The use of drug-sniffing dogs in warrantless searches has sparked numerous legal disputes over whether they violate Fourth Amendment rights against unreasonable searches and seizures, and the question remains unsettled. While two Fourth Amendment challenges are pending before the U.S. Supreme Court, questions have arisen regarding the accuracy of police dogs in detecting the presence of illicit drugs. A federal lawsuit even alleges that a high-level state law enforcement official intentionally trained police canine units to respond to cues, rather than to the scent of drugs.
The Chicago Tribune reported on the accuracy of drug dog searches in January 2011. A review of Illinois Department of Transportation (IDOT) reports covering the years 2007 to 2009 found widely divergent success rates, meaning an alert by a dog leading to the discovery of illegal drugs. IDOT does not have a standard definition of an "alert," so police departments might apply the term differently. The Illinois State Police and the Chicago Police Department did not report any drug dog alerts, leaving the reporters with data from suburban law enforcement.
Illinois canine units had a success rate of forty-four percent statewide, meaning that police found no drugs for more than half of the dogs' alerts. The success rate was only twenty-seven percent for Hispanic drivers. Canine handlers, the reporters said, often lack training, and the state lacks dog training and certification standards. This leaves defendants with little ability to challenge an individual dog's accuracy. Police dog handlers and trainers, according to the Tribune, argued that the success rate of alerts is not a good measure of program success, because dogs' sensitive noses can pick up traces of drugs even after cars have been sold. If anything, this lends support to defense arguments that drug-sniffing dogs mostly provide a pretense for searches in the absence of probable cause.
Texas does not have a standardized certification requirement for drug-sniffing dogs. Private organizations offer training programs, and police must usually present evidence of some sort of certification. The case law on this varies around the country. A case originating in Texas, United States v. Outlaw, 319 F.3d 701 (5th Cir. 2003), affirmed the denial of a defendant's motion to suppress evidence obtained after a dog alerted to his suitcase. The dog was trained to detect marijuana, cocaine, heroin, and methamphetamine. The drug found in the defendant's suitcase, after the officer determined that the dog's alert constituted probable cause, was phencyclidine (PCP). The court found the dog's alert to be reliable and the officer's suspicion to be reasonable, even though the dog lacked training to detect that particular drug. Id. at 704.
An interesting development in the dispute over drug dog reliability is a Nevada federal lawsuit, Moonin, et al v. Nevada, et al, No. 3:12-cv-00353 (D. Nev., Jun. 26, 2012). Several current and former Nevada Highway Patrol officers brought suit against their former chief, who is now the director of the state Department of Public Safety. They allege that he deliberately compromised the state police canine program by directing a trainer to train the dogs to alert in response to cues from a handler. The allegations, if true, could have a wide-ranging impact on both current drug prosecutions and past convictions.
Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To schedule a confidential consultation to discuss your legal matter, contact us online or at (432) 687-5157.
Complaint and Jury Demand (PDF file), Case No. 3:12-cv-00353, Moonin, et al v. State of Nevada ex rel. Nevada Department of Public Safety Highway Patrol, et al, U.S. District Court, District of Nevada, June 26, 2012
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East Texas Town Seizes Large Amounts of Marijuana in Traffic Stops, Texas Criminal Lawyer Blog, January 1, 2013
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Use of Unmanned Drones by Law Enforcement Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, October 5, 2012