Drug Dog Searches
Drug Dog Searches
The criminal defense attorneys at Flanary Law Firm, PLLC are at the forefront of many search and seizure issues including the Narcotic Detection Dog sniff used during a search for drugs. Donald H. Flanary, III, recently spoke on this topic at the 26th Annual Rusty Duncan Advanced Criminal Law Course by the Texas Criminal Defense Lawyers Association on June 14th 2013 in San Antonio, TX. The presentation was entitled, “K-9 Searches and the Fourth Amendment Post Harris and Jardines.”
The articles includes tips for the criminal defense attorney on evaluating a narcotics detection dog sniff case. The article also includes information on filing and litigating Motion to Suppress the search of a vehicle or a container of some sort based on probable cause from a canine alert.
Many drug cases involve complicated search and seizure issues. The criminal defense attorneys at Flanary Law Firm, PLLC are at the forefront of these issues. Call us to discuss your drug case in San Antonio or Bexar County, Texas. We represent clients in state and federal cases including drug cases prosecuted in the United States District Court of the Western District of Texas, San Antonio Division.
Table of Contents
- A Dog Sniff Is Not a Search…
(Unless there is a Trespass on the Curtilage of an Individual’s Property)
- A Trespass on Curtilage by a K-9 Team can Constitute a Search
- Probable Cause to Search After a K-9 Alert will be Viewed Under the Totality of the Circumstances
- The Border Exception to the Fourth Amendment and Evaluating Canine Alerts
- Helping Courts Understand that the Narcotics-Detection Team is a Scientific Instrument Employed by Law Enforcement
- Discovery of Canine Training and Certification Materials
- The “Alert”, the Real Focus of Motions to Suppress
- Attacking the “Alert”
- Top 10 Things to Look for on a K-9 Video
- Other Important Issues
- Standard Operating Procedures for Narcotic Canine Teams
For over thirty years now, the United States has been fighting the war on drugs. One of the many tools in the government’s arsenal in its efforts to interdict drug trafficking has been the use of narcotics-detection dogs. Law enforcement has relied on canines to detect narcotics during traffic stops, at vehicle checkpoints, on persons at ports-of-entry, in private homes and businesses, and while searching the luggage of travelers aboard buses, trains, and airplanes. When used appropriately and under the right conditions, canine teams can be very effective in detecting the odor of narcotics emanating from secreted locations. While narcotics detection dogs have been deployed to find narcotics in every imaginable scenario, this paper will focus primarily on the use of canine teams during traffic stops and checkpoints because these instances account for the most common use of narcotics-detection dogs.
The United States Supreme Court ruled in United States vs. Place, that the exposure of luggage to a trained narcotics detection dog is not a “search” for Fourth Amendment purposes, thereby opening the door to searches of citizen’s property by law enforcement all over the country. 462 U.S. 696 (1983). In 2005, the Supreme Court clarified further that where a “lawful” traffic stop does not extend beyond the time necessary to issue a ticket or conduct inquiries that are instant to the stop, another officer’s arrival and use of a narcotics detection dog to sniff around the exterior of the vehicle also does not rise to the level of infringement of the Fourth Amendment. See Illinois v. Caballes, 543 U.S. 405 (2005). In the spring of 2013 the Supreme Court ruled on two Florida cases which have brought significant clarification to existing case law regarding dog searches.
As discussed infra Florida v. Harris, 133 S.Ct. 1050 (2013) will addressed the reliability requidrements of a narcotics-detection dog team as it relates to probable cause, and Florida v. Jardines, 133 S.Ct. 1409 (2013) has found that police use of a drug-sniffing dog on the front porch of a home to investigate an unverified tip of a marijuana grow operation inside is a trepassory invasion of the curtilage which constitutes a “search” for Forth Amendment purposes. For these reasons, when determining the legality of a canine sniff, it is important to focus attention on four main issues.
First, was the narcotics-detection dog that was used properly trained to detect that particular narcotic? Second, did the reason for the traffic stop or encounter with law enforcement comply with the Fourth Amendment and did the encounter remain legal throughout the pendency of the contact? Third, did the traffic stop extend beyond the time necessary to conduct the stop? Fourth, was the sniff limited to the exterior of the vehicle? Fifth, if the dog-sniff occurred at a private residence or business, was there a trespassory invasion? Sixth, did the police have an implied license for the physical invasion of the curtilage?
