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Police canine units (aka K9 units) (aka dogs) are often used in roadside police investigations and traffic stops when police suspect drug possession or distribution.
Police may be acting just on a hunch. But they bring in a canine unit and run the dog around the car, conducting an “open-air” sniff in order to establish reasonable suspicion or probable cause to expand the scope or extend the duration of the original stop.
Are dogs really the infallible drug-detection machines some police say they are?
Courts generally view a well-trained dog as being reliable, almost by assumption. But there are several questions to consider before questioning a handler in court, or making a preliminary challenge to the admissibility of evidence.
Police look for crimes – not just activity.
There are many activities that people can legally engage in, without committing any crime.
- Driving a car;
- Walking with a child;
- Owning a firearm;
Under certain circumstances, these activities can be part of a misdemeanor or felony offense. But finding evidence that a person is engaged in one of these listed activities does not, by itself, establish probable cause to believe that a crime is being committed.
Driving a car becomes a theft crime if the driver has taken the car from the owner without permission. It might be a crime if the driver is not licensed and insured, or if the vehicle is not registered. But simply driving a car down the road does not give police a legal basis for pulling you over.
Walking with a child can be a crime if you are not the child’s parent and the parent has not at least temporarily entrusted you with caring for the child. Kidnapping is a serious crime. But police are not allowed to stop and detain every parent who is seen walking through a park with their child.
The right to own, carry, and use a firearm is a right protected by the Second Amendment to the United States Constitution. Exercising that right is not a crime, except in circumstances where the person is legally restricted from owning or possessing a gun. Without evidence showing that the person is under some legal restriction, police cannot simply arrest or detain every gun owner they find.
Possessing a controlled substance is an activity that millions of people engage in every year in the United States. It is not always a crime.
Can dogs tell the difference….?
Canines are trained to alert on or detect a variety of drugs. But dogs are not trained to give a different indication for each substance that they have been trained to detect. Moreover, a dog’s indication or alert does not inform the handler as to whether the substance is legal or illegal, legitimately prescribed or illicitly obtained.
- Does marijuana purchased legally from a licensed dispensary and used for legitimate medicinal purposes smell different than marijuana that was legally purchased for on the street? Can the dog tell the difference?
- Amphetamine-based medications are commonly prescribed to treat ADHD. Chemical tests done by certified labs often lump amphetamine and methamphetamine into a single category for identification purposes. Can the dog tell the difference? And can the dog tell the difference between prescribed Adderall and the same substance that is being illegally obtained?
- Opioid medications are still legally prescribed used for legitimate medical purposes. Can the dog distinguish between the odors associated heroine, Fentanyl, Lortab, or other opiates? And can the dog tell whether the substance is legally prescribed and legally possessed?
The answer to these questions is, of course, “no.”
What was the dog trained to detect and find?
Drugs? Explosives? Guns? Cash money? People? The more things a dog is trained to detect, the less information the dog can provide to its handler when it alerts.
A dog who is trained to alert on both drugs and firearms should always give an alert if it is run around a police car. But that canine alert does not establish probable cause that the police are illegally possessing drugs.
How well was the dog trained?
Do the canine’s training records (and the K9 handler’s training records) show a pattern of giving false alerts? A dog that always alerts can not be relied on to give an accurate alert.
Does the handler’s training show a pattern of tipping the dog off as to where the target substance is going to be found?
Is the training done using double-blind procedures – where even the handler does not know if a real target substance is being used, what the target substance is, or where it is hidden?
In Summation….
Don’t be afraid to make a 4th Amendment challenge to a police traffic stop or other search and seizure activity just because the report says the dog gave the proper trained response.
Get the video recordings. Get the training records (both the dog and the handler). Study them. Consult with an expert when needed. Don’t assume that the dog can do everything that the officer thinks the dog can do, or that the dog is infallible.
Are we still presumed innocent in a traffic stop?
The American criminal justice system is based on a fundamental principle that ordinary people going about their normal activities should be presumed innocent unless there is evidence to the contrary. By allowing police to detain a person and seize and search their property, based just on a dog’s indication, is our society giving up that presumption of innocence?