Challenging Drug Dog Alerts: Seventh Circuit Clarifies Impact Of Florida v. Harris

Seventh Circuit considers recent Supreme Court precedent on the admissibility of evidence discovered during a drug-detection dog alert; the circuit reversed and remanded a civil forfeiture action because fact questions remained, precluding summary judgment, including whether a drug-alert provided reliable evidence that the currency to be forfeited had been in recent contact with illegal drugs, in United States v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120.00), _ F.3d _ (7th Cir. Sept. 19, 2013) (No. 11-3706)

Last February the Supreme Court noted that "a dog's field performance" in accurately "alerting" on drug-associated materials was not necessarily "the gold standard" in determining the reliability any particular "drug-dog alert" evidence, in Florida v. Harris, 568 U.S. at __, 133 S.Ct. 1050, 1056-57 (2013). The courts have only recently applied this case to the admission of evidence challenging a drug-detection dog alert, including a recent case by the Seventh Circuit.

Case Background

In 2002, the DEA seized a briefcase containing $100,120 in currency (hereinafter "Funds"). The DEA discovered the Funds at a railroad station after a Chicago police drug-detection dog (named "Deny") alerted on the briefcase. The "undisputed ... actual owner" of the Funds, a claimant identified as Marrocco, was not charged with any crime. However, he resisted the forfeiture of the Funds. By this time however, the government had deposited the currency in the bank and testing for any drug residue was effectively precluded. The government filed a civil forfeiture action, contending that the money was related to illegal drug transactions. Could the forfeiture be based on Deny's alerting on the briefcase that held the money?

Drug-Dog Alert As Basis Of Forfeiture

After several intermediate proceedings in the district court and Seventh Circuit over the decade since the government seized the briefcase, the government sought summary judgment that there was no genuine dispute of material fact that the drug-dog's alerts to the currency in the brief case demonstrated that the currency recently had been in contact with illegal drugs, subjecting the cash to forfeiture. Marrocco disagreed and requested a Daubert hearing concerning the reliability of the drug dog alert. The district court declined to conduct a Daubert hearing, noting that current circuit precedent "puts to rest any argument that dog sniffs are universally unreliable based on the 'currency contamination' theory," as claimant Marrocco had argued. The claimant contended that because "large quantities of United States currency are contaminated with illegal drugs" a Daubert reliability hearing was necessary under FRE 702 as "evidence offered by the government purporting to establish that drug-dog alerts to currency demonstrate that the currency recently has been in contact with illegal drugs." The trial court court granted summary judgment to the government on the civil forfeiture.

Need For Daubert Inquiry

The district court did not conduct a Daubert hearing, concluding it would not be relevant. Instead the court relied on the government's filings that included "Deny's training and performance logs and [handler] King's affidavit," regarding Deny's past performance. This evidence was sufficient, "as a matter of law [to conclude] that Deny's training and field performance prove by a preponderance of the evidence that he was a reliable drug dog." The circuit considered this conclusion to be a misapplication of United States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (“[a]n affidavit for a search warrant ... need not describe training methods or give the dogs' scores on their final exams. It is enough if a dog is reliable in the field.”). The trial judge interpreted this to mean that a drug dog's reliability "should be determined based solely on his field performance." The circuit disagreed with this reading of the case noting that unlike the current case of civil forfeiture:

Limares is procedurally very different ... because an application for a warrant is an ex parte proceeding. As such, Limares was concerned only with what (necessarily unrebutted) evidence was sufficient to allow a court to rely upon a drug-dog alert in determining whether there was probable cause to believe that a crime had been committed. As precedent, Limares does not address whether, in an adversarial proceeding, a party may point to evidence of a drug dog's inadequate training to create a dispute of fact regarding the dog's reliability.
$100120, __ F.3d at __.