In order to evaluate a narcotics detection dog sniff case, great attention must be paid to the actions surrounding the detection. When litigating a Motion to Suppress the search of a vehicle or a container of some sort based on probable cause from a canine alert, you should focus on: (1) the actions of the “drug detection team,” i.e., the actions of the handler and his relationship with the canine, (2) the alert itself, and (3) the reliability of the canine.
It is very important to remember that the drug detection team includes not just the canine, but the handler as well, and the way in which the team interacts with each other during the course of the alert is crucial. If a videotape of the search is present, you will have the opportunity to allow your expert to evaluate the actions of the narcotics-detection team and the alert. If a video is not present, then a thoughtful and well-prepared cross-examination will be required to frame your argument that the sniff was insufficient to support probable cause.
Attacking the reliability of the dog is the second stage to evaluate the sniff and provides the opportunity for success even in light of a presumably credible alert. Scrutinizing the qualifications of the canine to adequately perform legitimate narcotics detection can be an effective way to attack the reliability of the canine. By attacking the training of the dog and the handler, we can cast doubt on the reliability of the canine to provide a credible source for probable cause. This aspect of attaching an alert has now taken on prominence since the Supreme Court has now made it clear that “a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own facts or expert witnesses.” Florida v. Harris. 133 S.Ct. 1050 at 1052 (2013).
The practitioner must be mindful that, in the context of a state court setting, some judges and many prosecutors may have had little experience dealing with contesting the probable cause of a search based on a canine alert to narcotics. Often judges and prosecutors operate, to some degree, on the assumption that if a dog possibly alerted on narcotics then the probable cause should not be called into question. In the federal context, be aware that the government will likely have well kept records regarding the qualifications of their canines and, baring a Supreme Court mandate to the contrary, the government will put up many obstacles to your discovery of any adverse records.
Armed with the Court’s decision in Harris , practitioners should now be in the position to discover and contest the important circumstances that the K-9 handlers will asset as the basis for their probable cause. Whether you find success or not, hopefully, this paper will allow you to educate your audience sufficiently enough to dispel the mistaken belief that all alerts are valid. Remember that you face an uphill challenge and success will only come from a clear and persistent attack on the narcotics-detection team’s alert.
II. A Dog Sniff Is Not a Search…
(Unless there is a Trespass on the Curtilage of an Individual’s Property)
In United States v. Place, in the first “drug dog” case, the Supreme Court determined that the exposure of luggage to a trained narcotics detection dog was not a search for Fourth Amendment purposes. 462 U.S. 696 (1983). Since 1983, a dog-sniff was not a search for Fourth Amendment purposes, however, since the Supreme Court’s ruling in Florida v. Jardines in 2013, a police intrusion on the curtilage of private property can be a prohibited trespass. 133 S.Ct. 1409 (2013).
In Place, the Court reasoned that the “Fourth Amendment protects people from unreasonable government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, at 7 (1977). The Court has affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id at 13. Accordingly, in Place, “ [a] ‘canine sniff’ by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose non-contraband items that otherwise would remain hidden from public view, as does, for example, the officers rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item.
Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subject to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here-exposure of respondent’s luggage, which was located in a public place, to a trained canine-did not constitute a ‘search’ within the meaning of the Fourth Amendment.” See Place at 707.
Place, dealt with an individual who was traveling from Miami to New York and landed at La Guardia Airport. Prior to his departure, law enforcement officers approached the individual and requested consent to search two suitcases in his possession that he had checked. He consented to the search of those suitcases but because the flight was about to depart, the officers did not search the luggage. The officers found discrepancies in the address tags on the luggage and called Drug Enforcement Administration (DEA) authorities in New York and relayed the information. When the individual landed at La Guardia Airport, two DEA agents approached him and asked him for identification.
He was then asked to consent to a search of his luggage, but when he refused consent to search, Agents told the individual that they were going to take his luggage to a federal judge and obtain a search warrant. Instead, the Agents took the luggage to Kennedy International Airport and subjected the luggage to a “sniff test,” by a trained narcotics-detection dog which reacted or “alerted” to the presence of contraband in one of the suitcases. At that point, ninety minutes had already elapsed since the luggage had been seized from the individual at La Guardia Airport. Using the alert from the narcotics-detection canine as probable cause to search the luggage, the Agents then obtained a search warrant for the suitcase and opened it discovering cocaine.
