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Tuesday, February 19, 2013 - 11:00am

High Court Rules On Detaining Suspects, Sniffer Dogs

The U.S. Supreme Court handed police one victory and one loss on Tuesday. In one decision, the justices limited the power of police to detain people who are away from their homes when police conduct a search. And in a second case, the justices ruled that drug-sniffing dogs don't have to get every sniff right in order for a search to be valid.

The Supreme Court has long held that when police execute a search warrant, they may detain anyone found on the premises while the search is conducted. The purpose is to protect the officers' safety during the search and to prevent potential suspects from fleeing or destroying evidence.

Tuesday's case asked whether that same rationale could be used to justify detaining residents of a home who were stopped about a mile away from the search scene. The answer was no.

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 search warrant, other officers conducting 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 officers then handcuffed the men and brought them back to the apartment. One of the men, Chunon Bailey, was then 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.

A federal appeals court upheld the detention, but the Supreme Court ruled it was illegal, and sent the case back to the lower courts, casting doubt on whether the conviction will survive.

"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," said Cornell Law professor Sherry Colb.

Writing for the six-justice majority, Justice Anthony Kennedy rejected all the justifications police offered 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.

Drug-Sniffing Dog

A 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, Wheetley walked his K-9 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.

But the U.S. 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.

"This tells us that the Supreme Court is not going to interfere in the use of drug-sniffing dogs," said Orin Kerr, a law professor at George Washington University. "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."

Child Custody Battle

A third decision issued by the court involved a child custody dispute and an international treaty on child abduction.

The Supreme Court ruled that a U.S. Army sergeant can appeal a lower court's decision ordering the return of his daughter to Scotland. As a general rule under the treaty, children must be promptly returned to the country in which the child was "habitually resident."

This little girl at issue in this case, Eris Chafin, was born in Germany, where her parents, Jeffrey Lee Chafin and Lynne Chafin, met. When the father was deployed to Afghanistan in 2007, mother and daughter moved back to the mother's home in Scotland, where they stayed for two years. In 2010, Eris and her mother reunited with Jeffrey Lee Chafin in Alabama, but the marriage soon soured and the father filed for divorce and custody in Alabama state court. In the meantime, the mother's visa expired and she was deported. She filed suit in May 2011 seeking the return of her daughter to Scotland.

A federal district court in Alabama found that the little girl's habitual residence was Scotland and, pursuant to the treaty, ordered her immediate return to Scotland. Mother and daughter left for Scotland that same day. The father appealed, but the appeals court dismissed his appeal, ruling that his case was moot that it was "powerless" to grant relief because the girl was no longer in the country.

The Supreme Court disagreed. The justices ruled unanimously that Jeffrey Lee Chafin's case, while it might not succeed, was not moot. Chief Justice John Roberts, the father of two adopted children, stressed the need to resolve these cases quickly. But, that said, he concluded, "This dispute is still very alive. ... The Chafins continue to vigorously contest the question of where their daughter will be raised." Bottom line: as long as the dispute is alive, and the father has any chance getting his daughter back, even if the chances are remote, the case cannot be dismissed as moot.

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