Dog Sniffs and Drug Detection: Probable Cause?

The Supreme Court has agreed to review a lower ruling involving whether drug detection dogs – which are notoriously poorly trained and poorly handled – can serve as a pretext for a warrantless search. As the Florida Supreme Court wrote in Harris v. State:

When will a drug-detection dog’s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.

and concludes:

For the reasons explained below, we hold 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—especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

As Jacob Sullum explains:

Although the Supreme Court has issued several decisions dealing with police dogs over the years, it has not squarely addressed the question of their reliability. Dissenting in Illinois v. Caballes, a 2005 decision that allowed warrantless sniffs of cars during routine traffic stops, Justice David Souter noted that “the infallible dog…is a creature of legal fiction.” Souter cited examples from court cases of dogs with error rates of up to 38 percent, adding that “dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time.” Souter is no longer on the Court, but evidently at least some of the current justices see a need to re-examine the assumption that a canine alert “discloses only the presence or absence of narcotics,” as the Court claimed in United States v. Place, a 1983 decision that allowed warrantless sniffs of luggage at airports on the theory that such examinations are not really searches. Maybe so, but they definitely lead to searches, and a careful consideration of whether and when they should is long overdue.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.