With technology advancing at lightning speed, new investigatory techniques are continually being developed to assist police and prosecutors in detecting and prosecuting crime. But some convictions and acquittals still depend on something as old and natural as the ability of a trained dog to smell the presence of an illegal substance.
Is a dog’s nose good enough to get evidence into a modern court of law in the United States? The United States Supreme Court ruled that one Florida police dog named Aldo did his job well enough “under the totality of the circumstances” to allow the evidence he sniffed out to be admissible into evidence.
The answer to the question about whether a drug dog’s evidence is admissible in a Florida court is that it depends on the circumstances of the dog’s training, the officer’s experience with the dog, the absence of any improper cueing by the officer, and many other factors.
U.S. Supreme Court’s Ruling on Drug Dog Evidence
The Fourth Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The law presumes any search without a warrant is unreasonable unless it is covered by a specific exception to the warrant requirement as delineated by the Supreme Court. One of the exceptions to the rule applies to automobile searches.
In Arizona v. Gant, 129 S. Ct. 1710 (2009), the Supreme Court ruled that an officer may search an automobile without a search warrant when they have “probable cause” to believe the automobile contains evidence of a crime.”
The Florida Case of Aldo the Dog
The Florida case that was decided by the U.S. Supreme Court in 2013 was Florida v. Harris. i The case involved a police officer who pulled a car over because of an expired registration. The officer reported that the driver was very nervous and fidgety. When the officer asked for permission to search the car, the driver declined.
The officer happened to be accompanied by a trained drug detection dog. The officer led the dog around the outside of the car for a “free air sniff.” The dog alerted strongly to the driver’s side door, after which the officer located a large quantity of pseudoephedrine, an ingredient used to make methamphetamine. The driver was arrested and after being read his rights, he confessed to cooking meth because he was addicted and needed to sell it to live. He was charged and brought to trial.
At trial, the defendant’s attorney moved to suppress the drugs as the fruit of an illegal search, claiming the dog’s sniffing and alerting were not sufficient bases to support a finding of probable cause for the search.
The United State Supreme Court held that the dog’s training and record of reliability in detecting drugs was enough to lead a reasonably prudent person to believe there probably was criminal activity afoot when considering the totality of the circumstances.
i: Florida v. Harris, 568 U.S. 237 (2013)
When Will the Dog’s Evidence NOT Be Admissible in Evidence?
In the Florida case involving Aldo the dog, Florida v. Harris, the Supreme Court pointed out that the defendant’s lawyer did not challenge the dog’s search details in such a way that would have caused doubt about the dog’s reliability.
The defendant has a constitutional right to cross-examine the officer and other prosecution evidence about issues that would have compromised the dog’s ability to perform a reliable smell test. The defendant could have presented their own evidence or an expert to contradict the claims of the police about the dog’s records, training, or actions.
For example, did the police officer consciously or unconsciously “cue” the dog to alert at the door? Did the dog have a history of alerting in the absence of drugs? Are there other common, benign, noncriminal substances that are easily misidentified by drug detection dogs and would reduce the likelihood that an alert was a sign of drugs located near the dog’s alert?
Were the defendant’s attorney in the Harris case able to successfully call into doubt the reliability of Aldo’s alert responses as signs that drugs are present, the court might have ruled that Aldo’s alert did not rise to the level of probable cause to search the car. Unfortunately for Mr. Harris, the defense lawyer did not make the right arguments or ask the right questions.
Read More > How Long Do Police Have to File Drug Charges in Florida?
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