The U.S. Supreme Court has just ruled in favor of a police dog against liberty interests; they unanimously overruled the Florida Supreme Court [not an excessively pro-defendant body, by the way!], supporting instead the work of a drug-sniffing German shepherd named Aldo, ruling that police do not have to extensively document a dog’s field experience to justify relying on the animal to search someone’s vehicle. [Florida v. Harris, 11-817, decided 2/19/2013.] Let me show you the danger of heeding what the cops say about their police dogs, and how irresponsible the supreme court is [again] in this pro-government ruling.
There was this police dog. The courts were repeatedly told by its handlers that he was a wonderful and reliable drug sniffing canine, and he sported a badge. He had been in loyal and “effective” service for a few years, with a reputation based on cops’ representations spreading far and wide. We’ll call him “Fido,” which is not his real name, to protect the innocent.
Real Stories of the CHP was filming on a stretch of an interstate highway in a jurisdiction in which I was working, and they got permission to accompany the cops on a highway interdiction drug bust. The cops needed them for publicity; they needed the cops for ratings; Lady Justice needed honesty, and she was almost disappointed.
The cops started patrolling, in two cars, with cameraman and reporter riding in one, and they eventually pulled over some hapless soul for speeding. What follows was on the videotape. The cops surrounded him and started the stock “where are you coming from; where are you going; do you have any guns, money, or drugs in the car,” and so forth that has nothing to do with speeding. After holding the motorist there for an extended period for a non-speeding grilling [read “prolonged detention”], the cops asked if they could search his car. [Editor’s Note: the answer should ALWAYS be “no.”] He reluctantly said ok.
They opened the trunk and the handler cop commanded the dutiful Fido to jump in. Another command was to search, but the well-trained Fido wasn’t quite sure what he was talking about. The one cop kept banging on the insides of the trunk while the other one talked to the reporter. Fido ran back and forth frantically, and then hysterically, in response to the banging, finding [“alerting on”] nothing, so they let the poor creature jump out.
The two cops started talking on camera to the reporter, when one of the cops hoarsely whispered to the other “Get your dog.” “Huh? “Get your f---ing dog!” The camera panned around in the direction of both cops’ gaze, and off in the distant desert there was a speck of Fido.
“Fido, Fido, Come!” Fido was having too much fun. The handler cop then barked a command more snarlingly than Fido could ever sound, and he finally trotted back, with the prize in his mouth: Fido had alerted on a dirty baby diaper he happily found in the desert! “Drop it, Fido!” Fido could not quite understand why his master was so grouchy. “DROP IT, FIDO!” He finally did.
The search roust resumed. They headed to the passenger compartment, and the handler commanded Fido to get in and search. Fido ran back and forth, wistfully recalling his baby diaper. Back, forth; back, forth! No diaper; no alert on anything else, either.
Apparently sensing televised calamity or embarrassment, the other officer then went to the hood, opened it, and, obviously to distract the cameraman and reporter, who were still looking for televisable fruits in the passenger compartment, cried out “oh, look; there is something here.” The cameraman and reporter ran up there, leaving the handler and Fido to work their efforts on the passenger compartment. Of course, there was nothing up in the hood, but then the handler, still back at the passenger door, expostulates: “Look what we found.” In the one to two minutes the others were looking in the hood!/?
The reporter and cameraman rushed back to the passenger compartment, and now there had appeared, on the floor of the front passenger seat, a stainless steel vacuum canister, with its top off, and packages of suspected cocaine sitting next to it. The incredulous reporter inquired “Did Fido find that?” “Yep, he ‘alerted’ on it.” Well, could we re-enact that for the camera?” The handler was obviously uncomfortable with the idea, but with the camera and sound rolling, he hesitatingly obliged.
The cops put the suspected drugs back in the canister, screwed on the top, and the handler gave Fido the command to find the stuff. Fido did not have a clue what he was being told to do. The cops banged on the canister with their Billy-clubs, and Fido looked quizzically from one to the other. They then banged and banged and banged to the point that the poor dog damn-near peed himself [and so too the reporter, we suspect], and he then gave a fear-induced quiver, and the handler then said “see, he alerted; let’s see what’s in there.”
They opened the canister, and Zounds!, there were drugs, so the motorist [now being held on a speeding beef for over half an hour] was arrested for trafficking drugs.
Of course, the resulting police report did not read that way. It related that there was a traffic stop, the trusty Fido walked around the car and immediately “alerted” while the speeding ticket was being processed, which gave the cops probable cause, because of Fido’s proven, court recognized track record[!], and they searched, and found a stash of cocaine. Bing, bing, bing, bing. Any court would believe it! Knowing how things are in that drug enforcement arena, I did not.
After reading that report and talking to my client, I started to subpoena the complete tape and outtakes from the Hollywood producer, but my investigator called them first. He spoke to the executive producer and said “Sir, Mr. Kennedy is furious and he wants….” The producer interrupted and respectfully blurted out “he can have whatever he wants; what is it?” Why so cooperative? You see, that producer had given me grief about a similar outtake show 6 months before, when I was litigating a Fourth Amendment attack in Needles. My investigator had called and had politely asked for the tape, and the same producer told him to pound sand. I served a subpoena duces tecum on him, commanding him to appear in Needles, in August, with the tape. He thought about it and tried to get out of the subpoena by then offering to send the tape to me. I allowed that he had screwed with the wrong person and that he could now sit in Needles until I was ready for him. I got that tape, and it showed police dishonesty too, and that case was dismissed.
So this time, when my investigator said “Mr. Kennedy wants….,” there needed not to have been said any more. Mr. Kennedy got.
The tape was a goldmine of police overreaching and corruption and duplicity, and of false representations about the prowess of a renowned police dog, and it was, of course, 180 degrees off of the substance police report that had triggered the filing against my client.
I told the judge that I would share a secret with him and the DA in chambers, and I strongly hinted what it was, and I said that I wanted a dismissal with a promise of no refiling, but if we went to formal hearing, I would contact 60 Minutes. The judge said that if the tape came close to what I said it was, I would get my dismissal. It was not only close, it was utterly congruent with my representation. The case was, of course, dismissed. The DA did not file false police report charges on the cops. Real Stories did not air that segment, but we suspect many they did would have similar outtake revelations: two out of two that I examined did.
While dealing with another matter in the courtroom, I left the tape in the judge’s chambers for 10 minutes, and the only people in there were the judge, the DA, and two cops. When I returned, the tape was missing. Everyone feigned ignorance about where it went! They, of course, honored the dismissal and non-refiling, because they knew I could get another tape. And Lady Liberty wept, because the shepherds proved themselves really to be the wolves.
And those cops, and judge, and DA were as honorable as many we have now, and Fido was as competent, if not more so.
For this current supreme court, “a sniff [would be] up to snuff” for probable cause; unfortunately, our supreme court is not up to snuff for what the Framers envisioned would be their role of protecting us from overweening government. They are increasingly the overweeners themselves!