Last April, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The officer in Rodriguez completed a traffic stop for driving on the shoulder of a highway after checking the vehicle registration and driver’s licenses of the driver and passenger, conducting a warrant check, returning all documents, and issuing the driver a warning ticket. The officer then asked the driver for consent to walk his drug dog around the vehicle, but the driver refused to give his consent. Nonetheless, the officer told the driver to turn off the ignition, leave the vehicle, and wait for a second officer. When the second officer arrived, the first officer walked his drug dog around the car, and the dog alerted to the presence of drugs. A search of the vehicle revealed methamphetamine. Seven to eight minutes had elapsed from the time the officer issued the written warning until the dog’s alert. Continue reading
Tag Archives: drug dogs
Update on U.S. Supreme Court’s Ruling in Rodriguez v. United States Concerning Extension of Traffic Stops
Yesterday, the Supreme Court decided Rodriguez v. United States, an important traffic stop case that changes North Carolina law as it pertains to certain drug dog sniffs, and perhaps other investigative techniques as well. Continue reading →
I’ve had several questions about the role of drug dogs at motor vehicle checkpoints. The details are below, but a quick summary of the law is as follows:
(1) Officers can’t lawfully run drug dogs around every vehicle stopped at a checkpoint
(2) Officers can lawfully run drug dogs around cars that are pulled out of line for additional investigation, so long as the use of dog doesn’t substantially lengthen the stop Continue reading →
North Carolina’s appellate courts have recently issued two important opinions on the use of drug dogs, and the United States Supreme Court has granted certiorari in another drug dog case. This post summarizes these recent developments. Continue reading →
Today, most Supreme Court watchers are focused on the oral argument in the same-sex marriage cases. But the Court also released an important opinion in Florida v. Jardines, ruling that an officer conducts a Fourth Amendment search when he brings a drug dog onto the porch of a house to sniff the front door. Jardines is the second drug dog case of the Term, following Florida v. Harris, which I discussed here.
Facts. A Miami officer received a tip that marijuana was being grown in a specific residence. A “surveillance team” subsequently went to the residence. The officers saw no activity, so two, plus a drug dog named Franky, approached the house using the driveway and a paved path. As the dog neared the front porch, he began to “track” back and forth, apparently detecting the smell of drugs. He ultimately alerted at the base of the front door.
After a minute or so, the officers left, then obtained a search warrant based on the alert. During the ensuing search, they found marijuana plants. The defendant was present at the scene, and he was arrested and charged with drug trafficking.
The defendant moved to suppress, arguing “that the canine investigation was an unreasonable search.” The trial court agreed, the Florida appeallate courts split, and the case made its way to the Supreme Court.
Majority opinion. The Court divided 5-4, with Justice Scalia writing the majority opinion and ruling for the defendant. Justice Scalia based his reasoning on the “physical intrusion” theory of the Fourth Amendment that he advanced in United States v. Jones, 565 U.S. __ (2012), the GPS tracking case. He viewed the case as “straightforward,” because the officers entered the curtilage of the defendant’s home seeking to gain information. (I blogged about Jones here.)
Justice Scalia rejected the argument that there was an “implicit license” for the officers to approach the home with Franky. He stated that custom “typically permits [a] visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” but does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around. In other words, the scope of the implicit invitation that allows visitors to come to the front door of a home “is limited not only to a particular area but also to a specific purpose.”
Finally, Justice Scalia distinguished Illinois v. Caballes, 543 U.S. 405 (2005) (holding that the use of a drug dog during a traffic stop does not violate the motorist’s reasonable expectation of privacy because the dog can only detect contraband). He emphasized that the Jones physical intrusion test is a separate analysis from the reasonable expectation of privacy test. Therefore, even if the use of a drug dog cannot impinge on a reasonable expectation of privacy, it can – and in this case, did – constitute a physical intrusion.
Concurrence. Justice Kagan wrote a concurrence arguing that the case could also be decided for the defendant under the reasonable expectation of privacy test, comparing the use of a drug dog to a situation in which “[a] stranger comes to the front door of your home carrying super-high-powered binoculars” and uses them to peer into the recesses of your dwelling, thereby exposing what you reasonably believed was private.
