IJ Amicus Brief Alerts High Court to Abuse of Civil Forfeiture Using Drug Dogs

By Darpana Sheth

Police are increasingly using drug-detection dogs to establish probable cause that results in the seizure and ultimate forfeiture of cash, cars and other property on the grounds that the property is somehow linked to a drug crime. Numerous studies show, however, that there is a significant risk that the dog’s “alert” is due to cues from its handler or residual odors, rather than the actual presence of drugs.

On October 31, 2012, in Florida v. Harris, the U.S. Supreme Court will hear arguments on what evidence, if any, the government must introduce to establish the reliability of drug-detection dogs. In a criminal case involving the constitutionality of a search under the 4th Amendment, the Florida Supreme Court ruled that because it is the government’s burden to prove probable cause when conducting a warrantless search, it must introduce objective evidence of the reliability of the drug-detection dog, just as it is required to do when relying on confidential informants to establish probable cause.

Although this case is in the criminal context, it provided a great opportunity for the Institute for Justice to submit a “friend of the court” brief, bringing the abuses of civil forfeiture to the attention of the High Court. Under the rules of civil forfeiture, police may seize property based on what is known as “probable cause” that the property is tied to criminal activity. Under certain federal and state statutes, police can even subject the property to forfeiture based only on that showing of probable cause. Consequently, if a positive dog alert, by itself, is all that is required to establish probable cause, law enforcement will be able to forfeit property such as cash and cars based merely on the roadside “testimony” of a barking dog. Indeed, there are numerous instances in which the police have sought to forfeit cash merely because a dog alerted to the money even though there was no other evidence of criminal wrongdoing. IJ filed a brief in this case to urge the Court to stop this abuse of government power.

Relying on IJ’s own strategic research, our brief explains how modern civil forfeiture laws represent one of the most serious assaults on private property rights today. By giving law enforcement officials a direct financial stake in seizing property and subjecting it to forfeiture, today’s civil forfeiture laws have skewed legitimate law enforcement objectives into a profit-seeking enterprise. After detailing how the explosion of civil forfeitures under federal and state law has created self-financing law enforcement agencies, IJ’s brief chronicles the resulting systemic abuse, including the improper use of drug-detection dogs to seize property without any evidence of criminal activity. In light of this background, IJ urges the High Court to uphold the Florida Supreme Court’s ruling and require the government to show that the drug-detection team, dog and handler, are reliable in light of all the circumstances.

Watch a short video on this case: ij.org/HarrisVideo.

Darpana Sheth is an IJ attorney.