Police Drug Dogs: When Can They Be Used for Search?

Spurred by higher arrest rates and favorable court decisions, the use of so-called “drug dogs” has increased dramatically in recent years. It is now quite common to see police cruisers or SUVs emblazoned with a telltale “K-9” mark that indicates the presence of a trained police dog inside the vehicle. Although not every law enforcement dog is trained to detect the presence of drugs, citizens who come into contact with any sort of police canine should assume that it is capable of sniffing out narcotics.

There are certain situations in which it is permissible for law enforcement officers to use drug dogs. Conversely, there are plenty of situations in which it is legally dubious for officers to do so. It is important that every citizen understands the difference between these situations. Those who possess this knowledge may be well-positioned to avoid an unlawful detention as well as the painful trial process that typically follows.

Legal Precedent for Drug Dog Searches

Thanks to the legal precedent set by a Supreme Court case known as Illinois v. Caballes, local, state and federal law enforcement agencies are allowed to use drug-sniffing dogs in certain situations. In reaching its decision, the Court’s majority used a bit of legal wizardry: While it agreed that the Fourth Amendment’s restrictions on “unlawful search and seizure” prevented cops from using drug-sniffing dogs without evidence of a crime, it also noted that citizens have no “legitimate privacy interest” in any illegal items that might be on their persons or in their vehicles. Due to their non-legal nature, the illegal drugs that an individual carries in his or her car are not accorded the same privacy protections as legally-obtained items like floor mats and road atlases.

If a driver does not consent to a physical search of his or her vehicle, a drug dog search may only cover the area around the outside of the vehicle. In other words, the arresting officer may lead the dog in a circle around the vehicle and wait for the dog to react to any scents that might emanate from it. If the dog signals that it detects the presence of illegal substances, the officer may legally demand a search of the interior of the vehicle. In other words, the dog’s affirmative reaction constitutes probable cause.

Caveats

However, the Court also circumscribed the manner in which law enforcement agencies may use drug-sniffing dogs. Crucially, an officer who lacks immediate access to a police dog may not detain a driver until a backup officer arrives with a drug-sniffing animal. If the officer suspects that a driver possesses drugs, but cannot provide probable cause to prove it, he or she must allow the driver to leave after issuing a traffic ticket. Any other action would constitute unlawful detention.

It is also important to note that the Caballes ruling forbids officers from conducting “warrantless searches” of pedestrians and bystanders in public spaces. In other words, an officer cannot simply lead a dog through a crowd and force anyone at whom the animal barks to consent to a search.

Mat Sharp is a criminal defense attorney at Sharp and Driver, Attorneys at Law in Houston, TX. They handle all levels of criminal cases throughout Texas, including DWI, drug charges and white collar crimes.