Harris v. State

• Decision Date: 22 September 2011
• Docket Number: No. SC08–1871.,SC08–1871.
• Citation: 71 So.3d 756
• Parties: Clayton HARRIS, Petitioner,v.STATE of Florida, Respondent.
• Court: Florida Supreme Court

71 So.3d 756

Clayton HARRIS, Petitioner,

v.STATE of Florida, Respondent.

No. SC08–1871.

Supreme Court of Florida.

April 21, 2011.As Revised on Denial of Rehearing Sept. 22, 2011.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Division Chief Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Susan M. Shanahan and Natalie D. Kirk, Assistant Attorneys General, Tallahassee, FL, for Respondent.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.¹

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 Harris v. State, 989 So.2d 1214 (Fla. 1st DCA 2008), expressly and directly conflicts with the decisions of the Second District Court of Appeal in Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), and Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003).² In Harris, the First District without elaboration cited State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), and State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), as authority in support of affirming the trial court, which upheld the search at issue. The First District also cited Gibson, which followed Matheson, as contradictory authority.

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 Harris and disapprove Coleman and Laveroni. We approve Gibson and Matheson to the extent they are consistent with this opinion.

FACTS

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 Miranda³ rights, Harris stated that he had been cooking meth for about one year and most recently cooked it at his home in Blountstown two weeks prior to the stop. Harris also admitted to being addicted to meth and needing it at least every few days.

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.⁴ Thus, it is impossible to determine what percentage of time Aldo alerted and no contraband was found following a warrantless search of the vehicle.

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.⁵ On this stop, Officer Wheetley again deployed Aldo, who alerted to the same driver's side door handle. A subsequent search of the truck revealed only an open bottle of liquor and no illegal substances.

Officer Wheetley testified to the issue of residual...