As a result of the fact scenario presented, the Supreme Court held that when an officer’s observation causes him to reasonably believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny allows the officer to detain the luggage temporarily to investigate the circumstances that brought on the officer’s suspicion (provided the investigative detention is properly limited in scope). Secondly, the Court found that the investigative procedure of subjecting the luggage to a sniff by a well-trained narcotics- detection dog does not constitute a search within the meaning of the Fourth Amendment.
Then, in 2005, the Supreme Court in Illinois v. Caballes, held that when a lawful traffic stop does not extend beyond the time necessary to conduct ordinary inquiries into the incident of the stop and issue a ticket, the arrival of a narcotics detection dog to sniff around the exterior of the vehicle does not rise to the level of an infringement on the motorist’s Fourth Amendment rights.
In Caballes, an Illinois State Trooper stopped Caballes for a speeding violation and in the process of issuing a warning ticket, another officer arrived having heard over the radio that Caballes’ vehicle had been stopped. When the second officer arrived, he brought his narcotics detection dog. During the stop, the narcotics-detection team walked around the exterior of Caballes’ vehicle. The dog alerted to the presence of narcotics in the trunk and based upon the alert the officer searched the trunk and found marijuana. The entire incident lasted less than ten minutes.
The Court reasoned that since the traffic stop was lawful, and the officer had not unnecessarily prolonged the stop, and that the dog alert was sufficiently reliable to provide probable cause, the search was justified. The Court points out that official conduct is not subject to the Fourth Amendment if it does not, “compromise any legitimate interest in privacy.”
The Court noted that any interest in possessing contraband cannot be deemed, “legitimate and thus, governmental conduct that only reveals possession of contraband compromises no legitimate privacy interests.” The reason is rationalized by the expectation, “that certain facts will not come to the attention of the authorities,” is not the same as an interest in, “privacy that society is prepared to consider reasonable.” The Court explains that in United States v. Place, they treated canine sniffs by well-trained narcotics dogs as sui generis because it, “discloses only the presence or absence of narcotics, a contraband item.” Therefore, the use of a well-trained narcotics detection dog that, “does not expose non-contraband items that otherwise would have remained hidden from public view,” during a lawful traffic stop, generally does not implicate legitimate privacy interests.
While Place, tells us that the submission of luggage to a canine sniff for narcotics does not constitute a Fourth Amendment search, a canine’s alert to the presence of narcotics is sufficient to provide probable cause to search. United States v. Williams, 365 F.3d 399, 405 (5th Cir. 2004).
Exterior sniffs of objects by narcotics detection dog are almost always considered to be constitutional because they are not considered searches under the Fourth Amendment. The following are examples of legitimate uses of narcotics-detection teams that do not violate the Fourth Amendment under existing precedent:
The submission of luggage to a canine sniff for narcotics does not constitute a Fourth Amendment search. United States v. Williams, 365 F.3d 399 (5th Cir. 2004). Border Patrol agents may stop motorists, question them about their citizenship, and selectively conduct canine sniffs of their vehicles, without reasonable suspicion because dog sniffs are not searches within the meaning of the Fourth Amendment. United States v. Hernandez, 976 F.2d 929 (5th Cir. 1992). The use of a narcotics-detection canine at the exterior of a motel-room door that opens onto a public sidewalk and parking lot is not a search within the meaning of the Fourth Amendment. United States v. Marlar, 828 F.Supp 415 (N.D. Miss. 1993), dismissed, 68 F.3d 464 (5th Cir. 1995).
A canine sniff outside a package on a common air-carrier is not a search within the meaning of the Fourth Amendment. United States v. Daniel, 982 F.2d 146 (5th Cir. 1993). The non-contact canine sniff of a passenger, after the canine had alerted to the presence of narcotics in the passenger compartment of a bus, was not a search within the meaning of the Fourth Amendment. The canine was four to five feet away from the passenger when sniffed, and the handler did not intend to have the canine sniff the passenger as he exited the bus. United States v. Reyes, 349 F.3d 219 (5th Cir. 2003).
