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Sniffing Out Probable Cause

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The US Supreme Court today unanimously reversed the Florida Supreme Court's attempt to subject routine dog sniffs to a battery of rigid tests.

It is good to see the current Supreme Court unanimous in its acceptance of the Rehnquist Court's reform of probable cause, without a single Justice wanting to go back to the old Warren Court approach.

Justice Kagan wrote the opinion.

All we have required [for probable cause] is the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." [Ill. v. Gates, 462 U.S.] at 238, 231 (internal quotation marks omitted).

In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Pringle, 540 U. S., at 371; Gates, 462 U. S., at 232; Brinegar v. United States, 338 U. S. 160, 176 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6. Probable cause, we emphasized, is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even use- fully, reduced to a neat set of legal rules." Id., at 232.
The Florida Supreme Court flouted this established approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off. Most prominently, an alert cannot establish probable cause under the Florida court's decision unless the State introduces comprehensive documentation of the dog's prior "hits" and "misses" in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog's reliability, the absent field performance record swill preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis. It is, indeed, the very thing we criticized in Gates when we overhauled our method for assessing the trustworthiness of an informant's tip. A gap as to any one matter, we explained, should not sink the State's case; rather, that"deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability." Id., at 233. So too here, a finding of a drug-detection dog's reliability cannot depend on 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.

The case is Florida v. Harris, No. 11-817.

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The single most important thing to remember about probable cause is that it does NOT mean more likely than not. This is a mistake I see again and again.

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