Dissent. Justice Alito wrote the dissent. He reasoned that visitors, welcome or not, friends or peddlers, have an implied “license to use a walkway to approach the front door of a house and to remain there for a brief time,” regardless of their purpose. And he found this case indistinguishable from a “knock and talk,” which both sides agreed are permitted and which also involve an officer approaching the front door of a residence with the intent to gather evidence. He also rejected Justice Kagan’s expectation of privacy theory.
Comments. A few brief thoughts about the significance of the ruling:
- Lineup. The lineup of Justices was interesting, with Justices Thomas, Ginsburg, Sotomayor, and Kagan joining Justice Scalia, and the Chief Justice and Justices Kennedy and Breyer joining the dissent. The case once again illustrates the fact that Fourth Amendment cases make strange bedfellows.
- Apartments. The Court didn’t ponder how its ruling would apply to apartments, townhouses, and other kinds of dwellings. Since some residences have no curtilage at all, it may be that a drug dog can be deployed at their front doors, while the same conduct is prohibited at a detached home.
- Backyards. Both the majority and the dissent noted that visitors’ implied license to approach a home extends only to the front entrance. As Justice Alito put it, “[a] visitor must stick to the path that is typically used to approach a front door,” and may not “meander into the backyard.” That may call into question some officers’ practice of going to the back door if no one answers the front door. (I addressed this issue here.)
- New theory. If there were any doubt after Jones about the importance or durability of the physical intrusion theory, this case settles it. It’s a major development in Fourth Amendment doctrine.
Yesterday, the Supreme Court decided Florida v. Harris, holding that when a trained and certified drug dog alerts on a vehicle, that normally provides probable cause to search the car, even if there are no records proving that the dog has previously performed well at detecting drugs in the field. I mentioned Harris in my Supreme Court preview, here, and in a long prior post about the reliability of drug-sniffing dogs, here, so I have been awaiting the opinion.
Facts. The case arose when a Florida K-9 officer executed a routine traffic stop on the defendant’s truck. The defendant appeared nervous and there was an open beer can in the vehicle, so the officer asked for consent to search. The defendant refused. The officer walked his drug dog around the vehicle and the dog alerted. The officer searched based on the alert; he found no drugs but did find 200 pseudoephedrine pills, 8,000 matches, and other ingredients for manufacturing methamphetamine. The defendant was arrested and charged based on possession of those ingredients. Later, while the defendant was out on bail, the officer stopped him again for a traffic violation, the dog alerted again, and the officer searched again, but found nothing of interest in the vehicle.
Motion to suppress. In court, the defendant moved to suppress the pseudoephedrine and other items found in the initial search. The state showed that the dog had completed a 120-hour police-run training course; that the dog had previously been certified by a private dog training and testing outfit, though this certification was not required by law; and that the officer and the dog undertook various refresher training from time to time, during which the dog performed well.
The defendant argued that while the dog may have been trained in drug detection, his certification had expired and his performance in the field was poor, as reflected in his two alerts on the defendant’s narcotics-free vehicle. Thus, the defendant maintained, the dog’s alerts did not provide probable cause to search. The officer admitted that he did not keep complete records of the dog’s field performance, but argued that the dog likely alerted to the defendant’s vehicle based on a residual odor of methamphetamine.
Lower court rulings. The trial court denied the motion and, after the defendant pled no contest and appealed, an intermediate appellate court affirmed. The Florida Supreme Court reversed, ruling that records reflecting how often the dog “alerted in the field without illegal contraband having been found” were necessary to determine whether the dog’s alert provided probable cause.