Texas courts have followed the precedent set by Cabellas and its progeny holding that if a lawful traffic stop does not extend beyond the time necessary to conduct ordinary inquiries into the incident of the stop and issue a ticket canine sniff is not a constitutional violation; while holding that any unreasonable extension of time awaiting the arrival of a narcotics detection dog is in violation of the Fourth Amendment. State v. Weaver, 349 S.W.3d 521, 528-29 (Tex. Crim. App. 2011); Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004) (Fourth Amendment reasonableness requires a balance between serving the interest of the public as weighed against the individual’s right to be free from arbitrary detentions and intrusions). Additionally, a canine sniff does not normally fall under the purview of a fourth amendment search. Rodriguez v. State, 106 S.W.3d 224, 228 (Tex. App.–Hous. [1st Dist.] 2003, pet. ref’d) (appellant did not have a reasonable expectation of privacy outside his home where the drug-dog sniffed because the front door area was not enclosed); Romo v. State, 315 S.W.3d 565, 573 (Tex. App.–Fort Worth 2010, pet. ref’d) (sniffs of the garage door and the backyard fence were not searches under the Fourth Amendment).
III. A Trespass on Curtilage by a K-9 Team can Constitute a Search
Florida v. Jardines poses a much different question than Harris by asking whether a dog-sniff on a homeowner’s porch to investigate the contents of the home is a “search” with in the meaning of the Fourth Amendment. 133 S.Ct. 1409 (2013).
The “search” in Jardines happened after an anonymous tip to crime stoppers came in that Joelis Jardines was using his house as a marijuana grow house. Miami-Dade Police and DEA agents formed a perimeter around his house while two officers approached the front door with a canine. The canine alerted to an airborne odor and then identified the source as the bottom of the resident’s door.
After the alert the officers presented an affidavit based on the alert to a magistrate and received a warrant which was executed by opening the front door of Jardines home and arresting Jardines as he fled out the back door.
In an opinion written by Justice Scalia, the Court held that: (1) police officer’s use of a drug-sniffing dog on the front porch of a home, to investigate an unverified tip that marijuana was being grown in the home, was a trespassory invasion of the curtilage which constituted a “search” for Forth Amendment purposes, and (2) the officers lacked an implied license for the physical invasion of the curtilage.
Relying on the same logic that the Court used to decided the recent Jones case involving the government’s trespass on a vehicle to place a Global Position System (GPS) device, the Court rendered Jardines on the same concepts of Eighteenth Century trespass law. United States v. Jones, 132 S.Ct. 945 (2012).
That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. Florida v. Jardines, 133 S.Ct. 1409 at 1414. (2013).
The Court considers that “the area ‘immediately surrounding and associated with the home’—what our cases call the curtilage—as ‘part of the home itself for Fourth Amendment purposes.’” Id. It reasons that “[vc_row][vc_column][vc_column_text][w]hile the boundaries of the curtilage are generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar enough that it is ‘easily understood from our daily experience.’” Id at 1415.
The Scalia then goes on to say that “[s]ince the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion.” Id. And so it follows that officers invasion on Jardines home is unlawful “[a]s it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.” Id.
Scalia’s majority opinion has no interest in addressing issues of an expectation of privacy in Jardines front porch. He wries that “we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. But that’s not the end on it for the privacy issue. Justice Kagan, in her concurrence, adds that the intrusion on Jardines property was also an invasion on privacy.
IV. Probable Cause to Search After a K-9 Alert will be Viewed Under the Totality of the Circumstances
In addition to Jardines, in the spring of 2013, the Supreme Court also addressed another important case out of Florida that sheds considerable light on the landscape of canine searches.
In Florida v. Harris, the Court addressed “whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?” 133 S.Ct. 1050 (2013). The Florida Supreme Court held that a wide array of evidence was always necessary to establish probable cause including field-performance records showing how many times the dog has falsely alerted.
The U.S. Supreme Court applied a more “practical and common-sensical standard” preferring a “totality of the circumstances approach. Id at 1055. “We have rejected rigid rules, bright-line tests, and mechanistic inquires in favor of a more flexible, all-things-considered approach.” Id. It is clear that the Supreme Court rejects the Florida approach of “creating a strict evidentiary checklist to assess a drug-detection dog’s reliability” Id at 1052.
