PARIENTE, J.
When will a drug-detection dog`s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.
The issue of when a dog`s alert provides probable cause for a search hinges on the dog`s reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog`s reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer`s belief—in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer`s belief in the dog`s reliability as a predicate for determining probable cause.
The appellate courts addressing the issue in this state have differed on what evidence the State must present to meet its burden. The decision of the First District Court of Appeal in
The reliability of a dog as a detector of illegal substances is subject to a totality of the circumstances analysis. Thus, the trial court must be presented with the evidence necessary to make an adequate determination as to the dog`s reliability. For the reasons explained below, we hold that 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.
Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and 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. To adopt the contrary view that the burden is on the defendant to present evidence of the factors other than certification and training in order to demonstrate that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. In addition, since all of the records and evidence are in the possession of the State, to shift the burden to the defendant to produce evidence of the dog`s unreliability is unwarranted and unduly burdensome. Accordingly, we quash
In July 2006, the State charged Clayton Harris with possession of the listed chemical pseudoephedrine with intent to use it to manufacture methamphetamine, more commonly known as meth, in violation of section 893.149(1)(a), Florida Statutes (2006). Harris subsequently moved to suppress seized evidence, including the pseudoephedrine, arguing that it was found pursuant to an illegal search of his truck.
At the hearing on the motion to suppress, the evidence established that on June 24, 2006, Liberty County Sheriff`s Canine Officer William Wheetley and his drug-detection dog, Aldo, were on patrol. Officer Wheetley conducted a traffic stop of Harris`s truck after confirming that Harris`s tag was expired. Upon approaching the truck, Officer Wheetley noticed that Harris was shaking, breathing rapidly, and could not sit still. Officer Wheetley also noticed an open beer can in the cup holder. When Officer Wheetley asked for consent to search the truck, Harris refused. Officer Wheetley then deployed Aldo. Upon conducting a "free air sniff" of the exterior of the truck, Aldo alerted to the door handle of the driver`s side.
Underneath the driver`s seat, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag wrapped in a shirt. On the passenger`s side, Officer Wheetley discovered eight boxes of matches containing a total of 8000 matches. Officer Wheetley then placed Harris under arrest. A subsequent search of a toolbox on the passenger side revealed muriatic acid. Officer Wheetley testified that these chemicals are precursors of methamphetamine. After being read his
As of the day that Officer Wheetley searched Harris`s truck, Officer Wheetley had been a law enforcement officer for three years and had been a canine handler since 2004. In January 2004, Aldo completed a 120-hour drug detection training course at the Apopka Police Department with his handler at the time, Deputy Sherriff William Morris. In February 2004, Aldo was certified with Morris as a drug-detection dog by Drug Beat K-9 Certifications. Aldo is trained and certified to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine. Aldo is not trained to detect alcohol or pseudoephedrine. Although Officer Wheetley testified that pseudoephedrine is a precursor of meth, there was no testimony on whether a dog trained to detect and alert to meth would also detect and alert to pseudoephedrine.
In July 2005, Aldo and Officer Wheetley became partners. In February 2006, they completed a forty-hour training seminar with the Dothan Police Department. Officer Wheetley testified that he and Aldo complete this seminar annually. Additionally, Officer Wheetley trains Aldo four hours per week in detecting drugs in vehicles, buildings, and warehouses. For example, Officer Wheetley may take Aldo to a wrecker yard and plant drugs in six to eight out of ten vehicles. Officer Wheetley then takes Aldo and performs a "W pattern, up, down, up, down."
Aldo must alert to the vehicles with drugs, and he is rewarded for an accurate alert. Officer Wheetley described Aldo`s success rate during training as "really good." Aldo`s training records, which Officer Wheetley began keeping in November 2005, were introduced in evidence. These records reveal that on a performance level of either satisfactory or unsatisfactory, Aldo performed satisfactory 100% of the time. However, Officer Wheetley did not explain whether a satisfactory performance includes any alerts to vehicles where drugs were not placed.
Officer Wheetley also testified that in Florida a single-purpose dog, such as one trained only to detect drugs, is not required by law to carry certification. These dogs are required to show proficiency only in locating drugs. By contrast, a dual-purpose dog, such as one trained in apprehension and drug detection, must carry Florida Department of Law Enforcement (FDLE) certification. Florida does not have a set standard for certification for single-purpose drug dogs, such as Aldo.
With regard to Aldo`s performance in the field, Officer Wheetley testified that he deploys Aldo approximately five times per month. Officer Wheetley maintains records of Aldo`s field performance only when Officer Wheetley makes an arrest. Officer Wheetley testified that he does not keep records of Aldo`s alerts in the field when no contraband is found; he documents only Aldo`s successes. These records were neither produced prior to the hearing nor introduced at the hearing.
