Automobile Stops and Dog Sniff Searches

A favorite tool of the police in stopping and searching cars is a drug sniffing dog. Drug sniffing dogs are trained to detect certain narcotics (commonly methamphetamine, marijuana, cocaine, heroin, and ecstasy). It is not uncommon for a cop to stop a vehicle and then ask for permission to search the car if he believes there might be drugs inside. The propriety of stopping a vehicle and then seeking to search the car for a reason other than the justification of the stop is complicated and complex. The use of drug dogs is the topic of this post.

Stopped By the Police

Officers usually find a legitimate reason for stopping a vehicle, such as speeding, tail lights out, swerving, expired plates, no turn signal, or not signaling within 100 feet of a turn. But, once they have stopped the vehicle, they sometimes will then seek to search a vehicle for drugs. While some officers will suggest they can smell the odor of more than an ounce of marijuana (less than an ounce is a violation, not crime), this is a dubious assertion. However, police drug dogs are specially trained to detect the smell of drugs. An officer might, once having a car stopped, retrieve a drug dog to smell the vehicle to see if they get a “hit” or detect the scent of drugs. If the officer receives an indication of a hit from the drug dog, he likely will suggest he has probable cause to search the car and use an exception to the requirement to have a warrant (the “automobile exception”) and search the vehicle.

Probable Cause and the Courts

An issue that often arises in cases of automobile stops is whether there actually is probable cause to search and, if so, how it is determined and what standard must be met in reaching probable cause. The U.S. Supreme Court addressed probable cause and drug dogs in February 2013 in Florida v. Harris. In Harris, an officer had several interactions with the defendant, Mr. Harris, and in each instance used a drug dog. The first time the dog, Aldo, indicated a hit upon sniffing the car. This occurred after Mr. Harris refused to allow the officer to search his vehicle. Upon the hit, the officer asserted he had probable cause to search and discovered ingredients and tools used to make methamphetamines, but no drugs themselves. Later, the officer had another interaction with Mr. Harris and used the dog again to try to establish probable cause to search the vehicle. Once again, Aldo indicated a hit and the officer again searched the car, but this time found nothing. The Florida Supreme Court held, based partly upon the failure to find drugs as well as an insufficient showing of the dog’s qualifications, that no probable cause existed and suppressed evidence.

However, when the case reached the U.S. Supreme Court, the Court reversed the Florida Court and held enough evidence had been presented to establish the officer had probable cause to search the car. The Court recited it’s assertion that “a police officer has probable cause to conduct a search when ‘the facts available to [him] ‘warrant a [person] of reasonable caution in the belief that contraband or evidence of a crime is present.” In so doing, the Court stated a test for probable cause cannot be reduced to “precise definition or quantification.” The Court rejected a standard such as “proof beyond a reasonable doubt” or “by a preponderance of the evidence” in determining probable cause. Instead, the Court reasserted “in evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances.” Thus, the Court rejected “inflexible, independent requirements applicable in every case.”

The Court did not, however, suggest a drug dog “hitting” necessarily establishes probable cause. In determining whether probable cause existed to search in a suppression hearing, a judge hears arguments from both sides. Both the prosecutor and defense get to present evidence supporting their argument regarding probable cause. A prosecutor might provide evidence of a drug dog’s training or certification. A defendant also may contest the adequacy of such training or certification. The defendant also may examine how the dog and/or officer performed in the assessments made in controlled settings. A drug dog or cop’s experience in the field might be of assistance, although such evidence could prove to be misleading or irrelevant.

What courts are to look at when determining whether probable cause existed to search a vehicle is the totality of the circumstances (such as officer and drug dog training and certification and/or past experience and possibly other factors suggesting reliability or unreliability). The Court emphasized that the lack of a presence of drugs after a drug dog hit is not a factor to be considered in determining probable cause to search. As the Court stated, “we do no evaluate probable cause in hindsight, based on what a search does or does not turn up.”

Thus, much care needs to be taken in reviewing cases in which vehicles are searched based upon probable cause established through drug dog hits. There is no clear-cut answer or rule regarding what evidence or factors are necessary to establish sufficient facts for an officer to assert probable cause exists. Rather, it is imperative to thoroughly review all of the evidence, including, but not limited to, training, certification, and experience of officers and drug dogs when attacking a search involving probable cause established through drug dogs.

Rob Crow
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Licensed to practice law in all State & Federal Courts in Oregon.
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