Probable Cause and the Sniff Factor

• Date: 01 September 2013
• Published date: 01 September 2013
• Author: Darrell L. Ross
• DOI: 10.1177/0734016813498974
• Subject Matter: Recent Legal Developments

Recent Legal Developments
Criminal Justice Review
38(3) 412-422
Probable Cause and the
ª 2013 Georgia State University
Reprints and permission:
Sniff Factor: Florida v. Harris
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DOI: 10.1177/0734016813498974
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and Florida v. Jardines
Darrell L. Ross1
Abstract
The U.S. Supreme Court has previously rendered only three opinions regarding the use of drug-
detecting dogs in formulating probable cause leading to a search. Yet, in their 2012–2013 term, they
published two decisions on the constitutionality of using drug detection dogs, establishing probable
cause, and performing searches. This article provides an assessment of the Court’s decisions in
Florida v. Harris (2013) and Florida v. Jardines (2013) and addresses the implications of these decisions.
Keywords
canines, drug-detection dogs, probable cause, search and seizure
Introduction
It is estimated that the close association between man and dog began in Europe over 12,000 years
ago (Sloane, 1955). Man has used dogs to assist in hunting and guarding livestock for years. For
centuries, man has used dogs in theaters of war dating back to early Egyptian times. The Romans
used dogs to harass the enemy, as sentries, and they were used as pack animals to carry supplies.
During World War II (WWII), dogs were used by the U.S. military for sentry duty, messenger work,
locating injured soldiers, for attacking the enemy, and as pack animals. The ‘‘Dogs for Defense’’
organization was established in 1942 after the bombing of Pearl Harbor and throughout WWII, and
the role of the dog expanded beyond sentry and messenger, to scout, to search and rescue, to assist
locating the enemy, and to reduce the number of casualties (Sloane, 1955). In every theater of war
since the Korean War, the U.S. military has trained and used dogs for varying purposes and since
September 11, 2001, canines have been instrumental in sniffing out bombs and explosives, working
with special operations teams, serving as a guardian for the troops, assisting in performing recon-
naissance with patrols, and used as a form of deterrence in Afghanistan and Iraq (CBS, 60 Minutes,
2013a).
1 Department of Sociology, Anthropology, and Criminal Justice, Valdosta State University, Valdosta, GA, USA
Corresponding Author:
Darrell L. Ross, Department of Sociology, Anthropology, and Criminal Justice, Valdosta State University, Valdosta, GA 31698,
USA.
Email:sdross@valdosta.edu

