Post-Harris Guidance for Defense Attorneys Challenging Police Dogs

Abstract

Dogs are natural detectives whose sniffing skills have long been valued by police and the courts. This article will aid criminal defense attorneys in challenging dogs whose alerts led to the discovery of evidence being used against their clients. The U.S. Supreme Court’s recent decision in Florida v. Harris controls these cases and shapes the debate on police dog reliability.In Harris, the Court established a rebuttable presumption in favor of finding that a dog’s alert was sufficiently reliable to form probable cause to search for contraband. A dog is deemed reliable if he accurately detects drugs in controlled settings and is either certified to do so or has recently proved his sniffing skills in a training program. Defendants can rebut this presumption by challenging the alert in question, the adequacy of a dog’s certification or training program, or the team’s performance. A court will assess all the facts and determine whether the totality of the circumstances would lead a reasonable person to believe that a search following a dog's alert would reveal contraband. A dog’s reliability is a critical issue because the evidence obtained as a result of its alert may be necessary to the government’s case. If the prosecution relies on a dog that was unreliable or prompted to alert, the evidence should be suppressed. The government has several advantages, however, that make the Harris presumption a challenge to overcome. On the other hand, the opinion helps defense attorneys challenge particular dogs by identifying areas of factual inquiry that inform legal arguments in support of a motion to suppress evidence. This guide will prepare these attorneys by explaining the Harris framework and proposing a strategy addressing the relevant legal and factual issues.Part One considers the Court’s jurisprudence on drug-detection dogs and summarizes the Harris opinion. Part Two stresses the importance of making an aggressive challenge to a dog’s reliability. Part Three explains how to apply the Harris framework to a particular dog and identify a pattern of deficiency that can undermine its alert.