Supreme Court ruling. The United States Supreme Court granted certiorari and again reversed. The Court unanimously held that:
- Probable cause must be assessed using common sense and under the totality of the circumstances
- Requiring a checklist of particular evidence, such as a dog’s field performance records, is the inconsistent with a totality-of-the-circumstances approach
- Field performance data is imperfect because it may understate a dog’s false negatives (as the dog’s failure to alert usually will result no search being conducted and so no drugs will be found even if they are present) and may overstate a dog’s false positives (because, for example, a search based on an alert may fail to reveal drugs that are present but well hidden)
- Controlled testing of dogs is a “better measure” of their reliability, so if the state can show that a dog performs well at detecting drugs in a controlled setting, and a defendant fails to contest that showing, that is enough to show that the dog’s alert provides probable cause
- The defendant may contest such a showing by contesting the training and testing standards, by presenting fact or expert witnesses, or by contesting the particular alert (for example, by showing that the officer cued the dog to alert)
- In this case, the state’s evidence about the dog’s training and proficiency in finding drugs amply supported a finding of probable cause, and the defendant’s response was focused on only two alerts, which may have been explained by residual odors and were, in any event, hindsight
Further litigation? I suspect that the Court’s opinion will spark litigation about drug dogs, because it provides a framework for presenting and analyzing challenges to dog alerts. And the Court’s opinion leaves plenty of questions unanswered. For one thing, it refers to training or certification conducted by a “bona fide” organization without explaining how to know whether an organization is “bona fide.” How extensive must the organization’s testing be? How realistic? How much experience must the organization have? My understanding is that the field of drug dog training and testing isn’t regulated or standardized, so there may be great variability between programs.
Further reading. Perhaps along similar lines, professor Orin Kerr’s reaction to the opinion is that “the Court . . . said there is no particular test [for probable cause] and then created a particular test: Certification from a ‘bona fide’ organization . . . or ‘recent and successful’ completion of a training program creates a presumption of probable cause.” SCOTUSBlog’s summary of the case is here. The Washington Post covers it here.
The Court has not yet ruled on the other drug dog case it heard this Term, Florida v. Jardines, involving the use of a drug dog to sniff the front door of a residence. Stay tuned.
Last week, I wrote about the North Carolina Court of Appeals’ holding in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120 (2012), that a drug dog’s positive alert to a motor vehicle in which no drugs were found did not, by itself, provide probable cause to search the person of a recent passenger in the vehicle. A couple of folks have inquired post-Smith about whether the police can search an individual if a dog alerts to the person as opposed to a car in which the individual recently has been traveling. Smith does not address this issue, but other courts have and I thought it was sufficiently interesting to warrant a follow-up post.
First, a brief re-cap of the status of dog sniffs under the Fourth Amendment: The United States Supreme Court held in Illinois v. Caballes, 543 U.S. 405 (2005), that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment. Caballes relied in part on the high court’s determination in United States v. Place, 462 U.S. 696 (1983), that a canine sniff of luggage in an airport by a well-trained dog was not a search within the meaning of the Fourth Amendment and its application in City of Indianapolis v. Edmond, 531 U.S. 32 (2000) of that principle from Place to exterior sniffs of cars by drug dogs. The Caballes Court, like the Court in Place and Edmond, reasoned that properly conducted drug dog sniffs are designed to reveal only the presence of contraband. Given that a person has no legitimate interest in possessing contraband, neither the dog’s sniffing of the car nor its subsequent alert compromises a constitutionally protected privacy interest. Thus, police may conduct such searches without the requirement of individualized suspicion.
To anyone who shares my healthy respect (read: fear) of the types of dogs employed by police to detect narcotics, it probably seems a forgone conclusion that a different analysis applies to a dog’s search of a person, which is far more intrusive (read: frightening) than a dog’s sniffing of an object. In the words of one of my former law professors, Arnold Loewy, “the very act of being subjected to a body sniff by a German Shepherd may be offensive at best or harrowing at worst to the innocent sniffee.” Arnold H. Loewy, The Fourth Amendment As A Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1246-47 (1983). Indeed, in certain circumstances, courts have considered such person-sniffs to be Fourth Amendment searches. In United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), for example, the Fifth Circuit held that the canine sniff of the defendant, which included the dog touching the defendant’s groin area, on the pedestrian walkway of the bridge connecting Laredo, Texas to Nuevo Laredo, Mexico, was a search under the Fourth Amendment. Because, however, the canine sniff amounted to a routine border search that did not “‘seriously invade the traveler’s privacy,’” the court determined that no individualized suspicion was required before the dog lawfully could sniff a person crossing the bridge. The Fifth Circuit likewise concluded in Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 476 (5th Cir. 1982), that drug dogs’ sniffing of children in a school, as part of an effort to prevent the abuse of drugs and alcohol, was a Fourth Amendment search that required individualized reasonable suspicion. The dogs in Horton—Doberman Pinschers and German Shepherds—walked down the aisles of classrooms and sniffed students, putting their noses against the people they were investigating.
