Lerner & Lerner, P.C.

Former prosecutors with more than 50 years combined experience

Nassau County Criminal Defense Lawyers
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Drug-sniffing dogs and warrantless searches

In many New York drug cases involving car stops, law enforcement officers rely on drug-sniffing K-9 dogs to detect the presence of illicit substances. If a dog hits, the positive sniff test has been historically considered to be sufficient probable cause for the police to then conduct a warrantless search of the vehicle and its occupants.

A recent case in the U.S. Court of Appeals for the 7th Circuit may establish a new precedent for courts nationwide. In the case leading to appeal of a lower court decision of a man who was convicted of drug possession and received a 20-year sentence, the police had used a K-9 dog to sniff and establish probable cause for the search of his vehicle. While the appellate court upheld his conviction because it found there were other indicators that rose to the level of probable cause, including the man's behavior and giving answers that conflicted with one another, the court was not satisfied with the dog's success rate.

According to records, the dog alerted to vehicles 93 percent of the time. In 40 percent of the cases in which the dog alerted, no drugs were present. The court gave a sharply worded statement regarding the dog's performance, indicating the dog's success rate was not much better than flipping a coin. The court also expressed concerns about the fact that the dog alerted almost all of the time, as the dog could then be used as a pretext to search almost any person.

When a person who is facing drug charges following a drug sniff and warrantless search, a criminal defense attorney may review the relevant facts to determine if the drug sniff was justifiable in the first place. Legal counsel may also review the dog's success rate and then file a motion challenging the constitutionality of the resulting search and seizure.

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