Dog Sniffs Can Establish Probable Cause for a Search; Defendants Must Contest Reliability in the Trial Court
Washington, DC (February 19, 2013) – In a disappointing decision, the United States Supreme Court today enshrined in law a dog’s wide latitude to determine Americans’ constitutional right to be free from unwarranted search and seizure. In siding with the dog in Florida v. Harris (No. 11-817), the Court misses the point. An alert by a “trained” or “certified” drug detection dog by itself should be insufficient to establish probable cause, as the National Association of Criminal Defense Lawyers (NACDL) argued in its joint amicus curiae brief to the Court in this case.
Real-world data demonstrate that even trained or certified dogs have a high rate of false alerts; indeed, they are inherently unreliable. Unfortunately, rather than embrace the more rigorous and rights-protecting standard set by the Florida Supreme Court, the U.S. Supreme Court today said the status quo is good enough and found that “a sniff is up to snuff” even in the absence of specific evidentiary requirements for the government to meet in order to be deemed to have properly relied upon a dog sniff.
NACDL President Steven D. Benjamin said, “This decision creates a presumption that a dog's behavior is sufficiently reliable, on police officer say so, to permit a warrantless invasion of a person's privacy. The problem with this holding is that it does not require the production of the performance and training records necessary for an accused or a court to independently assess the dog's true abilities. Instead of requiring the police to prove a dog's reliability, the decision flips the burden to the accused to prove unreliability, leaving the protection of privacy to those whose greater interest is in making the search. This is illogical, and offers no protection at all."
A link to NACDL’s joint amicus brief with the Florida Association of Criminal Defense Lawyers, the American Civil Liberties Union (ACLU), and the ACLU of Florida is available here.
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