Can sniffs from drug-sniffing dogs establish probable cause?

February 23, 2013

Can sniffs from drug-sniffing dogs establish probable cause?

Article provided by Mark K. Tyndall, P.C.
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In October, the United States Supreme Court heard two cases regarding the relationship between evidence from a drug-sniffing dog and probable cause. In both cases, the justices will determine if the sniff of a trained drug-sniffing dog can establish probable cause for an officer to obtain a warrant.

Probable cause is the threshold law enforcement must meet to perform a search, request a warrant or make an arrest. Essentially, law enforcement officials cannot perform a search without having reason to suspect that illegal activity is occurring.

Case one: Can a dog's sniff be used to establish probable cause?

In Miami in 2006, police received a Crime Stoppers tip that a resident was growing marijuana in his home. The police organized a drug task force and a month later visited the home with a drug-sniffing dog. The dog and his handler went to the front door first and when the dog alerted to the presence of drugs, the task force detective went to the door and knocked to gain consent for a search.

There was no response at the door, but the detective smelled marijuana and noticed several conditions that made him suspect the home was being used to grow marijuana. He used the evidence, including his detection of marijuana, and the dog's sniff to obtain a warrant to search the home. In the search, law enforcement confiscated several plants and arrested the resident as he tried to escape through the back door.

At trial, the defense moved to have both the sniffs of the dog and the detective suppressed, arguing the sniffs were illegal and violated the defendant's Fourth Amendment rights. The trial court agreed, ruling the search illegal.

The state appealed and the decision was reversed in intermediate court, only to be affirmed once again by Florida's Supreme Court, which argued that the sniffs constituted an illegal search, explaining that prior to the sniffs, there was no evidence that there was any illegal activity at the house that would have established probable cause for the search. The court was also concerned that allowing such sniffs to be used to establish probable cause would give law enforcement the freedom to use drug-sniffing dogs to search properties indiscriminately, for example, having dogs sniff the front doors of all homes on one block, regardless of suspicion of illegal activity.

Now, the United States Supreme Court will hear the case and determine whether a dog's sniff is a search and requires probable cause to execute or if the sniff can be used to establish probable cause.

Case two: Is a dog's training in narcotics detection enough to determine probable cause?

In another case, the Supreme Court will determine whether a dog's training and certification in narcotics detection is reliable enough to establish probable cause in a search at a traffic stop. This case involves a man pulled over in a routine traffic stop for driving with an expired license. The law enforcement official happened to be a sheriff deputy with a canine. When the deputy and the dog approached the car, the dog sniffed and alerted for drugs on the driver's side of the car.

Upon the alert, the deputy searched the vehicle and found supplies for cooking methamphetamine. The driver later confessed to possessing the items, but at trial his lawyer moved to suppress the evidence on the grounds that the dog's training and certification in narcotics detection was not reliable enough to establish probable cause to search the vehicle. His motion was denied, but eventually the Florida Supreme Court agreed with the driver's lawyer and affirmed that the trained dog's sniff was not enough to establish probable cause.

Possible implications for defendants

The Supreme Court's decisions in these cases will have implications for those accused of drug crimes as a result of a drug-sniffing dog. While past rulings establish that a dog sniff can be used to establish probable cause at a traffic stop, there is no precedent for the search to be used at a house. The court's ruling on whether or not a dog's training is reliable enough to establish probable cause will also have broad implications, especially if the Supreme Court finds that it is not, since many cases rely on evidence detected from a drug-sniffing dog's alert.

If you have been accused of drug crime based on evidence obtained as a result of a drug-sniffing dog, please contact an experienced criminal defense attorney who can explain how the Supreme Court's ruling may affect your case.