• Field Performance Records
Field Reliability
• Legal reliability is different from actual/factual reliability.
• Legal reliability supports the states’ action.
• Factual reliability goes to the actual presence of
contraband.
• The potential for residual contraband clouds the issue.
• Recently removed or very tiny amount
Canine Alert
Reliable
Potentially Unreliable
Alert
Contraband
Present
Alert
Contraband Not
Present
Potential False Positive
Residual Contraband Present
*“Field/Practical” False Positive*
No Residual Contraband
Present
“True” False Positive (Over alert)
No Canine Alert
No Alert
and
Drugs NOT
Present
No Alert
and
Drugs Present
False Negative (Under alert)
Florida v. Clayton Harris
• Harris was initially stopped for an expired license plate.
• Officer Wheetley observed that Harris was very nervous
with shaking hands and rapid breathing.
• Wheetley ask for consent to search the vehicle but Harris
declined.
• Officer Wheetley then retrieved Aldo and walked him
around the car. The dog alerted on the driver’s side door
handle.
• Officer Wheetley, based on the alert, searched the vehicle
and found “200 loose pseudoephedrine pills, 8,000
matches, a bottle of hydrochloric acid, two containers of
antifreeze, and a coffee filter of iodine crystals” but no
drugs.
Facts
• After being Mirandized Harris admitted to abusing and
cooking methamphetamine.
• He was charged with possession of precursors for use in
the production of methamphetamine.
• Harris was stopped subsequently while on bail again by
Officer Wheetley and Aldo for a broken tail light. Aldo
sniffed the exterior of the car and altered again upon the
driver’s side door handle.
• No contraband was found in the search that followed.
Facts 3
• Harris moved to suppress the evidence asserting that the
alert by Aldo did not amount to probable cause.
• Wheetley testified about the training that both he and Aldo
had received.
• Wheetley was trained with a different dog and Aldo with a different
handler.
• Aldo was also certified by a private company for a year.
• Together Wheetley and Aldo participated in a 40 hour
refresher course and conducted 4 hours a week of
continued training.
• Wheetley admitted on cross examination that he did not
keep full field performance records for Aldo, rather he only
recorded alerts that culminating in arrests.
Facts 4
• Motion fails.
• Florida Supreme Court overturns.
• “Evidence that the dog has been trained and certified to detect
narcotics, standing alone, is not sufficient to establish the dog’s
reliability for purposes of determining probable cause- especially
since training and certification in this state are not standardized and
thus each training and certification program may differ with no
meaningful way to assess them” (759).
• To “establish a reasonable basis for believing the dog to be reliable”
the state “must present the training and certification records, an
explanation of the meaning of the particular training and certification
for that dog, field performance records, and evidence concerning the
experienced training of the officer handling the dog, as well as any
other objective evidence known to the officer about the dog’s
reliability in being able to detect the presence of illegal substances
within the vehicle” (759).
Issue
• The issue reviewed by the Court focused on Florida’s
mandatory evidentiary requirements language.
• Whether the requirement that “the state must in every
case present an exhaustive set of records, including a log
of the dog’s performance in the field, to establish the
dog’s reliability” is proper?
Holding
• The required evidence of the canine’s performance was
“inconsistent with the flexible, common-sense standard of
probable cause”.
• Reliability examination should unfold as follows: “if the
State has produced proof from controlled settings that a
dog performs reliably in detecting drugs, and the
defendant has not contested that showing, then the court
should find probable cause. If, in contrast, the defendant
has challenged the State’s case (by disputing the
reliability of the dog overall or of a particular alert), then
the court should weigh the competing evidence.
Holding 2
• In all events, the court should not prescribe, as the Florida
Supreme Court did, an inflexible set of evidentiary
requirements.
• 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.”
Reasoning
• Difficult concept--probable cause is better thought
of as a “fair probability” on which reasonable and
prudent [people,] not legal technicians act”
• The test for probable cause looks to the totality of
the circumstances.
• fluid and rejects “rigid rules, bright line tests”.
• Florida requirements directly conflict with the
protean legal nature of probable cause.
Reasoning
• The weaknesses of field performance evidence.
