After whining for months about how I don't have anything to
write about, my cup runneth over: oral
arguments in four key SCOTUS cases last week, plus two decisions in criminal
cases from the gang down in Columbus.
Plus, two more key cases
slated for oral argument before the US Supreme Court on Tuesday, one involving
a double jeopardy issue and the other the question of what constitutes
withdrawal from a conspiracy.
I could hire extra staff and go to two posts a day to handle
all this, but that's not going to happen, so here's what we'll do. We'll cover the oral argument in the SCOTUS
dog-alert case here, and cover the two Ohio Supreme Court decisions on
Wednesday. On Thursday, we'll talk about
the oral argument in Chaidez v. US, involving
the issue of the retroactivity of Padilla
v. Kentucky, and on Friday we'll tackle Bailey
v. US, which raises the question of whether police can detain an occupant
of a home being searched pursuant to a warrant when the person isn't really occupying
the home at the time he's seized.
week I wrote about Florida v.
Jardines, which involved the issue of whether a dog sniff at the door of a
house constituted a search, and the news was fairly good; Scalia in particular
seemed receptive to the defendant's argument.
Not so good news with Harris. Harris also
involved a dog sniff, but of a car. As I explained
back in April when the Court took the case, the Florida Supreme Court had held
that there wasn't sufficient evidence that the dog was trained to detect the
odor of narcotics to allow an alert to establish probable cause.
Greg Garre, who'd argued on behalf of the state in Jardines, also argued Harris, prompting Scalia to inquire,
"Are you for or against the dog this time?"
With the amenities out of the way, the participants got down to the
central issue: what would constitute sufficient evidence? It was relatively clear that everybody on the
Court was having trouble with the rigidity of the Florida Supreme Court's holding: not only did the dog have to be certified and
trained, but the judge "must" find that performance records - how often the dog
falsely alerted, for example - demonstrate that the dog is sufficiently qualified. As Scalia noted, if a doctor's testimony was
intended to establish probable cause, a court "would not go back and examine
how well that doctor was trained at Harvard Medical School and, you know, what
classes he took and so forth."
On the other hand, several of the liberal justices weren't
overly enamored of Garre's proposal, that certification would be sufficient;
Sotomayor asked him to cite an example of a case in which the Court had adopted
"an absolute flat rule like the one you're proposing? Where else have we said
that one thing alone establishes probable cause?" In my earlier post, I'd said, "Expect the
NACDL to come in with an amicus brief here presenting studies... showing
problems with false alerts, handler cuing, residual odors, and the like," and
they did; Sotomayor was particularly troubled by an Australian study showing
accurate alerts in only 12% of cases.
That's unlikely to carry the day, though; not even the
liberals expressed any enthusiasm micro-managing the issue of dog
qualifications, especially because, as Scalia noted, there's not much incentive
for the cops to fudge the issue: a dog
who gives lots of false alerts simply means a lot of time spent on searches
which come up with nothing. Expect the
Court to retreat a "totality of the circumstances" test, where certification
goes a long way toward qualifying. That could
be a good thing in itself; many states don't have any standards, and adoption
of that sort of test could impel them to come up with one.
In the courts of appeals...
Continue reading "Case Update" »