No Bones About It – It Just Doesn’t Pass the Smell Test

The Supreme Court (SCOTUS) recently heard oral argument on two companion cases from Florida involving the use of drug-sniffing dogs.  The first case, Florida v. Jardines, considers whether a drug dog’s sniffing outside of a private home constitutes a "search" for Fourth Amendment purposes, thus requiring the police establish probable cause before they "unleash" Fido’s (or in this case, "Franky’s") nose to conduct a search.  The second case, Florida v. Harris, concerns the reliability of the drug dogs in general,, including whether minimum proficiency standards must be established in order to permit a drug dog’s alert to serve as the basis for probable cause.

As an experienced criminal defense attorney, nearly all of my cases, not just those involving drug charges, whether possession or drug trafficking, present issues concerning 4th Amendment searches and seizures, and concerns about reliability and probable cause.  The 4th Amendment, specifically, and the Constitutionally-derived right to privacy, generally, protect individuals from unlawful searches and seizures by the government without probable cause, and protect privacy within the home.  In my opinion it would be a serious abridgement of these rights if SCOTUS rules that a drug dog sniff, even if only on the cusp of the curtilage of one’s home, is permissible (i.e., not a "search" for the 4th Amendment purposes) without prior probable cause.  To do so would basically give law enforcement carte blanche to conduct massive sweeps for drugs and contraband in neighborhoods and apartment buildings without even a mere suspicion of wrongdoing, thereby unnecessarily intruding upon the privacy of law-abiding citizens.

Fortunately, based upon reports of the oral argument, it seems unlikely the High Court will be willing to extend their prior rulings (permitting drug dog sniffs of luggage at public airports and of lawfully stopped vehicles, and the argument that there is no right to privacy in that which is illegal) to private homes, and will require the police first establish probable cause before searching with the dog, rather than permitting the dog to "sniff-around" for probable cause.  However, the ruling in Jardines may well depend upon SCOTUS’ determinations in Harris.  If in reviewing Harris the Court finds that drug dog noses are so reliable as to be the source of probable cause, Jardines could go the other way (which I think would be a case of the tail wagging the dog).

The real issue in Harris isn’t necessarily whether drug dog noses are effective tools for law enforcement - clearly a properly trained dog has a far greater ability to search for scents than does its human handler – but rather to what extent they are reliable, and whether minimum proficiency standards need to be established and related testing/records kept, if they are going to be considered in connection with establishing probable cause.  It seems clear to me that testing and establishing a record of reliability should be absolute "dogma".  But even that is problematic.

In my opinion, dog searches are inherently unreliable for a number of reasons.  As such, their results should be subject to appropriate scrutiny in the form of motions to suppress.  The most troubling issues (assuming testing for proficiency is performed) include the fact that it is the police themselves who perform and certify the testing.  There is an argument that the police would want well-trained dogs, but I submit in some instances they may want dogs that are trained just well enough, especially if there are no requirements to certify records of accuracy, etc.  If a dog alerts falsely, which happens often, and the alert itself is deemed sufficient without more, the police will have a justifiable excuse to perform an unjustified search.  A dog that gets it right some of the time, but not all the time, would give the police expanded power to search.  Another flaw in dog searches is the tendency of dogs, no matter how well trained (or maybe because of how well they are trained) to pick up on cues of their handlers and alert as a response to their police handlers rather than strictly contraband.  Relatedly, much of K-9 basic training is done in the framework of reward (doggy-treat) imbuement, a practice that can arguably result in Pavlovian preconditioning that encourages a so-called alert.  Also, the police are aware that drug transactions are so prevalent that trace drug residue is routinely picked up from routine commerce and regularly found on currency or personal belongings such as bags or knapsacks even in circumstances where the holders of the currency, or owners of the belongings, have had no involvement in the drug trade whatsoever. Hopefully SCOTUS considers these pitfalls and comes to a decision that calls for minimum standards and/or stricter regulation of the use of drug sniffing dogs.

I, along with other criminal defense attorneys, both here in Massachusetts, and nationwide, will wait for SCOTUS’ rulings with bated breath.  I just hope when they do decide, the Justices don’t go barking up the wrong tree.  Drug dog sniffs of the home should be deemed searches requiring probable cause.  Whenever there is a claim of probable cause permitting drug dog searches, there should be adversarial scrutiny of the accuracy and effectiveness of the dog and its handlers before it is confirmed or rejected.