Police dogs are typically trained to detect narcotics. Should we assume all police dogs perform at the same level in narcotics school?

I make the argument that defense counsel is entitled to police dog discovery. The defense should be allowed to access police dog and handler performance records. The defense, in a drug case involving a canine sniff, should be allowed to determine for itself the reliability of the dog that made the bust.

This post is not intended as a summary on the state of law in the area of police dogs and drug detection (that will come later). Right now, I just want to do my small part to stop the hemorrhaging.

Defense counsel may be discouraged from the recent line of Supreme Court Cases involving police dogs. Download a sample dog discovery motion, and figure out for yourself if Underdog or Odie made the bust in your case.

Police Dogs Don’t Search

We are now getting quite familiar with the process. A drug dog “indicates” the presence of drugs. Police working with the dog then conduct a warrantless search of the person, the car or the person’s stuff.

The Supreme Court says the canine sniff is not illegal because it is not a “search.” The actual police person search is legal because the police had a reason to conduct the search. The trusty police dog was the reason.

Florida v. Harris Didn’t Go all to the Police Dogs

Florida v. Harris, 133 S. Ct. 1050, 568 U.S. (2013) is one of the important cases on canine sniffs and police dogs.  The official PDF of the case can be found here.

This case established that the reliability of canine sniffs cannot depend on a strict evidentiary checklist. The Court said it is far better to determine reliability based on the “totality-of-the-circumstances.” See Harris, 133 S. Ct. at 1056. That is fancy talk for just considering each case independently based on the factors that are present. Cases will not be compared to a model case.

These key points from Harris cannot be overlooked:

• Defendant has a right to challenge police dog’s reliability
• Counsel may cross examine the police dog handler   Counsel may call his own police dog expert
• Adequacy of police dog certification or training may be challenged
•  Counsel can question the police dog’s performance and assessments
•  Counsel can question the handler’s performance in training
• Counsel may explore the police dog’s (or handler’s) performance in the field
• Normal rules of criminal procedure still apply (including discovery rules)

The test

…is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.

Harris, 133 S. Ct. at 1058.

Defense counsel is allowed to test whether the sniff was up to the snuff.

Lets Not Forget About Discovery Rules

There are at least two federal cases holding that defense counsel is entitled to some kind of “police-dog discovery.” See also Discovery in Criminal Law Cases.

United States V. Juan Pablo Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003)

The defense, in this case had filed a motion for discovery. They were looking for the “dog handler’s log, all training records, and score sheets, certification records, and training standards and manuals” pertaining to the dog. Cedano-Arellano, 332 F.3d 568.

The defense had retained an expert to review the dogs performance and training records. The appellate court agreed that the discovery was “crucial to [counsel’s] ability to access the dog’s reliability and to conduct an effective cross-examination of the dog handler.” Cedano-Arellano, 332 F.3d 568.

United States v. Thomas, No. 11-10451, August 8, 2013 (9th Cir. 2013); citing United States v. Cortez-Rocha, 394 F.3d 1115, 1118 (9th Cir. 2005) (these disclosures are mandatory when the government seeks to rely on a dog alert as the evidentiary basis for its search)

Here, the appellate court held it was error for the state to disclose heavily redacted records concerning the narcotics training received by the police dog. Thomas, No. 11-10451.

The defense was challenging the drug dog’s reliability and whether the “behavior the dog exhibited as a probable-cause-generating ‘alert’” was actually an alert. Tomas, No. 11-10451. The court noted that the question “is whether the redacted passages would have undermined the reliability of [the police dog] so as to defeat probable cause.” Tomas, No. 11-10451.

Because this question could not be answered, the conviction had to be reversed.

File a Police Dog Discovery Motion

The best way to find out if the sniffing skill in any particular police dog sniffing case is reliable is to file a motion for discover. The cases above make it clear that police dog discovery is covered by Federal Rule of Criminal Procedure 16(D) and (F). Most states have very similar rules.

For example, in Illinois, “[U]pon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court, in its discretion, may require disclosure to defense counsel of relevant material and information…” Illinois Supreme Court Rule 412(h).

A canine sniff resulting in probable cause for a search does not mean a case is indefensible. Yes, the case law generally favors the canine sniff. However, the same case law clearly outlines that rules of procedure and evidentiary rules still apply.

Use these rules to determine if a super reliable Underdog or an underperforming Odie made the bust in your case.

For more information, jump over to my resource page on police drug dogs.

More Information

For more information, jump over to my resource page on police drug dogs.