Harris introduced evidence of a specific instance of Aldo`s field performance to support his position that Aldo is unreliable involving this same vehicle and same defendant. About two months after the June 24 stop, Officer Wheetley stopped Harris again for a traffic infraction.
Officer Wheetley testified to the issue of residual odors. According to Officer Wheetley, Aldo can pick up residual odors of illegal drugs on an object when, for example, someone has the odor on his or her hand and touches a door handle. When asked how long a residual odor can remain on the handle, Officer Wheetley stated that he was not qualified to answer that question.
Regarding the alert in this case, Officer Wheetley testified that Aldo presumably alerted to residual odor of meth on the door handle, indicating that Officer Wheetley did not believe that Aldo alerted to any of the substances found in the vehicle. Officer Wheetley testified on cross-examination:
After both parties rested, the State argued that Officer Wheetley had probable cause based on the totality of the circumstances, which included the expired tag, open container, nervousness, and an alert by a trained and certified drug-detection dog. In challenging the issue of probable cause, the defense argued that the State failed to establish Aldo`s reliability. According to the defense, any dog can be trained, but what matters most is that the dog obtains positive results in the field. The defense focused on the fact that on two occasions (once on June 24, the stop at issue, and once after the stop at issue) Aldo alerted to Harris`s truck and no drugs were found that Aldo was trained to detect.
In an oral ruling, the trial court denied the motion to suppress, found that there was probable cause to search Harris`s truck, and admitted the physical evidence seized. The trial court did not make a finding as to the dog`s reliability or any other factual findings.
Harris then entered a plea of no contest, reserving the right to appeal the denial of the motion. He was sentenced to twenty-four months` incarceration and five years of probation. On appeal, the First District affirmed. Harris subsequently petitioned this Court for discretionary review, which we accepted based on express and direct conflict between the First and Second Districts.
The question presented to the First District—and now to this Court— concerns the evidence that the State must introduce to establish that probable cause existed for the warrantless search of a vehicle based on a drug-detection dog`s alert to the vehicle. To clarify the conflict, we will outline the approaches adopted by the First, Second, Fourth, and Fifth District Courts of Appeal, which have all addressed this issue.
The First, Fourth, and Fifth Districts agree that the State can establish probable cause to search a vehicle by demonstrating that a dog is properly trained and certified to detect illegal drugs.
In
In
The Second District has reached the opposite conclusion on similar facts. According to the Second District, in
The Second District also discussed the issue of residual odors:
In this regard, the Second District highlighted that "conditioning and certification programs vary widely in their methods, elements, and tolerances of failure."
In
As explained in our analysis below, we agree with the Second District`s bottom-line conclusion that the State cannot establish probable cause by introducing evidence only that the dog was trained and certified. We disapprove of the conclusions of the First, Fourth, and Fifth Districts that the State can meet its burden of establishing probable cause by presenting evidence that the dog is trained and certified to detect illegal drugs and then shifting the burden to the defendant to counter this evidence.
As previously stated, the question presented concerns the showing that the State must make to establish probable cause for a warrantless search of a vehicle based on a drug-detection dog`s alert to the vehicle. This issue involves a trial court`s determination of the legal issue of probable cause, which we review de novo.
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV;
One such exception to the warrant requirement is the "automobile exception," first established by the United States Supreme Court in
The United States Supreme Court has explained that the probable cause standard "depends on the totality of the circumstances."
This Court, obliged to follow precedent from the United States Supreme Court, has explained:
When it comes to the use of drug-detection dogs, the United States Supreme Court has explained that "the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view,`—during a lawful traffic stop, generally does not implicate legitimate privacy interests."
Because the dog cannot be cross-examined like a police officer whose observations at the scene may provide the basis for probable cause, the trial court must be able to assess the dog`s reliability by evaluating the dog`s training, certification, and performance, as well as the training and experience of the dog`s handler. Similar to situations where probable cause to search is based on the information provided by informants, the trial court must be able to evaluate the reliability of the dog based on a totality of circumstances.
Like the informant whose information forms the basis for probable cause, where the dog`s alert is the lynchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists. If a dog is not a reliable detector of drugs, the dog`s alert in a particular case, by itself, does not indicate that drugs are probably present in the vehicle. In fact, if the dog`s ability to alert to the presence of illegal substances in the vehicle is questionable, the danger is that individuals will be subjected to searches of their vehicles and their persons without probable cause. Conversely, if a dog is a reliable detector of drugs, the dog`s alert in a particular case can indicate that drugs are probably present in the vehicle. In those circumstances, the drug-detection dog`s alert will indicate to the officer that there is a "fair probability that contraband" will be found.
We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. In contrast to dual-purpose drug-detection dogs, which are apparently certified by FDLE, no such required certification exists in this state for dogs like Aldo, who is a single-purpose drug-detection dog.
