Legal Update

1. Legal Update “Hound Dogs, Seizures, DNA and Blood” or “Saturday Night in Muhlenburg County”

2. A Good Year!

3. For the Florida Folks

4. Road Map • Florida v. Clayton Harris • Florida v. Jardines • Maryland v. King • Bailey v. US • Missouri v. Mcneely

5. Florida v. Clayton Harris: “Canine Searches on “Rocky Ground?”

6. 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

7. 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.

8. 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).

9. 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

10. Seminal Canine Sniff Case Law • US v Place (1983) • Seizure of luggage based on RS and subjected to a canine sniff-OK. • 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.

11. 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

12. 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.

14. 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

15. 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

17. 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. • Wheetleyask 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.

18. 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.

19. Facts 3 • Harris moved to suppress the evidence asserting that the alert by Aldo did not amount to probable cause. • Wheetleytestified about the training that both he and Aldo had received. • Wheetleywas 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. • Wheetleyadmitted on cross examination that he did not keep full field performance records for Aldo, rather he only recorded alerts that culminating in arrests.

20. 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 “mustpresent 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).

21. 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?

22. 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.

23. 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.”

24. 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.

25. 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.

26. Reasoning • Better evidence of a dog’s reliability comes from controlled testing environments like training and certification programs

27. 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”.

28. 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” ?

29. Vote Constitutional 9-0 • Kagan • Ginsburg • Breyer • Sotomayor • Scalia • Kennedy • Roberts • Alito • Thomas

30. Florida v. Jardines and Canine sniffs of the Home: “Frank[y] I don't know what I'm gonna find”

32. Grow Houses • Appear to be increasing • Quality product demands high price • Improvement in hydroponics • Housing bubble? • Dangerous-fire/explosion. • Crime generator?

33. Grow Houses • Appear to be increasing • Quality product demands high price • Improvement in hydroponics • Housing bubble? • Dangerous-fire/explosion. • Crime generator?

34. 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.

35. Home Sweet Home!

36. 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).

37. 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.

38. 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 reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.

39. 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-Frankywent 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.

40. 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?

41. 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.

42. 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 Amendmentpurposes.”

43. 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.”

44. 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”.

45. 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.

46. Vote Unconstitutional Constitutional Roberts Alito Kennedy Breyer • Kagan • Ginsburg • Sotomayor • Scalia • Thomas

47. Maryland v. King DNA and not for Maury Povich

48. 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.

49. 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.

50. 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.