To Err is Canine? An Opportunity for a Challenge to Drug Sniffs in Pennsylvania

Filed under: Drug Crimes by Contributor @ August 4, 2015

Recently, the United States 7th Circuit of Appeals, a federal appeals court based out of Illinois, Wisconsin, and Indiana, released a decision (United States v. Bentley) that seriously throws into question the reliability of drug dog sniffs as a justification for a police search.

In that seminal case, the panel pointed out that the dog in the case had a terrible record of success–in fact, that if the dog’s training school had ranked the animals, this animal would be at or near the bottom.

So, the question remains: What role should the specific dog’s “performance record” play in a suppression hearing and are these dog sniffs reliable at all?

“Lex,” the name of the dog in the 7th Circuit case, indicates the existence of drugs 93% of the time.  He wrongly accuses in more than 40% of cases.   Interestingly, the dog was pulled out of service for a “two week refresher course” during the pendency of the case.  Apparently, he was being given treats when successfully showing the presence of drugs, a reward which in turn may have been skewing results and was being used by defense attorneys as evidence of bias.

Surprisingly, there are currently no “national standards” for dog sniff training or best practices.

Dogs that almost always indicate the existence of drugs give police a pretext for otherwise unjustified and illegal searches and seizures.   The United States Supreme Court has previously held in Florida v. Harris,  that, under the 4th Amendment, “[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, or if the dog has recently and successfully completed a training program that evaluated his proficiency, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search, using a “totality-of-the-circumstances” approach.”

Is it time that decision is revisited (unfortunately, the decision is only from 2013, and was unanimous, so this path seems unlikely)?  At the very least, should those interested in protecting our rights demand that there be some form of national standards to promote accuracy and reliability in practices and training?

As a counterpoint at the state level, Pennsylvania Courts treat all sniffs as a “search” under the Pennsylvania Constitution but have taken great lengths to distinguish between a canine search of a place and a canine search of a person, requiring only that reasonable suspicion exist for the first, but probable cause for the second.

If, as the 7th Circuit described, the canine sniffs are truly an unreliable free pass for law enforcement, should the use of the sniff in all cases be based at least on pre-existing probable cause or not used at all?

Pennsylvania defense lawyers should use this case and its underlying rationale to urge changes under Pennsylvania law, which has historically respected a higher floor for individual rights under the Commonwealth’s Constitution than that provided in the U.S. Constitution.

What do you think? Please feel free to write your comments on this page.

Leave a Reply

Required fields are marked *

Or contact me privately:

(215) 997-1000