In Jacksonville, Florida, we handle a lot of drug cases that arise from an arrest after a drug dog or K-9 alerts to the alleged odor of illegal drugs in a vehicle. In many of these cases, the police officer makes a routine traffic stop and then is suspicious that the person has illegal drugs in his/her car and either has his/her drug dog walk around the vehicle or calls for an officer with a drug dog to come to the scene to have the drug dog sniff the outside of the vehicle. If the drug dog alerts to the odor of illegal drugs from the vehicle, the police officer then thoroughly searches the vehicle looking for the drugs. If the police officer finds drugs, the police use that as an example of the drug dog’s reliability. If the police officer does not find drugs in the vehicle, they assume there were drugs in the vehicle but recently removed.
When these cases go to a trial or result in a motion to dismiss the evidence of the illegal drugs by the criminal defense attorney, the police officer who handled the drug dog is required to come into court and explain to the judge or the jury how the drug dog can reliably indicate to the odor of illegal drugs.
However, what exactly the police officer is required to establish with the drug dog is not clear. Criminal defense attorneys have complained that police officers get a free pass when it comes to proving that a drug dog has been reliable in prior cases. When inquiring into a drug dog’s prior track record, police officers often testify that when a drug dog has alerted to illegal narcotics in cases where no illegal drugs are found, it only means that the illegal drugs must have been in the vehicle earlier but removed. With that argument, a drug dog can never be wrong when alerting to the odor of illegal drugs.
The United States Supreme Court recently decided to take a look at what the police and the state have to prove to establish the drug dog’s reliability sufficient to allow the evidence regarding the drug dog into court. The United States Supreme Court is reviewing a Florida Supreme Court case where evidence of a drug dog’s alert to illegal drugs was thrown out. At the trial of the case, the state merely presented evidence that the drug dog was trained and certified at detecting drugs. The Florida Supreme Court held that this was not sufficient to establish the reliability of the drug dog evidence. As with people who provide information about a potential crime, the Court was looking for more information about the drug dog’s reliability.
Police must have probable cause to search a person’s vehicle without consent. As a result, merely testifying that a drug dog who has been trained and certified alerted to the odor of illegal drugs is not enough to establish probably cause for a police officer to search a person’s vehicle. Since there is no uniform standard for training and certifying drug dogs, it is difficult to tell how valuable such training and certifications are. The Court was looking for information about the drug dog’s prior performance and the dog’s successes and failures.
It is anticipated that the United States Supreme Court will decide what proof is necessary to allow a police officer to search a person’s vehicle for drugs based on the indication from a drug dog.