• Asserting that in such records false negatives would never be
known as no search is conducted when the dog does not alert but
drugs are present
• and that in false positive situations where the dog alerts and drugs
are not found may be the result of residual odors or drugs that are
too well hidden to be found by the officer.
Reasoning
• Better evidence of a dog’s reliability comes from
controlled testing environments like training and
certification programs
Two rules regarding reliability
• First, “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”.
• Second, a court may also presume that a dog’s alert
provides probable cause “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”.
Discussion
• Wide variation in training and certification of canines will
•
•
•
•
continue.
Performance/field records potentially used but not likely.
Difficulty in establishing a dogs reliability if you are a
defendant.
Unknown impact of handlers on canine behaviors on the
street.
Might some officers be motivated by things other than the
desire to find “contraband without incurring unnecessary
risks or wasting limited time and resources” ?
Vote
Constitutional
• Kagan
• Ginsburg
• Breyer
• Sotomayor
• Scalia
• Kennedy
• Roberts
• Alito
• Thomas
9-0
FLORIDA V. JARDINES
AND CANINE SNIFFS OF
THE HOME:
“Frank[y] I don't know what I'm gonna
find”
Grow Houses
• Appear to be increasing
• Quality product demands high price
• Improvement in hydroponics
• Housing bubble?
• Dangerous-fire/explosion.
• Crime generator?
Grow Houses
• Appear to be increasing
• Quality product demands high price
• Improvement in hydroponics
• Housing bubble?
• Dangerous-fire/explosion.
• Crime generator?
4th Amendment
• Katz and REP
• Test for REP
• Subjective
• Objective
• Same Canine Sniff case law and rationale for why canine
sniffs are different from other searches.
Home Sweet Home!
Kyllo v. U.S.
• “Whether the use of a thermal-imaging device aimed at a
private home from a public street to detect relative
amounts of heat within a home constitutes a ‘search’
within the meaning of the Fourth Amendment” (Kyllo v.
U.S. 2001:4432)?
• The opinion held: “where … the Government uses a
device that is not in general public use, to explore details
of the home that would previously have been unknowable
without physical intrusion, the surveillance is a ‘search’
and is presumptively unreasonable without a warrant”
(Kyllo v. U.S. 2001:4435).
US v Jones (2012)
• Issue:
• Whether the attachment of a Global-Positioning-System (GPS)
tracking device to an individual’s vehicle, and subsequent use of
that device to monitor the vehicle’s movements on public streets,
constitutes a search or seizure within the meaning of the Fourth
Amendment.
• Holding:
• The Government’s attachment of the GPS device to the vehicle,
and its use of that device to monitor the vehicle’s movements,
constitutes a search under the Fourth Amendment.
US v. Jones
• Reasoning:
• Katz did not repudiate the understanding that the Fourth
Amendment embodies a particular concern for government
trespass upon the areas it enumerates. The Katz reasonableexpectation-of-privacy test has been added to, but not substituted
for, the common-law trespassory test.
Florida v. Jardines
• Drug investigation--Miami-Dade Police Department.
• Detective Pedraja received an unverified tip that Jardines was
•
•
•
•
•
growing marijuana in his home.
Detective along with Detective Bartlet and a drug detection
dog-Franky went to the Jardines home.
Franky walked toward the home and near the front of the home
the dog alerted.
The detective then went to the front door of the home and
smelled marijuana. He also observed that the air conditioning
had run constantly for approximately 15 minutes.
The detective used his observations as well as the canine alert
in an affidavit in support of a search warrant.
A warrant was issued and executed. The search found a grow
operation in the home and Jardines was arrested.
Issue
• Whether using a drug-sniffing dog on a homeowner’s
porch to investigate the contents of the home is a “search”
within the meaning of the Fourth Amendment?
Holding
• The Government’s use of trained police dogs to
investigate the home and its immediate surroundings is a
“search” within the meaning of the Fourth Amendment.
Reasoning
• The Fourth Amendment context a person’s home is “is
first among equals” and that the idea that a person may
“retreat into his own home and there be free from
unreasonable governmental intrusion” sits at the “core” of
the amendment.
• The space ““immediately surrounding and associated with
the home” --what our cases call the curtilage--as “part of
the home itself for Fourth Amendment purposes.”
