Supreme Court Decides Florida v. Harris: No Bright Line Rules for Probable Cause, But Perhaps A Presumption or Two

The Supreme Court decided Florida v. Harris today, the Fourth Amendment case on when a drug-sniffing dog’s alert constitutes probable cause. In a 9-0 decision by Justice Kagan, the Supreme Court overturned the Florida Supreme Court standard that had required production of records of the dog’s reliability in the field in order to determine probable cause. Today’s opinion emphasizes that the probable cause inquiry is a practical common-sense judgment based on a totality of the circumstances that cannot follow any specific rules. As a result, the Florida Supreme Court’s specific rules are improper. So far, nothing surprising. The problem is that dog-sniffing cases are very common, and yet judges are not well-suited to know when a dog is sufficiently reliable. So how should judges apply this “totality of the circumstances” standard? Here’s the key language from Harris:

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. The same is true, 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.

Defense attorneys can then rebut the presumption with specific evidence:

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.

Perhaps I am misreading this, but at first blush it seems that the Court has said there is no particular test and then created a particular test: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent[] and successful[]” completion of a training program creates a presumption of probable cause that then can be rebutted by defense counsel. Granted, the Court does say that certification or training can create a presumption of probable cause, rather than that it does. But I’m not sure there is a difference. The state has the burden of proving probable cause. If a fact “can” create a rebuttable presumption that the burden is satisfied, does that mean that judges have the discretion to say that the fact creates a presumption or free to say it doesn’t create that presumption? Or does it simply mean that the fact does create a presumption that the defense can then rebut? Imagine a case in which the dog was certified by a “bona fide” K-9 school but there is no other evidence of reliability. The trial judge concludes that this wasn’t enough. If the defense did not put on specific evidence of unreliability, should the court of appeals overturn this decision because the trial court failed to apply the presumption? I strongly suspect that lower courts will interpret that part of Harris as imposing the presumption when there is “bona fide” certification or “recent and successful” training, but I’m not entirely sure if that’s the right reading of the case. I’d be interested to know what readers think of this.

Anyway, I may have more to say about the case — as well as thoughts on today’s Fourth Amendment decision in Bailey v. United States — but I have a class coming up shortly so I’ll have to save the rest for later.