Are the Sniffs Up to Snuff?

posted by on Thursday, June 28, 2012

Have you or anyone you know ever been the subject of a police K9 drug search as a result of a traffic stop or otherwise?  Have you ever wondered whether a police drug dog can actually detect the presence of drugs on a person, in a car, or in a home?  Ever wondered if the police were able to manipulate their drug dogs to "alert"when no drugs are present so the officer has probable cause to search your vehicle or your home?  Skepticism has been on the rise lately concerning the credentials of police drug dogs and their handlers' abilities to effectively detect the presence of narcotics and provide the police with the ability to conduct a search of the person, their vehicle, or their home.

Since the U.S Supreme Court's decision in Illinois v. Caballes, allowing a dog to sniff the exterior of a car stopped for a traffic violation, and United States v. Place, allowing for a dog sniff of a person's luggage, drug dogs have become an integral part of state and federal law enforcement agencies war on drugs. The Court's pronouncement in Caballes allowed officers to use K9s to conduct an exterior "sniff" of a stopped car for the presence of narcotics and if the dog "alerted" to the presence of narcotics then the officer would be allowed to search the car without impinging on the motorists' rights under the Fourth Amendment of the United States Constitution. Although profound, the Court's decision was not without limitations, and cautioned that the stop of the motorist could not be unnecessarily prolonged by the police to effectuate the sniff of the automobile.

Much litigation has ensured following the wake of the U.S. Supreme Court's decisions in Caballes and Place with recent opinions from the Florida Supreme Court paving the way for yet another visit by the U.S. Supreme Court concerning these issues.  This time the United States Supreme Court will be deciding what evidence if any the Government must produce to establish that a dog's ability to credibly and reliably detect the presence of narcotics is required to be shown by the Government in order establish probable cause and uphold searching a vehicle based upon a positive alert by that dog.   In State v. Harris, the Florida Supreme Court held that "evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause [to search]."  The court's concern in Harris was that the dog could only detect the odor of narcotics and not the presence of narcotics which is an important distinction given that the odor of narcotics is easily transferable and readily present in many different everyday situations.  The Court also recognized the lack of documentation for false positive alerts attributed to the dog thus undermining the dog and the handler's credibility and reliability.  Particularly puzzling to the Florida Supreme Court, was the officer's testimony that the dog performed satisfactorily 100% of the time but could not explain why satisfactory performance of the dog included alerts where drugs were not found.

In the companion Florida Supreme Court case of Jardines v. State of Florida, the court addressed whether (1) a "sniff test" by a drug dog conducted at the front door of a private residence was a search within the meaning of the Fourth Amendment and if so (2) whether the showing of wrongdoing by the state prior to the sniff requires probable cause or reasonable suspicion.  In addressing these two issues, the Florida Supreme Court determined that the sniff was a search within the meaning of the Fourth Amendment and that the State must establish probable cause evidence prior to completing the dog sniff at a private residence.  The United States Supreme Court has also agreed to review this decision on these two issues as well as those present in Harris and only time will tell what the outcome will be.

 In the meantime, the credibility and reliability of drug dogs and their handlers should be attacked on several fronts by anyone facing criminal charges as a result of a drug dog sniff.  First, it must be pointed out to the court that the dog is detecting an odor of narcotics and not the presence of narcotics.  This is important considering that the transfer of the odor of narcotics from person to person and object to person is commonplace.  Second, the credentials of both the dog and the handler should be questioned in order to ensure proper training and documentation of that training including documentation of all "false positive alerts" by the K9.  It is important to remember that a dog may "alert" to drugs when in fact the dog may simply want a treat given that the dog is trained with treats for all positive alerts.  Last, and probably most importantly, one should question whether the dog was conditioned to alert upon a conscious or subconscious action from the handler. 

In the event that you still question the reliability of a drug dog to detect the presence of narcotics and more importantly the dog handler's credibility to influence that dog to falsely alert to the presence of drugs, take a few minutes to watch this video by clicking HERE.
 
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