Reasoning-Knock and Talk
• The critical question in this determination focused upon
whether intrusion on the porch “was accomplished
through an unlicensed physical intrusion”.
• The law may infer a license based upon custom. Justice
Scalia noted that an “implicit license typically permits the
visitor to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave” and that “a police officer
not armed with a warrant may approach a home and
knock, precisely because that is “no more than any
private citizen might do.”
Reasoning-why your here
• The opinion noted that there is no customary invitation to
bring a trained police dog to sniff the curtaliage in an
attempt to discover evidence of criminality. In short, “the
scope of a license--express or implied--is limited not only
to a particular area but also to a specific purpose”.
Reasoning and REP
• The opinion then dealt with the potential for a canine sniff
to trigger a reasonable expectation of privacy. Here the
Justice noted that Jones established that “the Katz
reasonable-expectations test “has been added to, not
substituted for,” the traditional property-based
understanding of the Fourth Amendment, and so is
unnecessary to consider when the government gains
evidence by physically intruding on constitutionally
protected areas.
Vote
Unconstitutional
Constitutional
• Kagan
• Roberts
• Ginsburg
• Alito
• Sotomayor
• Kennedy
• Scalia
• Breyer
• Thomas
MARYLAND V. KING
DNA and not for Maury Povich
Facts
• In 2003 a man concealing his face and armed with a gun
broke into a woman’s home in Salisbury, Maryland. He
raped her. The police were unable to identify or
apprehend the assailant … but they did obtain from the
victim a sample of the perpetrator’s DNA.
• In 2009 Alonzo King was arrested …and charged with
first- and second-degree assault for menacing a group of
people with a shotgun. As part of a routine booking
procedure for serious offenses, his DNA sample was
taken…. The DNA was found to match the DNA taken
from the Salisbury rape victim. King was tried and
convicted for the rape.
Law’s Limitations
• LEOs can collect DNA samples from “an individual who is
charged with . . . a crime of violence or an attempt to
commit a crime of violence; or . . . burglary or an attempt
to commit burglary.”
• crime of violence = murder, rape, first-degree assault, kidnaping,
arson, sexual assault, and a variety of other serious crimes.
• Once taken, a DNA sample may not be processed or
placed in a database before the individual is arraigned
(unless the individual consents)
• a judicial officer ensures that there is probable cause to detain the
arrestee on a qualifying serious offense.
Law’s Limitations
• If “all qualifying criminal charges are determined to be
unsupported by probable cause . . . the DNA sample shall
be immediately destroyed.”
• DNA samples are also destroyed if “a criminal action
begun against the individual . . . does not result in a
conviction,” “the conviction is finally reversed or vacated
and no new trial is permitted,” or “the individual is granted
an unconditional pardon
• Tests for familial matches are also prohibited.
• No purpose other than identification is permissible.
Issue
• May the police collect DNA from a person arrested for a
serious crime without a warrant?
Holding
• Yes, DNA identification of arrestees is a reasonable
search that can be considered part of a routine booking
procedure.
• When officers make an arrest supported by probable
cause to hold for a serious offense and they bring the
suspect to the station to be detained in custody, taking
and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police
booking procedure that is reasonable under the Fourth
Amendment.
Reasoning
• The Fourth does apply to this process.
• Usually, we have some quantum of individualized
suspicion to have a constitutional search but not always.
• In the Special Needs cases the critical determination is
that of “reasonableness”.
• That is, they must be reasonable in scope and manner of
execution.
Reasoning
• To determine reasonableness the Court must balance
the promotion of a legitimate government interest
against the degree to which the search intrudes on an
individual’s privacy.
• Here the legitimate government interest is to identify
persons taken into custody. It allows police to search
records already in their possession to understand the
person arrested. This can enhance the safety of staff and
others in detention. It can inform bail decisions.
• The intrusion is small-a swab of the inside of the mouth.
The search is incident to arrest. There is no threat to the
safety of the person searched. Nor does the search add
much to indignity associated with arrest.
BAILEY V. US
My house if a mile away?
Facts
• Police get a warrant to search a residence. Officers doing
prewarrant surveillance see two men leave and get into a
car. Both men match description of person thought to be
in the residence. The officers follow the men while search
team executes the warrant. The officers pull over the car
after following for about five minutes, a mile or so away
from residence.