In contrast, the Fifth Circuit determined in United States v. Reyes, 349 F.3d 219 (2003), that an unintentional non-contact sniff by a dog that was four feet away from the person when he alerted was not a search within the meaning of the Fourth Amendment. The dog in Reyes alerted as the defendant departed a bus that the officer intended to search once the passengers were off. The court reasoned that because the dog was not in close proximity to the defendant when he alerted, the sniff was minimally intrusive and thus not constitutionally cognizable.
Dog sniffs of people that amount to Fourth Amendment searches and are supported by individualized suspicion or otherwise qualify under an exception for warrantless searches not supported by particularized suspicion still must be carried out in a reasonable manner. See, e.g., Schmerber v. California, 384 U.S. 757, 771 (1966) (evaluating whether blood test permitted under exception to warrant requirement was performed in a reasonable manner); see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard). The manner in which the dog alerts unquestionably plays a role in the reasonableness analysis. The search by the dog in Kelly, which the Fifth Circuit deemed a routine border search, was performed by a “‘passive alert’” dog that was trained to sit down or exhibit some other change in behavior when alerting as opposed to scratching or biting at the area of the contraband. The dog sniff in Reyes, which the Fourth Circuit did not consider a Fourth Amendment search, was followed by a more aggressive alert, in which the dog pulled on his leash so as to follow the defendant while barking at him. I am doubtful that a dog alert that involved scratching or biting a suspect would be deemed reasonable under the Fourth Amendment.
North Carolina dog-handlers and criminal law aficionados, write in and let us know whether dogs in this state are trained and employed to sniff people, how they alert, what policies govern this practice, and how our trial courts have analyzed such searches. Dog lovers, before you send in your comments defending the breeds mentioned in this post, I’ll note that after reading Susan Orlean’s recent book, Rin Tin Tin: The Life and the Legend, German Shepherds are slightly less scary to me (at least on paper).
Last August, the court of appeals in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120, temp. stay granted, __ N.C. __, 731 S.E.2d 179 (mem.) (2012), decided an issue of first-impression related to a drug dog alert and the reasonableness of an ensuing Fourth Amendment search. Since we haven’t yet blogged about Smith, which is doubtless of interest to folks interested in North Carolina criminal law and is fresh in my mind as a result of my recent preparations for a fall criminal law case update, I thought I’d pen a few words about the case.
The defendant in Smith and two other men were standing outside a 1972 Chevrolet in a gas station parking lot around 11 p.m. on September 11, 2010, while the driver of the car, Leach, pumped gas. The defendant stood next to the right front passenger door and another passenger, McCray, stood by a rear passenger door. Officer McDonald of the Winston-Salem Police Department approached the car—not to ask the question on my mind – “Who is your mechanic?”―but instead to tell Leach that the music playing inside the car was too loud. McCray apologized, reached into the vehicle, and turned the music down. Officer McDonald asked for Leach’s driver’s license and the vehicle registration, returned to his patrol car, and requested an additional unit. Two other officers arrived and asked the passengers for identification. Officer McDonald checked the defendant’s criminal history and found “‘an extensive local record which included numerous drug offenses,’ including possession of marijuana in June 2010.” Based on the criminal histories of all three men, Officer McDonald requested the assistance of a K-9 officer. He then began to prepare a citation for a noise ordinance violation. At this point, Leach and McCray “became verbally aggressive with the officers,” and were warned about their conduct. Defendant remained calm. McCray left the gas station.
The K-9 officer and drug dog arrived after Officer McDonald had returned Leach’s driver’s license and the vehicle registration and had begun to explain the citation. At this point, twenty minutes had expired since the officer first approached the men. Officer McDonald placed Leach and the defendant at the back of his patrol car while the dog sniffed the outside of Leach’s car. The dog alerted at the driver’s door.
