Pawing Their Way to the Supreme Court: The Evidence Required to Prove a Narcotic Detection Dog’s Reliability
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Historically, courts have given great deference to the anatomical scent detectors from which the canine’s heightened sense of smell derives. In 2005, the Supreme Court supported this position and held that a drug detection dog’s sniff did not constitute a search under the Fourth Amendment. The Court partially based its reasoning on the classification of the dog sniff as sui generis. With this holding, courts began admitting evidence of a drug detection dog’s alert to narcotics to constitute the requisite probable cause for an officer’s search. Virtually every circuit allows a canine alert to establish such probable cause by presenting the bare minimum of evidence that demonstrates the drug dog is reliable. This evidence must merely state the canine is “trained” and “certified.” Despite the overarching support federal appellate courts have for this position, state courts have begun to hold in favor of a much more assiduous method that is based on more detailed, objective evidence. These courts have held that evidence of the canine’s training and certification, an explanation of that certification and recertification records, field performance records, and evidence of the handler’s training are required in order to establish the canine’s reliability. This Comment argues that if the drug detection dog that alerts to the scent of narcotics is unreliable, the court determining whether or not that dog constituted probable cause for the officer’s search could not be aware of the dog’s unreliability without the objective evidence that state courts require. As such, these courts risk an unnecessary invasion of an individual’s privacy by allowing unreliable drug dogs to constitute probable cause in a search that, without the dog’s alert, would otherwise be a suspicion-less, warrantless, unconsented, and otherwise unlawful Fourth Amendment search. This Comment concludes by advocating for the totality of the circumstances requirement in order to ensure the constitutionality of searches incident to a canine’s alert to the scent of narcotics.