Probable Cause on a Leash

Abstract

In 1970, the U.S. government started using dogs to identify illegal substances as part of President Nixon's war on drugs. Each year drug detection dogs account for $2 to $3 billion worth of drug seizures, including heroin, amphetamines, cocaine, hashish, marijuana, and ecstasy. These drug detection dog programs are also responsible for the forfeiture of many additional millions of dollars worth of personal property associated with criminal activity. For example, one German shepherd named Dandy has led authorities to over $1 billion dollars worth of illegal substances over a six-year period in Southern California. Another detection dog named Trep has detected $63 million worth of illicit drugs over a two-year period in Miami. Law enforcement has substantially increased its utilization of drug-sniffing dogs in recent years. Moreover, on a number of occasions the Supreme Court has supported the use of dogs to detect contraband without requiring probable cause.

This article develops in four parts. Part II of this article explores the historical evolution of Supreme Court case law and the Court's recent decision in Florida v. Harris. This article attempts to explain the Court's standard in Harris by looking to prior case law and discusses why courts should interpret the holding in a way that allows defendants to challenge the legitimacy and accuracy of training and certification programs. If applied incorrectly, Harris would violate the Fourth Amendment by allowing searches supported by less than probable cause.

Keywords: Criminal Procedure, Probable Cause, Fourth Amendment, Drugs, Narcotics, Drug-sniffing Dogs, Drug Detection Dogs, Canines, Criminal Law, Search and Seizure

JEL Classification: K14