Hi, I am Jeff Hampton with the Hampton Law Firm. Today I want to talk about drug dog searches. You may be shocked to learn what the United States Supreme Court says about whether a drug dog search is legal and what are some of the things you need to know in order to protect your rights if the police are attempting an illegal search.
By the way, if you wait around to the end of this video, I will also provide you with a free eBook on what to do if you have been charged with a crime in Texas. Okay, let us jump into this.
First of all, we know that the United States Constitution provides the Fourth Amendment, which says it protects you from unreasonable searches and seizures. Now, one of the tools that law enforcement uses—we all know how this works—they come to you, and they really want to talk to you, maybe they want to search, and they are going to ask you first if you will just consent to the search. If you consent to the search, then what they do is they use drug dogs as a tool to try to establish probable cause so that they can continue on with what they are going after, whatever they want to search for.
Right, so drug dogs are pretty normal nowadays. We see it all the time; they’re at airports, there’ll be stops that take place, you see them at sporting events sometimes, security events and things that take place, and so normally though, without an emergency circumstance, an officer must have probable cause to search a person’s belongings, such as their car or their house. Now, drug dogs are used by law enforcement in order to do just that.
Here is the key and we are going to get into this in a second, but if a drug dog violates your Fourth Amendment rights, your attorney, your criminal defense attorney can file what is called a motion to suppress to show that the search was illegal. And as a result of that, whatever was gathered as part of that search, whether it is drugs, whether it is a weapon, whether it is something else, that could be a basis of it being thrown out because that would now be illegally seized evidence.
Let us first talk about a couple of ways to attack a drug dog search. The number one way is to attack the drug dog’s activity itself. What if you want to attack the way that the drug dog is actually doing and performing the search? One of the things that we find is if there is a false alert or if there is a miss by the dog, you have to be careful of this because if the dog does not alert, here is what happens. If the dog does not alert, officers cannot search unless some other factor such as smell will give them separate independent probable cause. Even, and you see this happen all the time, you know, is it an actual smell, an alert, or is it the handler? Is it the actual officer who is creating the issue to begin with? Additionally, a miss.
What if there is a term called a miss where the drug dog handler, the officer is doing this, but the dog misses on the alert? Well, a miss is not enough evidence to infer that a dog is not accurate. Believe it or not, the Supreme Court has ruled that a dog, what they miss, could have smelled the residual odor of drugs that were previously on the person or in another vehicle.
Now why do I mention this? Because one of the things we find is there is a Supreme Court case known as Florida vs. Harris, a case that says this: the fact that a drug dog is not trained to detect a particular substance found in a vehicle and alerted to it anyway. Let us say they have not even been trained. So, number one, what if they missed it? We talked about that. If it still ends up being found, the court says that there can be a residual odor to it. If it ends up coming back and misses and alerts on it later, that is one way to get around it.
But then also, what if the drug dogs haven’t been trained? What if these dogs have not even been sufficiently trained on the substance that it found, but they alerted on it anyway? That is not enough, according to the court, to dismiss that dog’s reliability or the probable cause as a basis for alerting on it for that police officer. So, if a drug dog is just “certified,” so as long as that drug dog is certified, that is enough to create a presumption that the dog provided probable cause, even though there may be no uniform standards to determine whether a dog is sufficiently trained.
Think about this, how crazy that is, to think a drug dog may not even be trained to alert on certain substances, but as long as it alerts on something, it is okay. We are just going to call it probable cause just for the way it is. And that’s part of what the Supreme Court has said when you are trying to attack the way the dog actually did the search or whether that dog would be qualified to administer that search.
So, in Harris, here is what happened: in Florida versus Harris, the driver refused to give officers permission to allow drug dogs to sniff the car while he was pulled over for a routine traffic stop, and the officers walked a drug dog around the car anyway. Of course, the dog ends up alerting to some type of substance. The officers then search his car, and they find a drug that ended up being arguable as something that is a supply for methamphetamine. The particular dog the officers used to sniff the car was trained to detect other substances but not this substance. So, obviously in court, he argued at trial that the dog’s alert was a false alert because he was not even trained in order to be able to determine what that substance was to begin with.
Well, that raises a couple of problems, doesn’t it? One of the first problems it raises is there is a lack of uniformity in the training of these police dogs. In pretty much every state, it is done differently; it is not always done properly. Dogs are not trained on all these types of drugs.
And so, honestly, here is the next problem with it: what about the inaccuracy of drug dog results? Here are a few things: only 44% in a Chicago Tribune study they found that only 44% of dog alerts led to the discovery of actual paraphernalia or drugs. Now, this brings up a couple of issues. One, why could this be the case?
It could be number one because the dog handler itself, the actual officer, exhibits what they call “leading behavior,” where it is leading the dog to alert onto something and spending too long examining the car or leading the dog back to the same place over and over again, trying to get that dog to alert to something. That can lead to false alerts because if you have the dog continuing to go back over and over again, it can lead to a false alert.
