Dog Sniffs and Probable Cause

It is common for police to use a dog trained to detect drugs as a way of establishing probable cause to search a car during a traffic stop. The officer walks the dog around the car, and if that officer or "handler" says the dog alerted at a certain area of the car, the police may search the car for the presence of drugs.

Much has been made in the past few years over the reliability of these dog searches. Issues such as whether the handlers cuing the dog to alert, if the dog really alerted and the reliability of the alert are often contested. Each dog has their own specific way of alerting, which to the untrained eye may not look like much. In addition, there are times when a dog will alert and the officer never finds any drugs in the car. To further complicate things, states vary on the training requirements for drug dogs, and vary on what sort of paperwork the police are required to keep on that dog.

The issue was clarified this week by the United States Supreme Court in Florida v. Harris, in a unanimous opinion written by Justice Kagen. At first glance, the opinion seems to be a disadvantage to defendants because the court held a dog alert will create probable cause so long as there is a showing that the dog's alert was merely reliable. The court refused to institute a higher showing that the dog's training complied with a strict checklist of things which would make his alert reliable. All that must be shown is "a satisfactory performance in a certification or training program" in order to create reliability and thus probable cause. Additional showing by the prosecution of other records is not required.

The Supreme Court reasoned records of the dog's training in a controlled environment, rather than in the field, might be more relevant yet runs contrary to what many experts believe. Training a dog in a facility or an open air field where drugs are planted in a specific spot, often by the handler, raises questions of reliability since the handler knows where the drugs are and may unconsciously cue the dog to alert where the drugs are. However, the Court felt that field training instead was less reliable because if a dog fails to alert at a car, that handler will never know if there were actually drugs in the car because the car will never be searched. In addition, the Court commented that the times that a dog alerts in the field and no drugs are subsequently found in the car, it may be because there was simply residue of drugs on the door handle that made the dog alert. Or it may because there is a residual odor from previous drugs in the car, or the drugs are too well hidden for the officer to find. For these reasons, the Court felt field testing was less reliable than in controlled environments.

The positive that does come from Harris for defendants is the Court made it clear a defendant has the right to contest the training of the dog. The Court explicitly stated a defendant may cross examine the dog handler or present his own expert as to the reliability of the dog.

The Court ultimately held both sides should have the right to contest probable cause as they always do, regardless of the fact a dog was used. It declined to employee a strict set of evidentiary requirements on the prosecution in order to establish reliability of the dog. And they made it clear a defendant always has the right to contest the reliability on cross examination or in his case in chief.

One unanswered question is what happens when dog sniffs are used in QUASI-CRIMINAL or forfeiture cases, and money instead of drugs are seized. In that case, civil rules of procedure govern the seizure of the money rather than criminal procedure. There are many cases which exist where police seize large amounts of cash because the dog alerted to the presence of drugs on the money. The government then contends the money was used as proceeds in drug transactions and attempts to keep the money.

These proceedings lead to all sort of evidentiary issues. For instance, currency is fluid, always changing hands. How can the dog differentiate between one tainted bill the person may have received as change from a restaurant versus multiple bills actually used in a drug transaction? How long ago did the money come in contact with drugs? Days? Months? Years? These are only a few of the questions of reliability which are raised in these sort of cases.

But Harris can now arguably be used in these forfeiture cases to say the person whose money it is MUST be allowed to examine the reliability of the dog alert. And when there is thousands and thousands of dollars on the line, this is a very important right.

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