While the Court does not create a specific test for probable cause, it does protect and preserve a defendant’s right to discover, challenge, and contest the basis for that probable cause. For example:
“Under the correct approach, a probable-cause hearing focusing on a dog’s alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause.” Id at 1052
“But a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant may contest training or testing standards as flawed or too lax, or raise an issue regarding the particular alert. The court should then consider all the evidence and apply the usual test for probable cause—whether all the facts surrounding the 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.” Id at 1052-1053.
V. The Border Exception to the Fourth Amendment and Evaluating Canine Alerts
Given the extensive use of narcotics-detection canines at international border points-of-entry [or their functional equivalent] and immigration checkpoints, any discussion of narcotics-detection dogs must necessarily include some background on the “border exception” to the warrant requirements of the Fourth Amendment. Under the border-search doctrine, government agents may conduct a routine search at the international border or its functional equivalent without probable cause, a warrant, or any suspicion to justify search. United States v. Rivas, 157 F.3d 364, at 367 (5th Cir. 1998).
A stop and search at an international border that is not routine requires a reasonable suspicion of wrongdoing to pass constitutional muster, and reasonable suspicion of criminal activity must be based upon specific facts which, taken together with rational inferences therein, would reasonably warrant an intrusion. Id. Routine searches, for purposes of border-search doctrine, are generally classified as those which do not seriously invade a traveler’s privacy. Id.
Reasonable suspicion required to conduct a non-routine, warrantless search at an international border is defined as a particularized and objective basis for suspecting the particular person of smuggling contraband. Id. In determining whether government agents possessed reasonable suspicion that criminal activity was occurring so as to justify a non-routine, warrantless search at an international boarder, the court must consider the totality of the particular circumstances. Id.
As one can see, it is quite important to examine whether the actions that involve the canine in the search equate to a routine search. In Rivas, the Court suppressed a search where Customs Agents drilled into the body of a vehicle based on sniff known as “casting” [an improper alert in which the handler claims that the canine smells contraband from a distance but the canine does not give an alert].
The alleged alert, or “casting” as its know, was later held to be invalid and not a basis for probable cause for the non-routine warrantless search. Since the drilling into the vehicle was not a routine search, the validity of the sniff [which formed the basis for the search] was crucial in spite of Rivas’s close proximate to the border. This case highlights the importance of examining an alleged canine alert even though the event may take place in a location so devoid of Fourth Amendment protections as at an international border.
The Fifth Circuit in United States v. Kelly, has held that an up close sniffing of a person at the border by trained narcotics-detection dogs offends reasonable expectations of privacy and thus is a “search” under the Fourth Amendment. See 302 F.3d 291(5th Cir. 2002) cert. denied, 537 U.S. 1094 (2002). However, since border searches constitute one of the exceptions to the probable cause and warrant requirements of the Fourth Amendment, then searches at the border are deemed reasonable simply by virtue of the fact that they occur at the border. Therefore, the canine sniff of a pedestrian entering the United States is a routine border search.
VI. Helping Courts Understand that the Narcotics-Detection Team is a Scientific Instrument Employed by Law Enforcement
There are two areas to focus on when attacking searches with or without a warrant. The first area to focus on is the alleged alert by a trained narcotics-detection canine. The second area to focus on is the reliability of the narcotics-detection team. When looking to attack the reliability of the narcotics-detection team, it is important to demonstrate to the court that the reliability of the alert from the canine is directly dependent on the effectiveness of the handler. I reiterate that both the narcotics-detection canine and the handler compose the narcotics-detection team and each part must be reliable and valid in order to produce an effective alert to the presence of contraband. Therefore, it is relevant to recognize that the narcotics-detection team is an imperfect law enforcement tool.’
Analyzing the parts of the narcotics-detection team, the handler must be qualified by his experience, training, and certifications to utilize a narcotics-detection canine. The other part is the canine and likewise, the experience, training, and qualifications of the canine determine the canine’s reliability. It may be helpful to view this team in the framework of the principles of Daubert, and the 700’s series of the Texas and Federal Rules of Evidence.
The attacker of the narcotics-detection team should lead the court down the path of this framework because this can be a useful and familiar way to illustrate to the court the importance of this “technical and scientific” skill that the narcotics-detection team is employing. The court should understand that the techniques employed by the drug-detection team must be held to the same levels of scientific scrutiny as any other expert testimony.
