The Supreme Court on Wednesday will be asked to decide whether dogs, as trusted as they are by their human companions, are reliable when used to detect drugs in automobiles.
But the court’s answer to the question could have an impact not just on dogs but on much higher-tech investigative techniques, according to a brief filed by the Electronic Privacy Information Center (EPIC.)
In Florida v. Harris, the Supreme Court of Florida found that the state must provide independent evidence of a dog’s reliability if it wants to use the animal’s alert to establish probable cause to search a car.
The EPIC brief, authored by executive director Marc Rotenberg, asks the court to imagine that the policeman in Harris did not rely on a dog for evidence of drugs, but instead, used a body scanner or a device that can detect chemical compounds or intercept private communications.
Rotenberg calls these techniques “electronic dog sniffs” because, like canines, they are used to detect contraband. He worries that a rejection of the Harris rule could strip these tools of Fourth Amendment safeguards.
In Illinois v. Caballes, the court found that canine sniffs of vehicles during routine traffic stops are not searches under the Fourth Amendment. It reasoned that dogs only alert to the presence of drugs, and people have no reasonable expectation of privacy for unlawful activity.
In dissent, Justice David Souter worried that a canine might mistakenly alert cops to drugs when there are none, which would unlawfully trigger a search of a car. “The infallible dog,” he wrote in his Caballes dissent, is “a creature of legal fiction.”
The Florida Supreme Court had those concerns about Aldo, the canine in 2011′s Harris. There, when a police officer stopped Clayton Harris for driving with an expired tag, he noticed that the man was shaking, breathing rapidly and had an open beer can in his truck. The cop got Aldo to sniff the outside of the vehicle, and the dog indicated that he smelled drugs. The officer then searched inside the truck and found chemicals used to manufacture methamphetamine.
Though the state presented evidence about Aldo’s training and experience, the Florida high court found it insufficient to establish the dog’s reliability. It ruled that the trial court should have suppressed the drugs as evidence, and it developed criteria that prosecutors must show in canine cases. These include evidence of the officer’s experience in handling the dog, and information about the animal’s training, certification and field performance records.
The EPIC brief argues that new investigative technology is similarly fallible, so courts must fully vet it too. While attorneys do vouch for the reliability of these techniques, Rotenberg said it is easy for judges to feel “overwhelmed by the science” and fall prey to the concept of the “perfect search.”
“It’s not like CSI: Miami,” Rotenberg said. “In the real world, there are a lot of issues surrounding some of the new investigative methods.”
He points to forensic science. Though the public may laud the field, Rotenberg wrote that large research groups have criticized it for its “lack of clear standards and credible research to support technical conclusions.”
A National Academy of Sciences report that Rotenberg cites warns that officials might give “undue weight” to forensic evidence gained from imperfect testing methods. The organization recommended stricter guidelines for the field because variations in oversight, staffing and accreditation at labs can make it hard to gauge reliability.
Rotenberg wrote that similar guidelines are needed for “electronic dog sniffs” because they can engender false positives, which could wrongly support a finding of probable cause for a warrantless search. Incorrect results from airport body scanners can lead to invasive frisking, he argued. Technology that recognizes the molecular components of chemical compounds may work in labs, but could be subject to human error and other challenges when used in the field, he said.
“As these new techniques are deployed, it’s vital for the courts to discuss the reliability and invasiveness of the method,” said Rotenberg, who teaches information privacy law at the Georgetown University Law Center and has testified before Congress and the 9-11 Commission on civil-liberties issues.
EPIC has submitted more than 20 amicus briefs to the Court over the years, including one in Clapper v. Amnesty International USA, which the Court hears on Monday. In that case, Rotenberg wrote in support of groups that seek standing to sue the government regarding the legality of a global wiretapping program.
Jamie Schuman is a freelance writer and third-year student at The George Washington University Law School.