Oregon Supreme Court Raises the Standard for Drug Detection Dogs

The Fourth Amendment to the U.S. Constitution and Article 1, section 9 of the Oregon Constitution prohibit "unreasonable searches and seizures" by the government. Courts interpret this to mean that law enforcement generally must have a valid search warrant before entering homes or searching places or people. In the absence of a warrant, the government may only search or seize under narrow "exceptions" to the warrant requirement recognized by the courts. These exceptions are generally related to emergency situations or the mobility or fleeting nature of the evidence sought. While the Fourth Amendment focuses on an individual's "reasonable expectation of privacy," the Oregon Constitution focuses on the actual possessory and privacy interests of the individual or area affected.

One of the exceptions to the warrant requirement under both federal and state law is commonly referred to as the "Automobile Exception." Under this exception, police may generally search a car and its contents, if it was mobile when stopped by police and police, have probable cause to believe it contains contraband or evidence of a crime.

In 2005, the U.S. Supreme Court, in Illinois v. Caballes, 543 Or. 405, held that the use of a drug sniffing dog on the outside of a lawfully stopped car was not a search and therefore did not violate the Fourth Amendment. This had been the rule in Oregon since 1998 when the Oregon Supreme Court in State v. Smith, 327 Or. 366, held that the use of a drug detection dog in and around a public area was not a search under the Oregon Constitution.

Drug Detection Dogs Must Be Proven Reliable

Left open in Oregon were questions related to the reliability of a drug sniffing dog's alert to the presence of drugs in a car or other protected area. Under what circumstances would such an alert be reliable enough to provide the police with the probable cause required to justify the search? In two recent opinions involving automobile searches, the Oregon Supreme Court held that state prosecutors must show that a drug dog's detection is reliable before evidence gleaned from the search is admissible in court in drug charges cases.

The reliability of both the dog and its handler is evaluated on a case-by-case basis looking at factors such as their training, certification and past performance. In one of the two opinions, the court took issue with the dog's training by a private organization as opposed to a government agency. Moreover, the court indicated that detailed evidence of training and performance, and how that training built accuracy and reliability, would be needed to uphold the legality of a search.

What Difference Will it Make?

Under these recent cases, persons arrested and charged with suspected drug offenses must raise issues with the reliability of any dog sniff evidence. The reliability requirements which the state must demonstrate in every case and in every instance arise only upon a proper defense motion challenging the foundation for such evidence. Law enforcement agencies may need to revamp their drug detection training programs. The police will no longer be able to use poorly trained drug detection dogs to search motorists and their vehicles for drugs.

These new rules regarding the reliability of drug detection dogs must be taken into consideration also with the very specific legal requirements placed on Oregon police when stopping, detaining and searching motorists. Police must have a legally valid reason for stopping a driver. Their investigation is constitutionally constrained in both scope and timing. Simply being pulled over for a traffic violation does not give the police the right to search your car with a dog or otherwise.

If you have been charged with a drug offense, contact an experienced and knowledgeable attorney in your area to vigorously defend your rights.

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