By Nicole Deborde of Hochglaube & DeBorde Law Firm posted in Search & Seizure on Friday, February 22, 2013.
When can dogs sign a search warrant for drugs? This week, the U.S. Supreme Court ruled that dogs can provide probable cause for a search. The ruling in Florida v. Harris was unanimous. It is still possible that citizens accused will be able to challenge the reliability of the dog's perfomance based on the "totality of the circumstances". For example, challenges can be made to the adequacy of a dogs training, which will require a great deal of leg work on the part of the attorney making the challenge to the search where drugs or other evidence is involved.
Attorneys challenging the reliability of a drug dog's performance should be getting extensive records concerning the dog's training, the handler's record and training and performance of the dog. Is the dog prone to false positives or alerts? There is no way to know this without doing the work to find out. Usually, a combination of subpoenas and open records requests are necessary to get the underlying information which is unique to each case. If you have a situation where a dog is the one making the accusation that allows law enforcement to gain entry or conduct a search, make sure you have an attorney who knows how to fight these "dog sniffs" or "dog alerts". Even thought our Supreme Court seems to think it is perfectly fine to allow a dog to act as a warrant signing judge right on the scene, we cannot accept that at face value by assuming that the dog has been properly trained or works properly.
This new decision may give the prosecution a false sense of comfort in the reliability of this tactic. Unfortunately, charges involving all types of drugs have extremely serious consequences, whether it be marijuana or cocaine or any of a long list of drugs. Unless a citizen accused is willing to accept these consequences without questioning the assurances of a goverment law enforcement officer about his or her dog, a citizen accused faces a serious fight. Make sure your attorney is ready for that battle.