Officer McDonald then searched the car, finding an open container of alcohol in the back seat but no drugs. The other officers searched Leach and the defendant. An officer discovered cocaine on the defendant, and the defendant grabbed the cocaine and threw it. The defendant was indicted for felony possession of cocaine and for resisting a public officer.
The defendant moved to suppress the drugs as the fruit of an unlawful search of his person. The trial court granted the motion and the State appealed, arguing that the drug dog’s alert to the motor vehicle provided probable cause to search the vehicle and its recent occupants for the source of the odor. Noting at the outset that the search of the motor vehicle following the drug dog’s alert was proper, the appellate court characterized the issue of whether a drug dog’s positive alert provided probable cause to search the person of a recent passenger of the vehicle who was outside the vehicle at the time of the alert to be a question of first impression.
The court distinguished the first authority cited by the State, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), in which the Tenth Circuit held that a positive alert given by a drug dog followed by a negative search of the vehicle provided probable cause to arrest the defendant-driver. The Smith court noted that Anchondo did not specify whether the defendant was inside or outside of the vehicle at the time of the search. In addition, the positive alert in Anchondo was made on the defendant’s own motor vehicle, unlike the alert in Smith, which was an alert for a vehicle in which the defendant merely had been a passenger. The North Carolina Court of Appeals noted that several other state courts had rejected Anchondo, including the Supreme Court of Kansas in State v. Anderson, 136 P.3d 406 (Ka. 2006), which concluded that officers lacked probable cause to arrest the driver of a vehicle after a drug dog alerted and no drugs were found in the vehicle.
The Smith court found the logic of Anderson and of the Virginia Supreme Court in Whitehead v. Commonwealth, 683 S.E.2d 299 (Va. 2009), more persuasive than Anchondo. The defendant in Whitehead was right rear passenger in car stopped for traffic violation. While the Whitehead defendant and others were in the car, a drug dog led around the car alerted. When the search of the vehicle turned up empty, the officers searched the occupants. Whitehead had drugs on his person. The Virginia Supreme Court held that, absent some additional incriminating factors, a positive canine alert as to motor vehicle on its own does not establish probable cause sufficiently particularized as to a passenger to allow the search of his or her person. Relying upon United States v. Di Re, 332 U.S. 581 (1948), and Ybarra v. Illinois, 444 U.S. 85 (1979), Whitehead ruled this sort of mere proximity to criminal activity insufficient to establish probable cause.
The court of appeals in Smith similarly concluded that defendant’s having been a passenger in a motor vehicle as to which a drug dog alerted and which was found to contain no contraband did not, without more, provide probable cause to conduct a warrantless search of the defendant’s person. Thus, the court of appeals affirmed the trial court’s ruling granting the defendant’s motion to suppress.
It is not clear how Smith applies to facts that differ even in relatively minor ways from its own. For example, could the officers have searched the defendant had he been inside the vehicle when the dog alerted? I’m doubtful that a post-Smith court would find such a search supported by probable cause, absent additional particularized suspicion, but Smith does not squarely address this issue. On the one hand, Smith cites as support Whitehead, a case in which the Virginia Supreme Court found that a drug dog’s alert to an occupied motor vehicle did not, standing alone, establish probable cause to search a passenger who was in the motor vehicle. On the other hand, without intimating disagreement with the Virginia Supreme Court’s reasoning, Smith characterizes Whitehead as creating a “stronger case for probable cause” than existed in Smith.
What if the defendant in Smith had been the driver of the vehicle? Would the dog’s alert, the search that came up empty, and the defendant’s control of the car have provided probable cause to search his person? Smith does not answer this question. Perhaps the Smith court’s reliance upon Anderson, a case in which the Kansas Supreme Court concluded that the search of a driver was unsupported by probable cause where it rested merely upon the fact that a drug dog alerted to the driver’s car and no drugs were found in the vehicle, indicates that it too would find such a search unlawful. Yet the Smith court’s repeated references to the defendant’s status as a passenger in the vehicle make it clear that the court left this question unresolved.
A few weeks after Smith was decided, the state supreme court granted the State’s request for a temporary stay. Stay tuned to see if the state’s high court agrees to review the case.
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 (10th 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 (4th 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.