U.S. Supreme Court Lowers Government’s Burden for “Dog Sniff” Searches

“Alert Signal” from a Properly Trained Drug-Detecting Dog is Enough to Establish Probable Cause for a Warrantless Search during the Roadside Stop of a Vehicle.

On Tuesday, February 19, 2013, the U.S. Supreme Court issued its opinion in Florida v. Harris, __U.S.__ (no. 11-817) in which it overruled the Florida Supreme Court’s previous holding that K-9 officers in Florida must be able to present evidence of a dog’s previous performance in the field, including how often the dog had signaled the presence of drugs when none were found.

In this particular case, the same dog had twice alerted officers to the presence of certain illegal drugs in the defendant’s vehicle, and both times the search failed to produce any evidence of the drugs in question. However, on one of the occasions, officers found ingredients for the eventual production of methamphetamine, and the defendant was charged with unlawful possession of those ingredients.

The Florida Court had ruled that the mere fact that a dog had been trained and certified was not sufficient, without more, to establish that an alert from the dog was sufficiently reliable to establish probable cause for a warrantless search.

Justice Elena Kagan, writing for a unanimous Supreme Court, said that the legal standard for probable cause was “practical and common-sensical” and that the requirements imposed by the Florida Court were too rigid. “All we have required,” Justice Kagan wrote, “is the kind of ‘fair probability’ on which reasonable and prudent people, not legal technicians, act.”

Kagan observed that the dog’s signaling the scent of drugs was not necessarily a “mistake” since the dog’s nose was capable of sensing the residual odor of narcotics. She added that the better measure of the dog’s reliability is not what happens in the field but how the dog performs in controlled testing environments where the testers know when drugs are present or not. “For that reason, evidence of a dog’s satisfactory performance in a certification or training program can provide sufficient reason to trust his alert,” she wrote.

One of the ongoing concerns about dog sniff alerts is that the individual who determines whether there is an “alert signal” is almost inevitably a law enforcement officer who frequently has an interest in conducting the search.  Since all that is now required is training and certification, it would be increasingly difficult to question the reliability of the entire practice.

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