Impact Of Florida v. Harris

The Seventh Circuit cautioned that Limares should not be construed as indicating that "evidence of faulty training cannot be used to rebut evidence of a drug dog's field performance" was highly reliable. It noted that the recent Supreme Court decision in Florida v. Harris, 133 S.Ct.1050, 1056-57 (2013), would not support this contention. Harris involved the legitimacy of a search warrant based on the results of a police stop aided by a drug-sniffing dog. The drug-sniff arose when police pulled over Harris for driving with an expired license plate. The officer's impressions of Harris, who was driving, triggered suspicion that something was not right, particularly in light of his disorientation and nervousness. Harris declined to permit a search of his vehicle, but when the officer let his drug dog sniff around the outside of the vehicle, the dog alerted to the door handle on the vehicle's cab. Using that as a basis for conducting a search, materials for methamphetamine manufacture were recovered from the door where the dog had indicated.

Initially Harris sought to suppress the evidence, but ultimately took a no-contest plea, reserving for appellate review the justification for the search. The Florida Supreme Court agreed with Harris that the drug dog's search was not reliable because it was not shown that the dog was fully dependable. The court identified a set of factors to be used to show that police are justified in relying on a drug dog's alert (e.g., “[W]hen a dog alerts ... the fact that the dog has been trained and certified is simply not enough to establish probable cause.”). This reliability is shown by "a wide[ ] array of evidence," including:

  • Certification: "the dog’s training and certification records",
  • Training Standards: an explanation of the meaning of the particular training and certification,"
  • False Positives And Negatives: "field performance records" (including any unverified alerts), such as "evidence of the dog’s performance history” including records showing “how often the dog has alerted in the field without illegal contraband having been found."
  • Officer Training: "evidence concerning the experience and training of the officer handling the dog," such as "a handler’s tendency (conscious or not) to “cue [a] dog to alert”)"
  • Other Reliability Indicators: "any other objective evidence known to the officer about the dog’s reliability,” such as the 'dog’s inability to distinguish between residual odors and actual drugs.'"
Harris, 568 U.S. at __, 133 S.Ct. at 1055 (quoting Harris v. State, 71 So.3d 756, 775 (Fla. Sept. 22, 2011) ("We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog")).

The U.S. Supreme Court discounted the use of Florida's factor list. Writing for the unanimous court, Justice Elena Kagan discounted the utility of a checklist of factors necessary for a court to conclude that a dog’s alert could justify a drug search. Instead, the Justice noted that "[a] finding of a drug-detection dog’s reliability cannot depend upon the state’s satisfaction of multiple, independent evidentiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.” Instead of the checklist, courts considering whether the dog's alert provided probable cause should allow each side of the issue “to make their best case” which would be judged according to whether the drug sniff in issue satisfied a ”common sense/prudent person” standard. Based on such an assessment, the Court considered that the state's submission of the dog's training record was enough to show that the dog was reliable at the time the dog searched. Harris, 568 U.S. at __, 133 S.Ct. at 1056.

Application Of Harris

While the Court in Harris seemed to suggest that simple credentialing of a dog could justify a “reasonably prudent person” knowing all the facts surrounding the dog's alert, to believe that a search would discover illegal drugs, that is creating probable cause for a search. The Court suggested that mere "evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs." Harris, 568 U.S. at __, 133 S.Ct. at _.

The circuit noted that the question raised in Harris were relevant to the forfeiture context. The circuit held that a claimant "may offer evidence of a drug dog’s inadequate training to challenge evidence of the drug dog’s field or training performance and thereby create a dispute of fact regarding the drug dog’s reliability." $100120, __ F.3d at __ (footnote omitted). In the case, the claimant had presented "some evidence" that challenged "the adequacy of [drug-detection dog] Deny’s training.” Consequently, the district court's grant of summary judgment was reversed and the case was remanded.


The Seventh Circuit's analysis in $100,120 was based on Harris. However, the forfeiture case arose in a different posture. In Harris the credentialing of the drug-dog suggested, in the absence of opposing party at the time that the government sought a warrant, sufficient to show probable cause. In contrast, $100,120 involved not an issue of probable cause, but rather whether a preponderance of evidence suggested that the seized currency was related to illegal drugs. The case makes clear that a claimant may present evidence challenging the training performance of the drug-detection dog. Often this may be in the form of expert evidence.


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