A dog’s nose is an incredible thing. This is why law enforcement in Virginia use carefully trained dogs to detect drugs, bombs, other explosives, missing persons, and missing items. Even the United States Supreme Court has recognized and accepted the use of drug-sniffing dogs for Fourth Amendment searches and seizures. Given a solid set of credentials, a dog’s positive alert for drugs can establish probable cause to search a vehicle, home, or other containers and objects.
However, not every dog nor every search is sufficient to establish probable cause in Virginia. A skilled drug attorney should always consider the training of the drug sniff dog and its handler when questioning the credibility of the evidence.
Defense attorneys should gather evidence and testimony from the drug-sniffing dog’s human handler about the team’s training, certifications, experience, and record to question the team’s expertise. By questioning this information, a lawyer can cast a doubt on the drug-sniffing dog’s credibility.
Because it takes special training and experience to use a canine for law enforcement purposes, courts in Virginia should only consider a K-9 handler’s testimony if that handler is certified as an expert in dog handling and has experience working with that particular dog.
As with all expert testimony under Rule 702 of the Federal Rules of Evidence (with most states having a similar rule), a dog handler may testify as an expert only if they have the proper “knowledge, skill, experience, training, or education” in the field for which they are testifying. The court must weigh that expertise based on Rule 702’s determining factors that the witness’s testimony is:
Even if the K-9 handler has the proper knowledge, skill, experience, training, or education in dog sniffs, they must also meet the additional four standards for expert testimony. These qualifiers are not optional, and attorneys in Virginia should demand strict proof of these standards before the handler testifies in front of a jury about the dog sniff. The key to all dog sniff evidence is reliability or whether the dog’s positive alert and its handler’s interpretation of that alert are reliable enough to establish probable cause.
If the drug-sniffing dog’s credentials are reliable, then the search will be upheld as a legal search with probable cause. The higher a dog’s success rate in finding drugs based on its training, the more reliable the dog’s sniff evidence will be.
The defense should ask for copies of all documentation on the dog’s training and experience. Obtain its certificates, a list of the items the dog has been trained to detect, how long the dog has been working in this field, and its ratio of positive to false alerts. Ask how long the dog’s training lasted, what it was trained to do, the methods and procedures it learned to detect drugs, and whether it receives continuing training.
If possible, an attorney should also obtain training manuals from the police department that describe the dog’s training. They should compare those procedures to the training used in other law enforcement communities and see how well they match. Not all dogs have solid records, and not all dogs have been vetted, so it is important to question everything.
Defense attorneys should gauge the dog handler’s experience and training with his partner. If a dog and its handler is trained, it does not prove that the two are trained together and have sufficient experience in the field as a team. Normally, handlers do not use each other’s partners in the field, because it takes specialized training between the dog and its handler to create an efficient team. The canine handler needs to know how the dog reacts in specific law enforcement environments in order appropriately to understand and interpret his partner’s reaction.
For example, a handler using a dog who is not their partner may not be reliable. The dog may not obey this new handler and the handler may not have a correct interpretation of the dog’s actions. Although the dog may have been properly trained and could make reliable positive alerts, the dog sniff evidence may not be credible.
Overall, dog sniff evidence may be enough to establish probable cause, but it can and should be questioned. Drug attorneys should review the K-9 and its handler’s training thoroughly before accepting the handler’s testimony at face value.
Not every dog passes the smell test. Contact an attorney today to discuss the training of a dog sniff evidence team in Virginia.
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