Passing the smell test in the Supremes
The Supreme Court has issued an opinion in Florida v. Harris.
JUSTICE KAGAN delivered the opinion of the Court.
In this case, we consider how a court should determine if the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every casepresent an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. See 71 So. 3d 756, 775 (2011). We think that demand inconsistent with the “flexible, common-sense standard” of probable cause. Illinois v. Gates, 462 U. S. 213, 239 (1983).
The court sneezed when it came application of inflexible evidence standards for when a dog alert provides probable cause for a search, “A sniff is up to snuff when it meets that test.” Slip op. at 9.
I predict, before the next three decades are out, that we will see an opinion upholding a search based upon a police officer’s intuition and judgment as the basis for searching a car, because it is consistent with the flexible, common-sense standard of probable cause. Warrants are just a silly, 18th-century concept not suited to the modern world. Liberty is but a small price to pay to defeat the evil drug menace.
I noticed at Footnote 2 that Justice Kagan is a fan of military administrative law:
2. “See U. S. Dept. of Army, Military Working Dog Program 30 (Pamphlet 190–12, 1993) (“The odor of a substance may be present in enough concentration to cause the dog to respond even after the substance has been removed. Therefore, when a detector dog responds and no drug or explosive is found, do not assume the dog has made an error”);”
Reminds me of a story I heard at JAG Camp where a working dog during a health and welfare inspection signaled on a box containing a photograph of a small group of Soldier’s in Garmisch smoking some of Amsterdam’s finest. I thought it was some sort of psychic dog or a dog with x-ray vision that could see two-dimensional figures, but apparently the simple explanation was that the Soldiers were toking up while looking at the pictures.