Don’t Let a Dog’s Nose Fool You
Video Transcribed: Drug dog myth number one. High sense acuity means higher reliability. I’m Tulsa lawyer James Wirth. I’m doing a series regarding myths related to drug dogs, specifically in Oklahoma, but also elsewhere. And the first one is that because they are very good at smelling, the better they can smell, the higher the reliability in detecting drugs and determining probable cause for a search after a vehicle is stopped. So basically dogs in Oklahoma K-9s can be used as kind of a probable cause machine because we’re talking about 4th Amendment issues. That’s where we’ve got somebody who is driving down the road. They get pulled over by police based on a bag tag or something. So there’s some legal basis for the stop, but then the officer wants to search the vehicle. And the 4th Amendment is pretty clear. If you don’t have a warrant, then a search is per se unreasonable under the 4th Amendment unless it falls within certain exceptions.
One of those exceptions is the automobile exception. And that says that since the car is mobile, the officers can’t wait to get a warrant because the car’s going to be gone by then. However, it’s not just that it’s an automobile that gives you enough of the exception. You also have probable cause. So it’s automobile plus probable cause. So how do you get that probable cause? That’s where the drug dog comes in. They run a drug dog around. They allege that it alerts and that sniff, that open-air sniff outside of the vehicle that is determined not to be a search under the 4th Amendment. So it does not violate the 4th Amendment so they can do that without a warrant. And then if it alerts, then they determine that that is probable cause to go ahead and do the search without court oversight until later. So that’s what we’re talking about here.
The myth is that because dogs have very high acuity in their sense of smell, that means that they are more reliable. But that is a myth. A myth, and it’s a myth because their actual, sense acuity is actually so high that it causes lots of problems. We see lots of circumstances where a drug dog may alert, but no contraband is found, and the response to that is that they’ll get is, “Well, there must have been something in there previously, or there must have been some sort of transference.” Basically, there’s a minute amount of the scent and that’s what the dog is smelling, but it could cause them to alert when there’s not actually any contraband or crime being committed.
So we’ve actually done some prelims on this recently where we’ve had handlers for K-9s testify that if there is a crackhead at Walmart who’s trying to open up all these cars, see which cars open, just by the fact of grabbing that door handle, that’s going to put enough scent on that car that a drug dog could alert to it. Their sense of smell is so good that it means they’re alerting when there isn’t even contraband. There’s just a slight smell of contraband. Sometimes people say, “I think there are scientific reports out there that indicate that dogs can smell 40 times better than humans.” But we’ve seen people testify, handlers testify they can smell 100 times better, 1,000 times better, even 1 million times better.
But the fact that they can smell better and more does not make it more reliable for determining whether there’s probable cause that a crime has been committed. And that is where this is a myth. The fact is that their sense of smell and acuity in the sense of smell is so high, it decreases the reliability because they are alerting where the amount is so small that it’s not contraband, it’s not illegal, it’s not a crime that’s being committed. So that is our first myth being busted there regarding drug dogs.
If you are involved in a scenario where you’re being prosecuted based on a drug dog’s alert, you may want to look into that more closely. You’re certainly going to want to talk to an Oklahoma drug crimes attorney about that. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.