Some thoughts on yesterday’s unanimous ruling in Florida v. Harris, _ U.S. _ (2013):
- Any lingering financial incentive for police to record field data on drug-dogs is extinguished. Preserved evidence of false positives could be used by a claimant to argue against the reliability of a particular drug-dog. While the evidentiary weight of field data on false positives is greatly diminished by yesterday’s ruling, preserving such evidence nonetheless creates an unnecessary risk of diminishing opportunities for police departments to realize windfall profits stemming from seizures conducted incident to alleged drug-dog alerts. Specifically, it risks that judge or jury would nonetheless find troubling a particular drug-dog’s field record of purportedly alerting where no drugs are to be found. The easiest way to prevent the appearance of such records is to simply not record the data.
- Severing incentives to keep field records increases incentives for police to employ drug-dogs that are certified but give false positive alerts in the field.1 Current asset forfeiture laws largely permit police to self-appropriate by acquiring substantial portions of the proceeds of property seizures if the property is ultimately forfeited.2 The more drug-dogs alert, the more opportunities are available for big paydays.
- Given the absence of agreed-upon standards for the certification of a drug-dog (other than an award of certification) and the incentives for false positives, police have an increased incentive to acquire certification from companies that will certify drug-dogs who can find drugs but who also give false positives (or self-certify). The market will of course correct for this phenomenon. Moreover, scrutiny over drug-dogs who give a surfeit of false positives will be reduced.
- The ruling likely reduces meaningful access to the courts in civil forfeiture proceedings involving positive drug-dog alerts. The opinion seems to presume the existence of defense counsel who possess the capacity to present competent rebuttals. Unfortunately, claimants fighting civil asset forfeitures generally need to hire their own counsel or do it themselves. There are fee-shifting provisions awarding attorney fees to claimants who substantially prevail. However, it just became more difficult to win these cases–reducing the incentives for private attorneys to take the cases on the hopes of winning awards of attorney fees. It is also predictable that hiring an attorney for such a claim just got more expensive. That likely means a lot of folks trying to navigate the process as pro se claimants or, more likely, more people who simply accede to the state forfeiting their property because the police want the property and they say a dog alerted to it.
- It seems more likely that Florida v. Jardines became an implied consent/curtilage issue as Professor Orin Kerr suggested last June:
If the front porch and space next to Jardines’s door was curtilage, then, the question becomes whether Jardines had impliedly consented to the officers’ visit. And this raises a classic criminal law puzzle: How do you construe the scope of implied consent, and what level of generality do you choose? If you construe the scope of consent at a high level of generality, you could say that homeowners impliedly consent to visits. This was a visit, so there was implied consent to go up to the door and knock. (The officer who was not the dog trainer testified that he approached the house with the intent to knock and talk, but it’s pretty obvious that the officers’ primary goal was to have Franky do his thing.) On the other hand, if you construe the scope of consent at a specific level of generality, you could say that homeowners do not impliedly consent. No one in their right mind would consent to have drug-detection dogs sent to their home to sniff to see if there are drugs inside. So from the more specific level of generality, there is no consent. The officers could approach the home and knock on the door, but they could not bring the trained dog to sniff for narcotics.Orin Kerr, A Preliminary Thought on Florida v. Jardines, Volokh Conspiracy, 21 Jun. 2012.
In sum, Florida v. Harris looks like very bad news for anyone concerned with civil asset forfeiture reform and anyone worried about how these laws corrupt law enforcement and/or prey on the poor.
- Where retention and production of drug-dog field records are not otherwise required by statute or by interpretations of parallel state constitutional provisions. Search and Seizure protections in Florida are limited to the interpretations of the U.S. Supreme Court. See FLA. CONST. art. I, § 12. ↩
- Perhaps feeling fanciful for police as platonic guardians, the unanimous opinion in Florida v. Harris, _ U.S. _ (2013) seems willfully blind to the existence of such incentives–let alone their corrosive force. For a more detailed analysis of the incentives for false positives, see Leslie A. Shoebotham, Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs, 14 Loyola Journal of Public Interest Law 251 (2013). For a more detailed discussion of how forfeitures compel police priorities, see Tomislav V. Kovandzic and John L. Worrall, Is Policing for Profit? Answers from asset forfeiture, Criminology & Public Policy, 7: 219–244 (2008). ↩