Our City P.D. has obtained a new drug dog and the following debate has come up: if the dog "hits" on the outside of the vehicle (creating p.c. for a search), can the dog then be used to search the inside of the car for the specific place where the alleged drugs will be found? Or does the officer have to do the search himself without the dog? I'm searching on lexis for the answer now, but thought maybe one of you would know the answer off the top of your head. Thanks for your thoughts!
The alert on the exterior of the car provides probable cause to make a warrantless search of the car. The dog is just an extension of the officer.
Think about it this way. If the officer saw something in plain view on a seat by using his flashlight to illuminate the item, you wouldn't expect the officer to have to turn off the flashlight when searching the interior would you?
A good resource for your K9 guys is Terry Fleck http://www.k9fleck.org/ There's lots of good K9 training out there, but I don't know anybody who stays on top of the legal aspects of K9 utilization the way he does. Your guys are in a great position geographically to do some bang up interdiction work. Good luck to you all.
The Supreme Court just granted a cert. in Florida v. Harris to review the Florida Supreme Court's holding that an alert by a trained and certified drug dog is not enough to establish PC.
The Florida Court held:
In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. "[S]imply characterizing a dog as `trained' and `certified' imparts scant information about what the dog has been conditioned to do or not to do, or how successfully."
* * *
evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis.[fn8] In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found"
Reading the Florida case, that state court treats the case as if it is a trial based on the standard of beyond a reasonable doubt, rather than the flexible consideration of probable cause.
My guess is the SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial. The officer need only act reasonably. Relying on the alert of a trained and certified drug dog is certainly reasonable. The test is not whether the alert is admissible in evidence at trial.
The Fla. S.Ct.'s question indicates it does not understand the ways of either dopers or sniffer dogs. The fact that a sniffer dog alerted on a car, and yet no dope is found is not evidence the sniffer dog gave a false alert. The smell of pot, and probably most other drugs, stays in the car long after the dope is removed. All a sniffer dog can do is alert if he smells drugs. His alert does not mean there are still drugs in the car.
To say that an officer does not have PC to search a car that smells of drugs because it is possible the drugs are no longer in the car is absurd.
And that point was presented by the State as to why identifying "false" positive alerts is a misnomer. Pretty hard to say the dog didn't smell drugs.
And, how is that any different than an officer who says he smelled the odor of marihuana? There are plenty of cases in which drugs aren't found (perhaps because it was all smoked up), yet we don't discount the probable cause to search.
All in all, the Florida SC seems to have over thought the whole issue. Perhaps the SCOTUS will clean it back up. Why take the case otherwise?
And, generally, the Supreme Court reverses more cases than it affirms.
Here's an interestingly link that suggests the handler is a weaker link than the dog.
SCOTUS gets it right
The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.
As a drug prosecutor, I am so happy they got it right. That Florida case had defense attorneys asking for all kinds of crazy proof of our dogs' accuracy. I just kept praying common sense would prevail.
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