The power of a dog’s nose is incredible. While humans get input from about six million olfactory receptors, their noses contain up to 300 million. Some dogs can even detect cancer cells with their snouts. This is why they are used so much and with such effect in law enforcement communities. The most common use of a “K-9” is as a drug detection dog, also known as a drug-sniffing dog, with most police departments around the country now employing at least one K-9 team for drug enforcement.
There are also cadaver dogs and dogs who can search for missing people and dropped objects. The last of these is often referred to as an “article search” dog. These dogs are trained to track objects, mostly guns, that are tossed by suspects and cannot be found during a regular search by law enforcement. It is truly remarkable what dogs can be trained to do. However, that does not always mean evidence from drug-sniffing dogs in Virginia should be allowed into court without question. An experienced drug lawyer should always question dog sniff evidence rather than automatically accept the results.
The key to any use of canines in law enforcement is training. Officers cannot use just any dog for “sniffs”. They should not even be using another officer’s trained dog to perform dog sniffs. It takes specialized training between the dog and its handler to create a powerful team. The canine handler needs to know how the dog reacts in specific law enforcement environments in order to appropriately understand and interpret his partner’s reaction.
Drug-sniffing dogs are usually trained to detect five drug odors, including marijuana, cocaine, and PCP. When a dog detects one of these odors, it is trained to react and alert its handler. This usually occurs during traffic stops when a canine team is asked to take a pass around the vehicle. If the dog makes a positive alert on the car, the officer informs his colleagues. Most state and federal case law allow a K-9’s positive alert on an object to constitute probable cause to search it.
Therefore, it is not surprising that, if a dog signals that it found something, it is assumed it must be there. It is also not surprising that attorneys often accept evidence found by a drug-sniffing dog in court without question. However, in Virginia, it is important to question this evidence. Sometimes there is more than meets the eye, and a lot rides on the power and strength of this evidence.
Florida v. Harris, 568 U.S. 237 (2013) is the pivotal Supreme Court case for establishing the credibility and reliability of dog detection evidence. The Supreme Court affirmed that, “where the dog’s alert is the linchpin of the probable cause analysis, … the reliability of the dog to alert … is crucial to determining whether probable cause exists.”
Therefore, there must be an evidentiary hearing to determine whether the dog’s alert is sufficient, in and of itself, to establish probable cause to search a vehicle, house, or other location. The trial court must review the totality of the circumstances for the dog sniff, because “the fact that the dog has been trained and certified is simply not enough to establish probable cause for a search.” Instead, the defense has the opportunity to “take into account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors.”
The overall question that a judge must answer for a constitutional challenge to drug-sniffing dog evidence in Virginia is whether the dog’s alert is reliable. With this in mind, the defense can take several steps to question the dog sniff evidence.
The defense should review the K-9 team’s initial and continual training, its certifications, its performance in controlled settings and in the field, the standards used, its percentage of accurate alerts, and any potential for handler error.
They should also question the canine handler’s expertise. This includes questioning how many times if ever, the officer has testified in court as an expert in canine handling, and whether the officer is actually an expert in working with this particular dog and an expert in the type of search the dog performed. For example, if a dog is trained to detect bombs is used to sniff for drugs, then the defense should question why a drug-sniffing dog was not used.
Many drug cases in Virginia involve a canine search and drug-sniffing dog. But not all dogs and their K-9 handlers have solid records. As criminal defense lawyers, it is possible to chip away at the quality of the positive alert by questioning the dog sniff evidence.
Just remember, the dog has a record and that record matters. How good he or she is at this particular job matters just as much as the fact that he made an alert. With the right questions, an attorney may be able to avoid having certain evidence admitted. Contact a seasoned lawyer today who has experience questioning evidence from drug-sniffing dogs in Virginia.
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