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Ross
413
Because of their extremely acute sense of smell and hearing, the use of dogs in police work
was a natural outgrowth from the military. The use of bloodhounds in the United States dates
back to the 1840s when they were used to track down criminals and slaves (Sloane, 1955).
Since the 1950s and with their success in the military, many metropolitan law enforcement
agencies have trained and implemented the use of canines in police work and their role has
expanded beyond tracking and attacking criminal suspects to include crowd control, drug detec-
tion, detecting explosives, criminal investigations, search and rescue operations, search for
human remains by cadaver dogs, accelerate detection in cases of arson, and for officer protec-
tion (CBS, 60 Minutes, 2013b).
As criminals have become more sophisticated in concealing and disguising drugs, the use of dogs
by the police has increased over the years. The United States Police Canine Association (2013)
reports that over 7,000 police canine teams operate in North America. It is highly common today
to see the words ‘‘K-9 Officer’’ on the side of a patrol car and to observe dogs working at airports,
bus and railroad stations, sporting events, and other locations requiring a police presence. Dogs alert
to many smells at a threshold well below that of humans. The research on the olfactory capacity of
canines shows that some dogs can detect odors when the particles in the air are at a concentration of
500 parts per trillion (Johnston, 1999).
A well-trained dog with a highly trained handler can assist in locating illegal concealed drugs
during a search on a traffic stop, search at school, residence, building, or other location requiring
a search. A drug-sniffing dog is successful in locating drugs with high frequency and aids law
enforcement in performing a search and judges have upheld the use of canines in performing
searches (Taslitz, 1990). Dogs undergo numerous hours of training and are trained to alert to the
presence of a particle of a substance and may alert to a large quantity or even to residual trace
amounts making them highly reliable. Even with their high degree of sensitivity, a drug detection
dog is not a gas chromatograph mass spectrometer and may alert even when drugs are not present
(Myers, 2006). This problem could occur when a vehicle is suspected of containing drugs but does
not, as the vehicle was previously used to transport drugs even if there are no drugs contained in the
vehicle. Further, a handler assuming that drugs are present may prompt the dog to alert in order to
justify the search.
Using a trained dog to perform a search can invoke a constitutional question of its reason-
able legitimacy and has been previously challenged by criminal defendants on the premise that
the officer lacked probable cause. The U.S. Supreme Court has repeatedly held that a sniff by a
trained drug detection dog is not a Fourth Amendment search (City of Indianapolis v. Edmond,
2000; Illinois v. Caballes, 2005; United States v. Place, 1983). Although these decisions
addressed the issue of probable cause and searches with the use of canines, the Court granted
certiorari to review two additional cases which involve the use of a drug detection dog while
performing a search in its 2012–2013 term. In Florida v. Harris (2013), the Court examined the
issue of whether a court should determine if the alert of a drug detection dog during a traffic
stop provides probable cause to search a vehicle. Further, in Florida v. Jardines (2013), the
Court reviewed the issue of whether using a drug-sniffing dog on a homeowner’s porch to
investigate the contents of the home constitutes a search within the meaning of the Fourth
Amendment.
Since its establishment in 1789, the Court has ruled on the issue of performing searches with the
use of canines on three occasions, yet in one term the justices reviewed two cases on the subject
underscoring the importance of their use. The war on drugs has used various strategies to combat the
problem, including the use of dogs. Trained drug detection dogs are an effective law enforcement
tool because of their superior ability to detect the odor of contraband. This article presents a review
of the Court’s decision in Harris and Jardines, an assessment of the distinctions between the deci-
sions, and presents a discussion on the implications of these holdings.

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Criminal Justice Review 38(3)
Prior U.S. Supreme Court Decisions and the Use of Canines
The Fourth Amendment states that ‘‘the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’’ In Illinois v. Gates
(1983) and affirmed in Messerchmidt v. Millender (2012), the Court ruled that probable cause to
search exists when there is a fair probability that contraband or evidence of a crime will be found
in a particular place. The standard does not require the same degree of certainty that is required
to determine proof of guilt or the preponderance of evidence (Maryland v. Pringle, 2003). Probable
cause to search is frequently based on an officer’s sensory observations, including a sense of smell
(United States v. Johns, 1985). This is allowed as distinctive odors emanating from a particular loca-
tion makes it fairly probable that the substance producing it is present.
The odor of drugs at a location provides a fair probability to search that location for drugs or evi-
dence of drug crimes. Each drug has a scent signature that includes a combination of molecules that
the dog is trained to recognize (Bryson, 2000; Taslitz, 1990). A dog’s keen sense of smell is superior
to a human and permits it to detect faint odors that are undetectable to humans and provides an even
stronger basis for probable cause to search the area for the odor’s source. The heightened sense of
smell makes a dog an important tool to law enforcement as the dog can alert to drugs well hidden or
can detect the odor of drugs masked by other scents. When the dog indicates that the odor of drugs is
present at particular location, there is probable cause to search. The dog is trained to recognize drug
scent and in terms of the chemistry of the drug, a dog alerts to the scent. Hence, a trained dog that
alerts is indicating that the odor shows presence of a drug, which underscores a fair probability.
Probable cause is not based on certainty and only a fair probability need exist to justify the search.
The mere possibility that a dog’s alert may have been to residual odor of drugs no longer present is
irrelevant. Drug residue by itself is indeed evidence of a crime (State v. Foster, 2011; United States
v. Ludwig, 2011).
In three previous decisions, the Court has examined the issue of establishing...