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At the Supreme Court today, score one victory for police and one loss. The victory is that drug-sniffing dogs don't always have to get it right in order for a search to be valid. In the loss, the court ruled police can't detain someone just because they're searching a home across town. NPR legal affairs correspondent Nina Totenberg begins with that case.
NINA TOTENBERG, BYLINE: The Supreme Court has long held that when police execute a search warrant, they may detain anyone on the premises while the search is conducted. The purpose is to protect police safety during the search and to prevent potential suspects from fleeing or destroying evidence.
Today's case asked whether that same rationale could be used to justify detaining residents of a home who are a mile away.
The case stemmed from an informant's tip telling police about a handgun and drugs in a basement apartment on Long Island. As one group of policemen was preparing to execute a warrant, other officers conducting a surveillance outside the residence saw two men leave. They followed the men for about a mile and then pulled them over, searched them, found no drugs or weapons, but did find keys to the apartment.
The police then handcuffed the men and brought them back. One of the men, Chunon Bailey, was convicted using, among other things, statements he made at the time he was stopped by police and the keys as evidence showing that he lived at the apartment.
But today, the Supreme Court ruled that the detention was illegal and sent the case back to the lower courts, casting doubt on whether the conviction will survive. Cornell Law Professor Sherry Colb.
SHERRY COLB: What the court said was that if you allow this, then whenever you do a search, people associated with that home could be arrested no matter where they are. And that just goes too far.
TOTENBERG: Writing for the six-justice majority, Justice Anthony Kennedy rejected all the police justifications for the detention, including the argument that detaining the men on the steps of the apartment could have alerted those inside to destroy evidence or flee. That argument, he said, would justify arresting anyone in the neighborhood who could alert the occupants about the impending search.
The court said that once an occupant has left the immediate vicinity of the premises, he cannot be detained unless police have probable cause for an arrest or possibly, reasonable suspicion that would justify a quick stop and questioning of the individual. Dissenting were Justices Stephen Breyer, Clarence Thomas and Samuel Alito. They would have allowed the detention after an individual is gone from the premises.
Today's second search decision pitted the sniffing skills of a German shepherd named Aldo against a Florida truck driver named Clayton Harris. Harris was pulled over on a routine traffic stop. Officer William Wheetley later testified that based on the driver's nervousness, he asked for permission to search the truck. Harris refused, whereupon, the policeman walked his K9 partner, Aldo, around the car. And when Aldo alerted to the presence of drugs, the policeman searched the truck.
He didn't find any of the drugs Aldo was trained to detect, but the policeman did find various ingredients for making methamphetamines. Two months later, when Harris was out on bail, Officer Wheetley stopped him again. This time, for a broken brake light. Again, Wheetley walked Aldo around the car, and again, the dog alerted for drugs. But this time, the search turned up nothing.
The Florida Supreme Court ruled that both searches were illegal. In order to use a dog's alert to justify a search, the state court said police must demonstrate more than that the dog was trained and certified. Police must also present field performance records to show that the dog is a reliable detector of the presence of drugs.
Today, however, the Supreme Court disagreed. Writing for a unanimous court, Justice Elena Kagan said that requiring an inflexible performance checklist as the gold standard for canine reliability defies common sense. Instead, the justices said courts should generally consider a dog sniff as reliable if the dog has completed and passed a certified training program that includes controlled performance tests.
ORIN KERR: This tells us that the Supreme Court is not going to interfere with the use of drug-sniffing dogs.
TOTENBERG: George Washington University law professor Orin Kerr.
KERR: That's enough for a court to presume that the dog's alert is probable cause. And a defense attorney can try to challenge that, but they're going to face a little bit of an uphill battle. They need to show that the certification is bogus or the training wasn't good enough or the dog actually failed the training. That's going to be a hard burden for most defense attorneys to try to satisfy.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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