Use of Canines in Drug Investigations

Dogs have billions of olfactory cells that allow them to smell minute levels of odors. For many years, law enforcement agents have been using dogs to detect the presence of marijuana/pot and other controlled dangerous substances (CDS) in closed containers. In those cases, where a drug prosecution is grounded upon dog sniffing, there are a number of material issues that should be identified.

First and foremost, the dog sniff should be squared against the 4th Amendment’s prohibition against unreasonable searches and seizures. In this regard, it must be known that not every search or investigatory technique used by law enforcement agents is subject to 4th Amendment concerns. Most courts have concluded that dog sniffs do not violate the 4th Amendment because there is not an expectation of privacy in places where these sniffs usually occur and also because they are minimally intrusive. In some of these decisions, it is observed that the odor produced by the substance is discernible by the public and that it is of no moment that the dog has a more sophisticated olfactory system.

In some cases, however, it has been determined that dog sniffs are searches within the context of the 4th Amendment, where either the dog or its handler are in a location that they are not entitled to be in or where there is a heightened expectation of privacy. Thus, a 4th Amendment issue can be raised when a dog senses the odor of a CDS outside the door of an apartment or home, outside a student’s locker, or drug scented money on a person. On other occasions, courts have determined that the 4th Amendment had been violated where the defendant’s property was detained for an extended period of time in order to secure a canine scan. In one case, a 90 minute detention of luggage to allow a dog sniff was considered an unlawful seizure and the drugs located in the container was suppressed.

Another issue of equal importance is the need to test the reliable of the dog that conducted the sniff, as well as the capability of its handler. The Customs Service requires drug dogs to go through a 12 week training course where they must be perfect in their detections. Defense Lawyers should explore the exact training received by both dog and handler and the time spent in that training program. Simply because a dog has been trained and certified is not sufficient to validate the dog’s scent perceptions. Performance records of the dogs should be subpoenaed and analyzed. The Customs Service requires drug dogs to go through a 12 week training course and they must be perfect in their detections.

Dogs vary in their ability to accept, retain and abide by the conditions they received. All things should be done to determine if the dog was subconsciously cued by the handler. It’s a subconscious cues. In addition, scent dogs can produce false alerts because they can not differentiate between live scent and dead scents. Finally, environmental factor should be developed because they too can produce false/positive results.