Guest post by Matthew Leach, Attorney at King Law Offices | North & South Carolina

The United States Supreme Court recently ruled on a drug sniffing dog case from Florida and the steps police can take to get probable cause for a search of a vehicle.[1]  To understand this recent decision, however, let’s examine some history.

In a 2005 Supreme Court case, the Court held “that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment.”[2]  This is partly based on the lower expectation of privacy that people have in their vehicles compared to, say, their homes,[3] and the increased mobility of automobiles, making the disappearance and destruction of evidence a larger concern.[4]  The Supreme Court’s approach to Fourth Amendment protections for drug sniffs is relaxed because of the lack of legitimate interest in possessing contraband (i.e., illegal drugs), and a drug sniff by a dog is being aimed only at the detection of such contraband.[5]  Regardless, the warrantless “search” by the dog must still “be carried out in a reasonable manner.”[6]

It is this “reasonable manner” of the search by a police officer relying on a drug sniffing dog that was the subject of dispute in the recent Supreme Court case.

The case dates from 2006 where a Florida officer, William Wheetley, executed a traffic stop on Clayton Harris because his license plate was expired.[7]  The officer approached the driver and, after observing a nervous demeanor and an open beer can, asked for permission to search the truck.[8]  The truck driver denied him permission to conduct the search (a “consent” search).[9]  At that point, the officer got the drug-sniffing dog, Aldo, out of his patrol car and brought him to Mr. Harris’s truck.[10]  Aldo then “alerted” to the presence of drugs on the drive side door.[11]  Based upon this alert, the officer determined he had probable cause to search the vehicle and found ingredients to manufacture methamphetamine (“200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze and a coffee filter full of iodine crystals”[12]),[13] which are not “drugs that could be sniffed.”[14]  Subsequently, “Harris was arrested and charged with possessing pseudoephedrine for use in manufacturing methamphetamine.”[15]

On appeal, Harris wanted the search tossed, claiming that the drug-sniffing dog did not give rise to probable cause to search the truck.[16]  Harris’s appeal, which was accepted by his state’s supreme court,[17] centered on the unreliability of drug-sniffing dogs.[18]  The Florida court wanted the police “to present training and certification records, field performance records, explanation of those records, and evidence concerning the dog handler’s experience and training.”[19]  The Florida court was concerned with the “growing body of evidence that dogs often make mistakes or are influenced by their handlers.”[20]

Indeed, in an interesting turn of events, the exact same officer pulled over Mr. Harris two months after the initial stop for a traffic infraction.[21]  Again, the officer deployed Aldo, who alerted to drugs in Mr. Harris’s car, again.[22]   This time, however, the officer’s search of the car turned up nothing.[23]

The Supreme Court, in a unanimous opinion authored by Justice Kagan, thought the Florida court demanded too much of police.[24]  The Court held that “courts should apply the same tests to dog sniffs they do when they look at other issues of whether police have probable cause to take an action.”[25]  This is a “totality of the circumstances” approach,[26] where the police are to consider “all the facts surrounding a dog’s alert, viewed through the lens of common sense… [and whether that] would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime… A sniff is up to snuff when it meets that test.”[27]

Defendants/Defense attorneys can still challenge a drug-sniffing dog’s search, however, by attacking the training methods of the dogs or that the certifications methods are too simple to attain.[28]

A companion case that is still to be decided by the US Supreme Court, though oral arguments have been made, centers on a drug sniffing dog’s detection at a person’s home, not automobile, and has caused greater concern for the Justices.[29]

The Fourth Amendment is an ever-evolving, complex area of American jurisprudence.  Criminal defense attorneys would be wise to stay tuned for the companion case to ensure they are best prepared in representing their clients in probable cause searches sparked by drug-sniffing dogs.  Criminal defendants would be wise to keep their criminal activities away from their automobiles.