North Carolina Criminal Law NC Criminal Law

This recent post by Professor Orin Kerr reports on an emerging split of authority on what the state needs to show about the training and experience of a drug-sniffing dog before a dog’s alert will provide probable cause – to search a car, for example, or to support the issuance of a search warrant for a briefcase. Professor Kerr first cites United States v. Ludwig, __ F.3d __, 2011 WL 1533520 (10^th Cir. Apr. 22, 2011), which says that it is not necessary to “mount a full-scale statistical inquisition into each dog’s history.” Rather “courts typically rely on the dog’s certification as proof of its reliability,” at least as long as the certifying authority is not a sham. He then cites Harris v. State, __ So. 3d __, 2011 WL 1496470 (Fla. Apr. 21, 2011), which holds that “evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.” Therefore, according to the Harris court, the state must present “the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability.”

Although not discussed by Professor Kerr, the Oregon Supreme Court recently weighed in on this issue as well. In the companion cases of State v. Foster, __ P.3d __, 2011 WL 1312159 (Or. Apr. 7, 2011), and State v. Helzer, __ P.3d __, 2011 WL 1312105 (Or. Apr. 7, 2011), the court held that

an alert by a properly trained drug-detection dog can provide probable cause to search. Whether such an alert does so in a particular case will depend on an individualized assessment of the totality of the circumstances known to police that bear on the dog’s reliability in detecting drugs. Those circumstances usually will include, but are not limited to, the dog’s and its handler’s training, certification, and performance in the field. The state has the burden, upon a proper challenge by the defendant, to demonstrate that the dog’s alert was sufficiently reliable to provide probable cause to search.

Helzer at *1. The announced standard appears to be a fairly high hurdle. For example, in Helzer, the court found inadequate proof of reliability where the record showed (1) that the dog was initially trained by a private organization called Code Three Canine, (2) that the officer completed 114 hours of training offered by Code Three Canine regarding how to work with the dog, (3) that the officer then trained with the dog individually for an additional 300 hours, (4) that the officer and the dog completed a 32-hour certification course “with the Oregon Police Canine Association (OPCA), which is a private organization,” and (5) that the officer provided “documentation of alerts in the field over a several-month period . . . [though he] kept no records . . . of deployments in which [the dog] did not alert.”

Those interested in additional reading about the reliability of drug-sniffing dogs might check out this article, published by the National Association of Criminal Defense Lawyers, this CBS News piece, or Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L. J. 405 (1996-97). If you’re aware of other relevant studies, please post a comment.

Where does North Carolina stand on this issue? As far as I can tell, the leading – and perhaps the only meaningful – case is State v. McDaniels, 103 N.C. App. 175 (1991). McDaniels is a drug trafficking case in which a dog alerted on a briefcase associated with the defendant. Law enforcement obtained a search warrant for the briefcase based in part on the alert, and the defendant contended that the warrant wasn’t supported by probable cause. The court of appeals disagreed, stating that probable cause is to be determined under the totality of the circumstances and that “[t]here is no . . . independent requirement that an informant – here, defendant argues, the dog – be proven reliable.” Nonetheless, the dog, which was “certified by US Customs,” was characterized by the court as “well trained and exceptionally skilled,” apparently based on the officer’s testimony “about his experience with [the] dog, the only one used by the SBI at that time, [and] the dog’s qualifications and excellent track record.”

I don’t find McDaniels to be very illuminating, partly because it was decided before there was a significant body of law on this issue, and partly because there were enough other circumstances supporting probable cause in that case to make the reliability of the dog’s alert less than critical. Furthermore, there may be some tension between the relatively deferential approach to drug-sniffing dogs in McDaniel and the seemingly more demanding body of law about the use of scent-tracking dogs. See, e.g., State v. Irick, 291 N.C. 480 (1977) (establishing several threshold requirements for the introduction of bloodhound evidence, including that “they are of pure blood, and of a stock characterized by acuteness of scent,” that they “have been accustomed and trained to pursue the human track” and that “they have been found by experience reliable in such pursuit”); State v. Walston, 193 N.C. App. 134 (2008).

Still, McDaniel appears to be closer to the Ludwig side of the ledger than to the Harris, Foster, and Helzer side. It’s also worth noting that the Fourth Circuit has taken more-or-less the Ludwig view in an unpublished opinion. United States v. Wu, 2007 WL 412169 (4^th Cir. Feb 2, 2007) (holding that “evidence of [a drug-sniffing dog’s] training and certification was enough by itself to establish [the dog’s] reliability”). Interestingly, in Wu, the several alerts that were used to establish probable cause all turned out to be false – the packages in question contained no drugs, but contained electronics that turned out to have been fraudulently acquired. It’s surprising that Wu wasn’t published given its significance on a disputed Fourth Amendment issue.

The bottom line is that this is a disputed and rapidly-evolving area of law. In North Carolina, McDaniel probably gives the state the upper hand for now, but it certainly isn’t an unassailable stronghold. This issue might be one that would pique the interest of our state supreme court, given its demonstrated concern about the reliability of techniques used to detect and identify controlled substances.