In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. "[S]imply characterizing a dog as "trained` and "certified` imparts scant information about what the dog has been conditioned to do or not to do, or how successfully."
One commentator has described the "`mythic infallibility` of the dog`s nose":
Andrew E. Taslitz,
Second, and related to the first concern, any presumption of reliability based only on the fact that the dog has been trained and certified does not take into account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors. As the Second District aptly observed, "[a]n officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog`s alert will yield contraband. Of course, mere suspicion cannot justify a search."
"A false [alert] is an alert by the dog in the absence of the substance it is trained to detect." Myers,
Coupled with the concern for false alerts is the potential for handler error and handler cuing. "Handler error affects the accuracy of a dog. The relationship between a dog and its handler is the most important element in dog sniffing, providing unlimited opportunities for the handler to influence the dog`s behavior."
A related problem is the possibility of handler cuing. "Even the best of dogs, with the best-intentioned handler, can respond to subconscious cuing from the handler. If the handler believes that contraband is present, they may unwittingly cue the dog to alert regardless of the actual presence or absence of any contraband. Finally, some handlers may consciously cue their dog to alert to ratify a search they already want to conduct." Myers,
An alert to a residual odor is different from a false alert, although both types of alerts may result in subjecting the person and vehicle to an invasive search when no contraband is actually present. Because of the sensitivity (or hypersensitivity) of a dog`s nose, a dog may alert to a residual odor, which may not indicate the presence of drugs in the vehicle at the time of the sniff:
Myers,
Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog`s reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog`s performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court`s evaluation of the dog`s reliability under a totality of the circumstances analysis.
The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog`s alert indicates a fair probability that there are drugs presently inside the vehicle.
In any event, the record in this case does not contain any testimony as to whether dogs can be trained to distinguish between residual odors and drugs and, further, there were no field records or testimony presented in this case in order to allow for a careful examination of the significance of field performance. Officer Wheetley was unable to testify as to a complete picture of Aldo`s performance in the field. In future cases, the State can explain the significance of the percentage of unverified alerts in the field. The trial court would then be able to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.
Finally, to adopt the view of the First, Fourth, and Fifth Districts would be to place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability—evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case.
Some courts have adopted a similar totality of the circumstances approach to determining a dog`s reliability. For example, in
Further, other courts have endorsed the trial court`s consideration of multiple factors, with emphasis on the number of "false alerts" by the dog. For instance, in
In Florida, the Third District Court of Appeal has approved a similar analysis in a case involving the search of luggage:
Additionally, in
For the above reasons, we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State`s presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog`s performance in the field, including the dog`s successes (alerts where contraband that the dog was trained to detect was found) and failures ("unverified" alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog`s ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog`s reliability.
Contrary to the dissent`s assertion that we "impose[] evidentiary requirements which can readily be employed to ensure that the police rely on drug detection dogs only when the dogs are shown to be virtually infallible," dissenting op. at 42, we do not hold in this case that the dog must be shown to be "virtually infallible." Just as it would be entirely relevant to know how many times an informant`s tip resulted in contraband being discovered, the reason that the State should keep records of the dog`s performance both in training and in the field is so that the trial court may adequately evaluate the reasonableness of the officer`s belief in the dog`s reliability under the totality of the circumstances. Because the State bears the burden of establishing probable cause, if the courts are to make determinations of probable cause based on the alerts of dogs, who can neither be cross-examined nor otherwise independently assessed as to their reliability, it is appropriate to place the burden on the State to ensure uniformity in the way dogs are evaluated for reliability of their alerts. Nothing less than the sanctity of our citizens` constitutional rights to be secure from unreasonable searches and seizures in their homes, their vehicles, and their persons is at stake.
In applying these standards to Harris`s case, we hold that the trial court erred in concluding that the State presented sufficient evidence to establish probable cause to conduct a warrantless search of Harris`s truck. We defer to a trial court`s findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court`s application of the law to the historical facts.
The State presented the following evidence: Aldo had been trained to detect drugs since January 2004 and certified to detect drugs since February 2004; Officer Wheetley trains Aldo for approximately four hours per week, deploys Aldo approximately five times per month, and attends a forty-hour annual training seminar; and Aldo`s success rate during training is "really good." Aldo`s weekly training records reveal that from November 2005 to June 2006, Aldo performed satisfactorily 100% of the time. However, there was no testimony as to whether a satisfactory performance includes any false alerts. The record is also scarce on the details of Aldo`s training, including whether the trainer was aware of the locations of the drugs
The State also did not introduce Aldo`s field performance records so as to allow an analysis of the significance of the alerts where no contraband was found. In fact, Officer Wheetley testified that he does not keep records of Aldo`s unverified alerts in the field; he documents only Aldo`s successes.