Here is the other thing: dogs want to please their master; it is just the way it is. So, the dog wants to make the officer happy, and he has a relationship with him. So, what ends up happening is the desire to make the master happy and to receive the treat or whatever else that would happen, and sometimes these officers do that overtakes everything else. After it is over with, they praise the dog, right? They praise the dog for the behavior and what they did, and what ends up happening is it outweighs their sniffing capabilities. Essentially, they end up alerting just because they want to please their master.
And here is an example of this: it can lead to racial profiling. One example that we find in the Chicago Tribune, the accuracy of dog alerts for Hispanic drivers was 27%, which was even lower than the 44% on the average of the overall rate. And what does that mean? Essentially, there, you could infer that this means that dogs, in these cases, were noticing cues from their handler because that officer believed that this person would have drugs. So, they continue to bring that dog back over and over and over again, so now only 27% of the time is it accurate at all. I mean horrendous rates of accuracy, but yet still being able to be used as probable cause of the case.
So, how do you attack this? Why does this matter? Well, here is where it matters the most. Let us say the police officer comes to you and wants to pull you over on the side of the road and wants to have you consent to search. What do you do there? Well, here’s the reality of it: if the police officer pulls you over, let’s say for reasonable suspicion for a traffic violation, but they’re really trying to get to what’s in your vehicle, one of the first things they’re going to do is ask for consent to search your vehicle, and if you say yes and you give them consent, it cures everything.
In other words, it does not matter if they need what they need, they do not need a drug dog, they do not need anything, they can tear your car apart and search for what they need if you consent for them to do that. So, number one, it is really important: what do you have to gain by consenting in that situation? If you do consent, they do not need anything else, and so unless an officer already has probable cause, they will need your permission to search your vehicle or to allow a drug dog to sniff the outside of your car. So, if he is asking for permission to do either one of these things, you understand if you provide it to him, you have basically given him the keys to be able to do exactly that.
Now, one of the things that we find, though, let us talk about drug dogs and traffic stops in this particular instance. In Rodriguez vs. United States, here is what it says: it is a U.S. Supreme Court case that says unless police have reasonable suspicion of a crime, it is an unconstitutional seizure for them to extend a legal traffic stop in order to conduct a dog sniff. What does that mean? Let us say an officer pulls you over for speeding. Okay, now look, it is illegal for him to keep you sitting there on the side of the road for an hour or two hours in order to do a dog sniff if all he has to do is write you a ticket and send you on your way. Okay, so that, it is very clear, dog sniffs at a traffic stop are considered searches within the Fourth Amendment that require probable cause, and police cannot use a drug dog to obtain that probable cause unless they already have reasonable suspicion of a crime.
Here is the key: police authority for holding up your vehicle ends the moment they have finished the task for the traffic violation. So, let us say they write you your ticket; the moment they have written you your ticket, their authority to continue to extend that search begins to end at that point. In other words, if it only takes 20 minutes or 10 minutes to provide you with a speeding ticket, them holding you beyond that period of time would now be seen as unreasonable.
Okay, now that is really important because that is the context for which you would want to attack a case like this for a traffic stop. If they already have a dog, if the dog was not already there, and you have to wait for him to call it in, that is where you are looking to attack this because an unreasonable amount of time may have passed, and that may now be a violation of your Fourth Amendment.
Now what about drug dogs and airport luggage? Well, under the United States vs. Place, letting a dog sniff a piece of luggage at the airport is not even actually a search under the Fourth Amendment. So, the police do not need probable cause or a warrant to do any of that. That is legal.
And then the last thing I wanted to cover with you is what about drug dogs and your home? Well, now there is another case on this, Florida vs. Jardines, which basically says that an officer needs probable cause to bring a drug dog up onto your porch and up to your front door. There must already be probable cause before they bring that drug dog up to your house. And the reason is the courts did, at least, give some enhanced protection to someone’s home against search and seizure. So, a person has the right to some reasonable expectation of privacy in their own home, and that is why the courts have put that limitation on bringing drug dogs up to your residence.
There is an expectation of Privacy when it relates to your home, and this extends to the immediate area around the house known as curtilage, which is like your porches, your gardens, and all the surrounding area. The police cannot just show up and start bringing drug dogs around your house.
But notice the main area I am here telling you that you want to make sure and look into when it comes to your rights. Number one, it is shocking that an officer can use a drug dog that is not even adequately trained to establish probable cause. However, if you get pulled over in a traffic stop and a police officer is attempting to establish that probable cause based upon a drug dog that’s not there, and he’s holding you beyond the extended period of just writing you your ticket, that could be a basis for your criminal defense attorney to file a motion to suppress and potentially get that criminal case thrown out in court.
Okay, now listen, I hope this has been helpful for you. I want to offer you a free eBook: “What to Do If You Have Been Charged with a Crime in Texas.” If you click down into the link below, into the text portion of the YouTube video, I will be happy to provide you with that free eBook upon leaving your email address. And by the way, if you like this video, subscribe to our YouTube channel, like our video, we will send you more great content just like this, and leave a comment if you have a question about this. Look forward to seeing you in our next video series.