Police K-9’s: Dog Sniffs for Drugs
“Positive K-9 ‘alerts’ are treated as per se probable cause in most states and in the federal courts, including the U.S. Supreme Court, when the K-9 is assumed to be ‘trained’ and ‘reliable’” writes Jeff Weiner, Esq., in his excellent review of police K-9’s and the Constitution for the National association of Criminal Defense Lawyers. In most courts, what this means is that probable cause for a drug search is deemed to have been established if the dog alerts on a location (e.g., a car trunk or a backpack) and the handler tells the judge that the dog had been properly trained to detect drugs and had a track record of reliability. The inquiry often ends there. It shouldn’t. Blind acceptance of a handler’s affidavit or testimony about training, certification or reliability misunderstands the nature of how K-9 units work.
Drug-sniffing dogs are trained to give a positive response (an “alert”) when they detect the odor of certain drugs. Alerts can be aggressive or passive, depending on how the dog was trained. An aggressive alert may be biting or pawing at the source of the scent. A passive alert may consist of sitting down and staring in the direction of the suspicious item (an observer might have to take the handler’s “word for it” that an alert had even taken place). K-9 handlers, like all dog trainers, use treats, toys and praise as rewards in the training process. When the dog correctly alerts to a substance, it gets a reward. The more “correct” alerts, the more rewards.
A “false alert” is a positive response in the absence of a substance the dog is trained to detect. When a drug-sniffing dog falsely alerts, handlers sometimes chalk it up to a “residual odor” of the drug. This creates a situation where the dog can simply never be wrong when it alerts: if the drug is found, then the dog was correct; and if no drug is found, then the dog was also correct because it must have detected the residual odor of a drug … even though no other evidence corroborates that the odor actually existed. A handler may choose not to record these purported residual odor situations as false alerts and may instead still claim the dog has 100 percent accuracy.
Using a drug-sniffing dog can be a way for some law enforcement agents to gain access to the trunk of a car in the absence of consent during a routine traffic stop. In a case I was involved in defending a few years back, my New York client was stopped in his car by a trooper on a deserted interstate in the deepest South, purportedly for driving too long in the left lane (but maybe because of his out-of-state license plates). The client was cooperative with the trooper, but politely refused to consent to a requested search of his trunk, explaining that while he had absolutely nothing to hide, he nevertheless valued his privacy rights. The trooper responded that his county was having a problem with narcotics coming from Mexico, and that the client would need to wait while a nearby K-9 unit was called to the scene. The client was told that he would be free to leave immediately if the dog didn’t detect any drugs. While waiting for the unit to arrive, the trooper began describing the dog’s traits: its perfect accuracy, its great size, its viciousness, its habit of going totally berserk immediately upon smelling any narcotics. It’s sometimes quite difficult to control the dog, the trooper said, and he had seen the dog destroy car exteriors and even get loose and attack motorists. Far better and safer for all concerned, the trooper helpfully suggested, for the client to consent to a search before the dog arrived. Despite the pressure, the client stood his ground.
Twenty minutes later the dog ceremoniously arrived. The trooper smiled as the dog and its handler walked silently around the car twice. Then the dog just sat down. After some whispered words between the trooper and the K-9 handler (who appeared to be shaking his head), the trooper dutifully informed the client that the dog had indeed detected drugs. The client strenuously protested, pointing out that the dog hadn’t even made a sound. The trooper smiled and said that this was a different, very quiet dog. The trooper took the car keys and opened the trunk, allegedly finding injectable anabolic steroids (but no narcotics of any kind). Whether the dog actually alerted at all is open to debate, but even if it did the response was a false alert. K-9 experts across the country could not confirm a single dog trained to detect steroids at that time (or even, to my knowledge, since), and there was no reason to believe that any substance upon which the dog had been trained was present. [The client was convicted by a jury but prevailed on appeal.]
K-9 units play a vital role in emergency response and public safety situations. However, it’s important for defense lawyers, prosecutors and judges to understand that a dog’s training and reliability should never be accepted without further inquiry and that it may be wise to revisit the question of whether a K-9 alert alone should be a sufficient basis for probable cause in a drug case. Meanwhile, if you or someone you know has been subjected to a K-9 search or if you have questions about drug-sniffing dogs, feel free to contact the lawyers at our firm at 516-294-0300.