The State asserts that the only relevant records are the training records—not field records—since there is no such thing as a false alert in the field because a dog alerts to both actual drugs and residual odors. Thus, the State argues, when a dog alerts in the field and no contraband is found, there is no way to determine whether the dog was alerting to a residual odor or whether the dog falsely alerted. This is also of concern when probable cause for the search hinges on the dog`s demonstrated reliability and thus the probability that the dog`s alert indicates that contraband was present in the vehicle at the time of the alert. Because the State did not introduce field performance records, the State was not able to explain the significance of any unverified alerts in the field.
Further, the State failed to present any evidence regarding the criteria necessary for Aldo to obtain certification through Drug Beat K-9 certifications. This case is unlike
In this case, there are several other factors that call into question Aldo`s reliability. First, the State failed to present any testimony regarding Aldo`s ability to detect residual odors. When asked how long a residual odor can remain on the driver`s side door handle, Officer Wheetley stated that he was not qualified to answer that question. While such testimony is not required, without this information, it is difficult to determine how this factor should apply, if at all. For example, in
Second, the State has failed to explain why an alert to a residual odor on the door handle would give rise to probable cause in this case. Officer Wheetley testified that Aldo alerted to the door handle and that, in his experience, this meant that somebody had touched or smoked narcotics and then transferred the odor to the door handle. Officer Wheetley further indicated that Aldo`s alert led him to believe that the odor of narcotics was present on the door handle. However, neither Officer Wheetley nor the State has explained in this case why evidence of residual odor of narcotics on the vehicle`s door handle gave rise to probable cause that there were drugs actually present in the vehicle at the time of the alert. Aldo`s alert to the door handle in this case, standing alone, provides no basis for an objective probable cause determination that drugs were present inside the vehicle.
Thus, we conclude that the State did not meet its burden in demonstrating that Officer Wheetley had a reasonable basis for believing that Aldo was reliable at the time of the search and, thus, that Aldo`s alert, the lynchpin of the probable cause analysis in this case, indicated a fair probability that drugs would be found in the vehicle. Although the trial court found probable cause, the trial court did not make a specific finding as to Aldo`s reliability. The failure to make a finding on Aldo`s reliability makes it difficult to determine how much weight to give Aldo`s alert in the probable cause analysis.
Although not part of the determination of whether probable cause to conduct the search existed at that time, two additional facts in this case are illustrative of why it is important to engage in an inquiry of a dog`s reliability, including an evaluation of the dog`s performance in the field. First, as to the search in question, the police officer did not discover any drugs that Aldo was trained to detect. In other words, there is a chance that this case may have involved a false alert. Second, Harris introduced evidence in this case that Aldo alerted to the same door handle on the same vehicle subsequent to this arrest and no drugs were found.
The State argues that the alert at issue in this case and the subsequent alert were not false alerts because Aldo was alerting to residual odor on the door handle; Officer Wheetley also testified that when a dog alerts to a door handle it usually means that residual odor was transferred to the door handle by someone who had handled drugs. However, an alert to residual odor on the door handle, by itself, indicates only that someone who has come into contact with drugs touched the door handle at some point.
In sum, we conclude that the State has failed to meet its burden of establishing probable cause. In the absence of a reliable alert, the other factors considered in the totality of circumstances analysis—Harris`s expired tag, Harris`s shaking, breathing rapidly, and inability to sit still, and Harris`s open beer can—do not rise to the level of probable cause that there were illegal drugs inside the vehicle. Accordingly, the search of the vehicle violated the Fourth Amendment`s prohibition on unreasonable searches and seizures.
For the above reasons, we quash Harris and disapprove
It is so ordered.
LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., dissents with an opinion. POLSTON, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
CANADY, C.J., dissenting.
Because the majority imposes an evidentiary burden on the State which is based on a misconception of the federal constitutional requirement for probable cause, I dissent. I would affirm the decision of the First District Court of Appeal on review; approve
In brief, the elaborate and inflexible evidentiary requirements the majority adopts are inconsistent with the proper understanding of probable cause as a "`practical, non-technical conception` that deals with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.`"
The process of determining whether a search was reasonable because it is based on probable cause "does not deal with hard certainties, but with probabilities."
The record shows that the searching officer had an objectively reasonable basis for crediting the dog`s alert. The State presented uncontroverted evidence that Aldo had been trained to detect drugs since January 2004 and certified to detect drugs since February 2004. Officer Wheetley testified that he trained Aldo approximately four hours per week, deployed Aldo approximately five times per month, and attended a forty-hour annual training seminar. Wheetley described Aldo`s success rate during training as "really good." Aldo`s weekly training records reveal that from the November 2005 to June 2006, Aldo performed satisfactorily 100 percent of the time. Harris failed to present any evidence challenging Aldo`s training or certification. Based on this record of historical facts, the majority`s conclusion that the officer acted unconstitutionally is totally unwarranted.
Since there was no violation of the Fourth Amendment, the decision of the First District should be affirmed.