While a Daubert hearing is not necessarily the appropriate procedural vehicle to challenge the reliability of a canine inspection,the court must recognize the importance of a “trained and certified canine unit.” See United States v. Outlaw, 134 F.Supp.2d 807 (W.D. Texas 2001) citing United States v. Dovali-Avila, 895 F.2d 206 at 207 (5th Cir. 1990). Probable cause to search a vehicle will be up held when a canine’s trainer, the canine’s handler, and the canine have successfully completed all standard training procedures and the canine is certified to detect the type of narcotics that it is alleged to be alerting. United States v. Campos, 237 Fed.Appx. 949 (5th Cir. 2007). Since the Supreme Court has granted cert in Harris these factors have taken on new importance and practitioners are already citing to Harris as setting out standards for the reliability of a detection team.
VII. Discovery of Canine Training and Certification Materials
Since only a trained and certified canine unit can be relied upon by law enforcement to provide reliable probable cause to search for narcotics, then disclosure of the same is necessarily required to effectively investigate and defend canine alert cases. Under Rule 16 of the Federal Rules of Evidence, the Government is required to disclose materials pertaining to a narcotics-detection canine training and certification because these documents and records are crucial to a defendant’s ability to assess the dog’s reliability, which is very a important issue in the defense of a canine-sniff case as well as to conduct an effective cross-examination of the canine’s handler. Unites States v. Cedano-Arellano, 332 F3d 568, 571 (9th Cir. 2003). Furthermore, Harris should be readily cited for the proposition that the defense “must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Harris at 1057.
VIII. The “Alert”, the Real Focus of Motions to Suppress
There are two main themes to be present in Motions to Suppress the probable cause for searches in narcotics-detection cases. First, was the narcotics-detection team properly trained and certified? Second, was the alert to the narcotics sufficiently reliable to establish probable cause for the search? The most fertile ground for a Motion to Suppress will be found in the answer to the second question. The main reason for this is that while the underlying training and certification of the narcotics-detection team must be vigorously attacked. Harris lays out the way the courts should focus their probable cause inquiries:
“The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 (“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.” Harris at 1057-58.
“In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.” Id at 1058
“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.” Id.
With proper documentation and testimony, the government will easily establish that the canine and handler were reliable. The real fight will be specifically with the alert. For this reason, it will most certainly be necessary to employ the use of a defense canine expert to evaluate the alert in the case and testify that the alert was not reliable.
In attacking the training and certification of the narcotics-detection team, appropriate and early discovery of these materials will be key. The practitioner should file a narrow and targeted Motion for Discovery to obtain these particular materials. The following should be discovered:
- Verification that the canine was trained to detect the odors for the particular drug.
- Verification of the canine’s success rate.
- The method used to train the canine to indicate an alert.
- The type of alert used.
- A statement showing that the canine positively alerted to the presence of narcotics in the proper fashion.
- Proof of the canine’s certification.
- Proof that the canine has continued to meet all certification requirements and received necessary training on a regular basis.
- Verification that the handler has been trained to handle narcotics-detection canines.
For a more exhaustive explanation of the training requisites for the narcotics-detection team see the Standard Operation Procedures for Narcotic Canine Teams.
IX. Attacking the “Alert”
A dog’s nose is uniquely equipped to detect the faintest of odors. See R.C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky.L.J. 405 (1997). In order to know whether the alert was valid, an individual must have a canine expert examine the police dash-cam video. Do not assume that just because the report does not mention the existence of a video of the search that one does not, in fact, exist.
Open records requests, discovery requests, and subpoenas duces tecum, must all be issued to be certain that a video is not in existence. If there is a video, the defense canine expert can view it and consult on the content of the record. If no video exists, the challenges will be greater, but not impossible. This means that the cross-examination of the handler will be paramount and therefore, the cross-examiner should be adequately prepared.
The canine should be trained to give an alert or a particular response when they come into contact with a scent cone of the particular substance they are trained to detect. Dogs can be trained to alert aggressively or passively. An aggressive alert is some sort of active signal to the handler that the dog is in the scent cone and the particular substance is in range. A passive alert will entail the dog sitting, lying down, or some other non-active signal to the handler to alert him to the presence of narcotics. A dog will only alert in the manner in which it is trained.
