Law enforcement have been using trained canines for decades in drug cases throughout the country.
Our Boston criminal defense lawyers understand the wide latitude granted these search dogs and their handlers may finally be curbed by the nation’s high court.
The U.S. Supreme Court will look at two cases decided in favor of the defendants by the Florida Supreme Court. Previous rulings found the pooches breached privacy rights and were unreliable.
Oral arguments were concluded last week, and a decision is expected sometime in June.
The issue arose amid rulings in two cases, coincidentally out of Florida, in which drug dogs were used – once in a home search, and once in a vehicle search.
In one case, the dog was used during a traffic stop in Liberty County. The officer pulled over the driver, and the dog was brought to the vehicle to sniff the exterior. This is a common practice that was upheld in a 6-2 decision by the U.S. Supreme Court in 2005. Justices ruled that in the course of a lawful traffic stop, a drug dog sniff does nothing more than indicate to the officers were the unlawful substance is located, and therefore does not breach the individual’s Fourth Amendment rights.
In this case, the dog alerted for drugs when the vehicle was sniffed. Drugs were found and the driver was arrested and released on bail. This happens all the time, and would not have made headlines, except for what happened next. Two months later, the driver was again pulled over. The same officer stopped him. The same dog was with him. The dog alerted in the same manner. However, this time, a search of the vehicle revealed no drugs.
It was on this basis that the court tossed evidence collected in the first search. Although the initial stop may have been lawful, the court ruled, the dog’s sniff clearly could not constitute probable cause to search when the dog had been deemed unreliable.
Attorneys for the state argued that extensive testimony regarding a dog’s training should not become part of every criminal trial. Attorneys for the defense countered that because dogs are animals, they are prone to mistakenly alert for almost anything – a tennis ball or other animals, for example.
Alongside this issue is one of privacy, specifically home privacy. In the second case, an officer acting on a tip approached the home of a suspected marijuana grow house operator. His canine was in tow. The canine positively alerted for marijuana, and on that basis, the officer obtained a search warrant. Officers did indeed find marijuana inside the home. However, a judge suppressed all evidence relating to that search, as he concluded officers had trampled on the defendant’s Fourth Amendment rights by approaching his door with a trained dog.
The risk here is if the Supreme Court justices decide in favor of the prosecutors in this case, there would be nothing to stop officers from going up and down streets with canines and approaching homes at random, on a fishing expedition for drugs. Police agencies say they haven’t the time for that, but barring laws that would specifically ban them, we can’t rule it out as a possibility.
In one indication that the defense may receive a favorable ruling, Justice Sonya Sotomayor cited an Australian study, which indicated that drug-sniffing dogs had an accuracy rate of only about 12 percent.
Massachusetts criminal cases involving drug dogs should always be handled by a defense attorney experienced in challenging search warrants and probable cause.
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