Dogs are man’s best friends. We’ve all heard this adage. And many of us probably agree with it, we may even own a dog ourselves. Dogs— by their very nature— are loyal, protective and selfless, the perfect sidekick. They don’t pass judgment, they don’t talk back and they don’t ignore you. Dog-lovers across the country rant and rave about their four-legged friends, some even viewing them as members of their family. While dog-lovers will continue to pledge their love and support for their K-9s, defense attorneys will decry the significant fourth amendment privacy violation these animals provide law enforcement. The fourth amendment protects citizens from unreasonable searches and seizures. For the most part, law enforcement is not allowed to intrude upon the sanctuary of one’s home without probable cause or a search warrant. However, with the proliferation of police dogs has come questions over whether drug detection dogs are reliable and if so, whether or not their “alert” establishes the probable cause necessary to justify a warrantless search.
With the turn of the 20th century, countries around the world— including the United States— began to assimilate dogs into law enforcement practice. It is thought that the U.S. Army initiated one of the first K-9 units in the Seminole Indian War of 1835-1842. Since the inception of dogs into the police force, dog assignments and responsibilities have dramatically increased. Where dogs were once used for intimidation they are now being used to detect illegal substances and track lost persons. And it’s these latter responsibilities that have led the United States Supreme Court to hear arguments on the role of dogs in sniffing out drugs and other contraband. Specifically, the Supreme Court recently heard oral arguments on two cases that question the reliability of drug sniffing dogs.
The first case deals with Joelis Jardines. In that case, the Miami PD received a tip that the home of Joelis Jardines was being used to grow marijuana. In response, two uniformed officers, along with a drug detection dog, approached and knocked on Mr. Jardines front door. At the door, the dog “alerted” to the scent of narcotics. As a result, the officers applied for a search warrant, which was issued. A search of the house revealed that marijuana was in fact being grown. Consequently, Jardines was arrested and charged with trafficking cannabis.
The Florida Supreme Court found that a simple sniff and alert did not establish the requisite probable cause and held that the dog’s sniff was a substantial intrusion into the sanctity of the home and was a search within the meaning of the Fourth Amendment. Thus, the “alert” by the dog was insufficient to establish the probable cause that is necessary for a search warrant. The State of Florida appealed.
The second case involved Clayton Harris. In that case, a drug detection dog alerted his handler that illegal substances were inside a vehicle that they had just pulled over. A search of Harris’ car revealed over 200 pills and other supplies to make meth. The dog was trained to detect several types of illegal substances, but not pseudoephedrine.
Harris argued that the dog’s alert was false and did not justify a warrantless search. The Florida Supreme Court held that the State failed to prove that the dog’s reliability was sufficient to show probable cause; thus, the search was invalid. Again, the State of Florida appealed.
These cases highlight two things. First, that judges and justices must stop blindly accepting the affidavits from officers/handlers that claim their dog is “certified.” Second, a dog sniff, by itself does not establish the probable cause that is needed to intrude upon an individual’s privacy right and conduct a warrantless search.
As it stands now, courts are eager to issue search warrants based solely on a drug dog’s “alert.” Judges are doing this without inspecting the dog’s training and certification. Lately, prosecutors and defense attorneys are finding that these once thought-to-be “infallible” dogs are prone to mistakes. In fact, one study estimated drug detection dogs were correct in their alert only 32 per cent of the time. However, judges continue to grant search warrant applications based solely on a drug dog’s alert. This is a great miscarriage of justice. Judges must understand that dog training and certifications have an expiration date; they must understand that— very much like humans— practice makes perfect and just because a dog, at one time, was certified does not mean that the certification has not run its course. Honing and perfecting a craft requires maintenance and upkeep. For example, dozens of professions require individuals to continue attending educational and professional seminars on a yearly basis; why shouldn’t detection dogs follow similar standards? Therefore, before issuing a search warrant judges and justices must be willing to scrutinize the training and certifications police officers claim their dogs possess. Judges and justices must look to the dog’s prior “alerts,” when the dog was last trained or certified and the interaction between handler and dog.
When evaluating a dog’s conduct the handler’s behavior and cues are just as important as the dog’s training and certifications. Human officers have their reputation on the line when using drug detection dogs. They don’t want to look bad in front of suspects and/or other officers. On the other hand, drug dogs have nothing, other than a potential treat, riding on the eradication of illegal drugs. Thus, officers/handlers may intentionally cue their dogs to justify a warrantless search and/or obtain a search warrant. The combination of an overzealous officer’s desire to find illegal drugs with a dog craving a treat can lead to unjust and unconstitutional searches. Judges must be aware of this bias. Judges must be aware of the subjective intentions of the officer/handler and dog when deciding whether or not to grant a search warrant.