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What Are Your Rights When it Comes to 'Nosy' Drug Dogs?

The Fourth Amendment protects a person’s right to be free from unreasonable search and seizure. One of the tools law enforcement most often uses in ways that potentially violate this right is that of the drug detection dog.

Drug dogs are a normal practice American police use to conduct searches and sniff out drugs and contraband. Normally, without emergency circumstances, an officer must have probable cause to search a person’s belongings, such as their car or house. Drug dogs are used by law enforcement to provide that probable cause where none yet exists.

If police violate a person’s Fourth Amendment rights with a drug dog, a motion to suppress whatever evidence they discovered through the violation should be filed.

Drug Dog Terminology
“Handler”The person trained to read and interpret the dog’s signals
“Alert”Drug dog gives signal he was taught that signifies the presence of drugs to handler
“Hit”When the dog “alerts” and drugs are actually present
“Miss”/ “False alert”When the dog alerts and no drugs are present
  • The Supreme Court has said that these are harder to quantify because if the dog does not alert, officers cannot search unless some other factor such as smell gives them probable cause so they don’t know if the alert was actually false
  • A miss is not enough evidence to infer that a dog is not accurate—the Court said a dog with a miss could have smelled the residual odor of drugs that were previously on the person or in the vehicle.
Does the police officer require my consent to search?

Police need reasonable suspicion of a traffic violation to pull you over in the first place. Then, in order to search the car, they need probable cause that you have committed some crime other than the traffic violation. So unless an officer already has probable cause, they need your permission to search your vehicle, or to allow a drug dog to sniff the outside of your car. If an officer is asking for permission to do either, it usually means they do not already have probable cause and need your permission. Many people don’t know it is within their rights to refuse consent for police to search your belongings at this point. If you say yes and consent, it becomes legal for the officer to search your car or use a drug dog.

In recent years the U.S. Supreme Court has provided certain limits as to the use of drug dogs, explained below.

Drug Dogs and Airport Luggage: United States v. Place: Letting a drug dog sniff a piece of luggage at the airport is not a “search” under the Fourth Amendment. Police do not need probable cause or a warrant to let the dog sniff your luggage.

Drug Dogs and Traffic Stops:

  • Rodriguez v. United States: Unless police have “reasonable suspicion” of a crime, it is an unconstitutional seizure for them to extend a legal traffic stop in order to conduct a dog sniff. Dog sniffs at a traffic stop are considered “searches” within the Fourth Amendment that require probable cause, and police cannot use a drug dog to obtain that probable cause unless they already have reasonable suspicion. Police authority for holding up your vehicle ends once their tasks tied to the traffic violation (i.e., writing your ticket) are or reasonably should have been finished.

  • Florida v. Harris: The fact that a drug dog is not trained to detect the particular substance found in a vehicle, and alerted anyway, is not enough to dismiss a dog’s reliability or the probable cause their alert provided the police officer. If a drug dog is “certified,” this is enough to create a presumption that the dog provided probable cause, even though there are no uniform standards for drug dog certification and training.

In Harris, the driver refused to give officers permission to use drug dogs to sniff his car while he was pulled over for a routine traffic stop. The officers walked a drug dog around his car anyway, the dog alerted, and the officers searched his car, finding pseudoephedrine and other supplies used in the manufacture of methamphetamine.

The particular dog the officers used to sniff Harris’s car was trained to detect several different types of illegal substances, but not pseudoephedrine. Harris argued at trial that the dog’s alert was false and did not give the officer probable cause to search his car, so the drugs should be suppressed as evidence.

This case raised two of the classic problems with using drug dogs to provide probable cause:

  • Lack of uniformity in training for police dogs

    • Dogs are not trained to alert to all illegal substances

  • Inaccuracy of drug dog results. Only 44 percent of dog alerts in a Chicago Tribune study led to the discovery of paraphernalia or drugs. This could be because:

    • The dog handler exhibits leading behavior. Spending too long examining the car or leading a dog around it too many times can lead to false alerts.

    • Drug dogs are domesticated animals who are trained to please their handlers above all else. This desire outweighs their drug sniffing capabilities. Studies suggest a drug dog can read its handler’s body language revealing any preexisting beliefs about who might or might not be hiding drugs.

      • Racial profiling by the police officer is one example of this.

        • In the Chicago Tribune report, the accuracy rate of dog alerts for Hispanic drivers was 27 percent, even lower than the 44 percent overall rate. This could mean the dogs in these cases were picking up on cues from their handlers, who expected to find drugs.

Compounding this problem is that most states do not hold drug dogs to any statutory standard of performance. The U.S. Court of Appeals for the Fourth Circuit, the federal court for North Carolina, has accepted as evidence dogs with success rates of 43 percent.

Drug Dogs and the Home

Florida v. Jardines: An officer needs probable cause to bring a drug dog up on your porch and to your front door. The courts give enhanced protection to people’s homes against search and seizure. A person has the right to a reasonable expectation of privacy in their own home, and this extends to the immediate area surrounding the home (called the “curtilage”) like the porches and side gardens.

To summarize these situations please review the chart below.

For police to…
They must have…
Unless…
Use dogs to search your luggage at an airportReasonable suspicion the luggage contains something illegal (a lesser standard than probable cause)
Pull you over for a routine traffic stopReasonable suspicion of a traffic violation
Pull you over in a legal checkpoint where every car or every nth car is checked
  • “n” must be predetermined; for example, officers must decide ahead of time that they will check every 10th car in line
Reasonable suspicion that you are unlicensed, impaired or engaged in a crime to pull you out of line and question you further.
Once you are pulled out of line, they can use a drug dog to sniff the outside of your car.
Prolong a traffic stop, once the officer is done writing you a ticket for the traffic offense, long enough to get a drug dog to sniff the outside of the vehicleReasonable suspicion of a crime (other than the traffic violation)
  1. Police reasonably believe that exigent circumstances exist, such as:
    • you are armed/have a weapon within arm’s reach
    • you are destroying evidence (eating drugs etc.)
  2. You give consent for the search/dog sniff (YOU CAN SAY NO!)
Search your homeProbable cause
  1. Exigent circumstances
  2. You give consent
Enter your porch/approach your front door with a drug dogProbable cause

This obviously does not cover every potential interaction a person can have with the police. An experienced criminal defense attorney will be able to assert the available defenses relevant to your unique situation. Contact us now to schedule a consultation with our experienced team of criminal defense lawyers.