The answer to Jacob Sullivan’s question – where does a cop
with an 80-pound dog search – is anywhere the cop wants. At least
that’s what it looks like in theory, after the U.S. Supreme Court
unanimously ruled last month that an alert by a drug-sniffing dog gives
the cop probable cause to conduct a search.
In other words, all the cop has to do is say the dog alerted to the presence
of drugs in the vehicle – the magic words being “my dog alerted”
– and the car can be searched for drugs, and the defendant charged with a
Drug Offense should any drugs be found.
Sullivan quotes Justice Elena Kagan:
“[T]he dog may not have made a mistake at all,” Kagan said
in regard to the problem that drug-sniffing dogs don’t always get
things right. In other words, these dogs do false-positive sniffs all
the time, according to studies. But Kagan pushes that aside. “[T]he
dog may have detected substances that were too well hidden or present
in quantities too small for the officer to locate.”
So what we have is a shift in the burden of proof, according to Sullivan.
In theory, prosecutors won’t have to prove the reliability of a
dog’s alert. Instead, the defense will have to prove that the dog’s
sniffer was unreliable; otherwise, the dog’s alert will simply be
considered to have been enough for a cop to conduct a lawful search.