A handler will be in a position to recognize the alert only if: (1) the handler knows what type of alert the dog is trained to give, (2) the handler is trained to work with narcotics-detection dogs, and (3) if the handler has lengthy history and experience working narcotics-detection with that particular dog. Even the most experienced handlers and canines will not make a reliable team unless they have had time to train and work together. The handler must insure that the canine is trained properly and receives regular consistent training exercises.
X. Top 10 Things to Look for on a K-9 Video
- The actual response of the dog sitting is way over rated. It is the actions of the handler and canine in the 10 – 20 seconds before that which are important.
- The canine should be showing “active sniffing behavior” and not just following along with the handler’s hand presentations.
- The canine should be exploring and curious about areas other than the specific spots that the handler points out to it.
- The canine should not be looking at the handler constantly. This is a sign of a very dependant and unreliable canine. This is also an indication of a canine looking for some sort of “cue” from the handler about where he is expected to respond.
- Fluid motions of the handler. The handlers should keep moving without stuttering their step or hesitating when the canine is showing an interest in an area. Those actions on the part of the handler will become cues to the canine and cause a false or incarnate response.
- Handlers doing a “tap back.” This is going back to an area where a canine has already checked and making them do it again. The canine will take this as a cue and respond even if nothing is there.
- The canine should be working almost independently of the handler and not actively paying much attention to him/her, other than checking the presentation areas on occasion. A good canine needs little or no presentations from the handler. A good metaphor for the job of the handler is to do as little as possible and stay out of the canine’s way. Handlers are merely portable toy or food dispensers for when the canine does right.
- Once a canine responds, it should become a statue until it is given its reward. If a canine is seen to respond or “sit”, and then immediately get back up again, then this is a false response or a sign that the canine is weak in its task.
- If a canine does not get its reward in a timely manner, within 1 – 3 seconds, a good one will go back, sniff again and respond again and start getting antsy. A weak canine will get up and walk off.
- The handler should believe the canine the first time, whether it is a response or not. If the canine responds and the handler has it check that area again, then rewards the response, this is a sign of a weak or poor handler that does not know how to read or trust his canine. In most cases, once a canine checks an area, the handler should not have it go back and check again. The only exception to this is if the handler recognizes that his canine is not actively searching, they may go back and do an area again.
- (One More) Wind direction is CRITICAL!!! Odor from drugs or whatever the dog is trained to find is heaver than air and will drop in low wind currents. Likewise, the odors will follow the wind currents. This is the biggest issue in vehicle searches, large open buildings such as warehouses, or any other outdoor environment. For example, if it can be see that the wind is blowing from the left to the right, and the canine responds on the door seam on the left side of the vehicle, but shows no interest on the right side, go back and look for cues from the handlers. The most probable spot for a response in that situation would be on the right side of the vehicle.
XI. Other Important Issues
There are no national or state requirements for any type of certification or training standards. It is the responsibility of each individual police department or law enforcement agency to develop its own standards. This allows for the agencies to create as stringent or relaxed policies or standard operating procedures as the individual departments and agencies want to create. The problem with this situation is that smaller agencies may send officers to receive specialized narcotics-detection training, but there may be no follow up with retraining or recertification of the handler or the canine.
Generally, most canine officers, who are not trained by state or government agencies, receive their training from some sort of private training program. These schools can be very abbreviated in comparison to other governmental agencies. They give handlers “recommendations” as to how training and handling should be conducted and documented. Therefore, it is important to establish were a particular officer received his training.
Without adequate training and conditioning, a canine looses reliability quickly. For this reason, training should be maintained on a regular basis and documented properly. Proper training for the handler is also very important. As illustration of his importance, an experienced and well-trained handler is capable of cueing a response from the canine, even when no narcotics are present, however, a poorly trained and inadequately supervised handler will cue a response from the canine inadvertently, even when no narcotics are present.
The industry standard for a narcotics-detection canine alert proficiency should be a ninety percent detection rating. This is based on trials conducted and supervised by a third person where the handler goes into the scenario with no advance knowledge of the location of the training aids. All too often, handlers have to hide their own training narcotics. This improper technique will invalidate a proficiency trial, and therefore, if all training is conducted in that way, the narcotics-detection canine’s proficiency is unreliable.