Facts
• Ordered out of car and patted down. The two men were
placed in handcuffs. They asked why they were being
detained and were told it was because of the execution of
the warrant. Search team finds gun and drugs.
Issue
• Whether the seizure of the person is reasonable when he
was stopped and detained at some distance away from
the premises to be searched when the only justification for
the detention was to ensure the safety and efficacy of the
search?
Holding
• This seizure was unreasonable. Once an individual has
left the immediate vicinity of a premises to be searched,
however, detentions must be justified by some other
rationale.
Reasoning
• Summers case-detention is allowed without probable
cause to arrest for a crime. It permitted officers executing
a search warrant “to detain the occupants of the premises
while a proper search is conducted.”
• No particularized suspicion or danger to officers-just being
there allows this practice.
Reasoning
• Summers had three core reasons:
• “the interest in minimizing the risk of harm to the officers”
• “the orderly completion of the search may be facilitated if the
occupants of the premises are present.”
• “the legitimate law enforcement interest in preventing flight in the
event that incriminating evidence is found.”
Reasoning
• None of those really work well with the facts of the case.
• Allowing this would give too much discretion. These
detentions did not happen in the home so more
inconvenience and indignity.
• Limiting the rule in Summers to the area in which an
occupant poses a real threat to the safe and efficient
execution of a search warrant ensures that the scope of
the detention incident to a search is confined to its
underlying justification
Reasoning
• In closer cases courts can consider a number of factors to
determine whether an occupant was detained within the
immediate vicinity of the premises to be searched,
including the lawful limits of the premises, whether the
occupant was within the line of sight of his dwelling, the
ease of reentry from the occupant's location, and other
relevant factors.
MISSOURI V. MCNEELY
I’ve come for your blood
Facts
• McNeely stopped for speeding and crossing center line.
Officer notices bloodshot eyes, slurred speech, and the
smell of alcohol on his breath. He performed poorly on a
battery of field-sobriety tests and declined to use a
portable breath-test device.
Facts
• During transport McNeely indicated that he would again
refuse to provide a breath sample, the officer then took
McNeely to a nearby hospital for blood testing.
• The officer did not attempt to secure a warrant.
• Upon arrival at the hospital, the officer asked McNeely
whether he would consent to a blood test. The officer
explained to McNeely that under state law refusal to
submit voluntarily to the test would lead to the immediate
revocation of his driver’s license for one year and could
be used against him in a future prosecution. McNeely
nonetheless refused.
• The officer then directed a hospital lab technician to take
a blood sample.
Issue
• Whether the natural metabolization of alcohol in the
bloodstream presents a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement
for nonconsensual blood testing in all drunk-driving
cases?
Holding
• We conclude that it does not, and we hold, consistent with
general Fourth Amendment principles, that exigency in
this context must be determined case by case based on
the totality of the circumstances.
• We hold that in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant.
Reasoning
• Generally a warrantless search of the person is
reasonable only if it falls within a recognized exception.
The seizure here implicates an individual’s “most personal
and deep-rooted expectations of privacy”. Yet the Court
has recognized that in some circumstances law
enforcement officers may conduct a search without a
warrant to prevent the imminent destruction of evidence.
Reasoning
• To determine whether a law enforcement officer faced an
emergency that justified acting without a warrant, this
Court looks to the totality of circumstances. Yes, the
body does metabolize evidence but that is not enough to
force the law to abandon the TOC test. There is always
some delay associated with transport for testing. Officers
could start the warrant process while another officer
transported the suspect.
Reasoning
• A per se exception also ignores the advances in obtaining
warrants remotely. Examples, telephonic or radio
communication, electronic communication such as e-mail,
and video conferencing. Jurisdictions have also
streamlined the warrant process, such as by using
standard-form warrant applications.
Reasoning
• The Court is not going to give a list of factors but the
opinion noted that the metabolization of alcohol in the
bloodstream and the ensuing loss of evidence are among
the factors that must be considered in deciding whether a
warrant is required.
• No doubt, given the large number of arrests for this
offense in different jurisdictions nationwide, cases will
arise when anticipated delays in obtaining a warrant will
justify a blood test without judicial authorization….
Questions
• Thank you