Question: Does a law enforcement drug dog’s field performance record determine whether the dog’s alert provides probable cause to search a vehicle?
Quick Answer: Not really. Probable cause to search is based on the “totality of the circumstances.”
Facts: A K-9 unit officer on patrol stopped a vehicle for having an expired license plate. When the officer approached, driver Clayton Harris was visibly nervous: He was breathing rapidly, fidgety, and shaking. The officer noticed an open beer can inside the truck, which prompted him to ask Harris for consent to search the truck. Harris refused, so the officer walked his dog, Aldo, around the vehicle. Aldo alerted at the driver’s side door handle. The officer then searched the truck, finding 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, and other products that could be used for making methamphetamine. Aldo wasn’t trained to alert for these materials, only narcotics. Harris was arrested for possession of pseudoephedrine for use in manufacturing methamphetamine. He posted bail for this arrest and was stopped by the same officer on another date, this time for a broken tail light. The officer’s dog walked around Harris’ truck and again alerted to the driver’s side door handle. This time, the officer found nothing upon searching the vehicle. Harris later moved to suppress the evidence discovered during the officer’s first search based on a lack of probable cause.
At the suppression hearing, the officer testified to the different trainings he and Aldo had attended, how Aldo had previously received a certification in detecting specific narcotics, how the two took refresher courses together, and how they practiced weekly on Aldo’s detection skills. But the officer admitted that Aldo’s certification had expired a year earlier, and Aldo gave two false positives for detecting narcotics in Harris’ vehicle.
Why this case is important: The Supreme Court held that, when looking at the totality of the circumstances of the dog’s training and experience, the drug dog’s alert was enough to find probable cause to search Harris’ vehicle. Determining probable cause isn’t based on a rigid set of rules, so there is no specific “laundry list” that law enforcement must satisfy before a drug dog’s alert will provide probable cause to search. In this case, the officer didn’t keep a record of his dog’s field performance accuracy, but that’s not a requirement to satisfy the probable cause standard. The standard is about probabilities in specific factual circumstances. Here, even though the dog gave two false positive alerts to narcotics and there was no record of the dog’s field performance, the dog and officer had been through extensive trainings. Also, the dog performed “satisfactorily” during his weekly tests with the officer. This was enough to establish probable cause in this case because Harris didn’t challenge the dog’s training, only his performance during both traffic stops.
Keep in mind: If you don’t keep a log of your drug detection dog’s field performance, it won’t affect your ability to obtain probable cause from the dog’s sniffs. No one specific type of evidence is considered “the gold standard” of proving your dog’s reliability.
However, because courts consider the totality of the circumstances, you’ll need to be able to point to other factors that make your dog reliable: training, certifications, and continuous practice.
Visit the
U.S. Supreme Court’s website to view the entire opinion.