Drug Dogs and the Call of Nature

The Supreme Court in Florida v. Harris directed courts to employ a “flexible, common-sense standard” in evaluating whether a drug dog’s “alert” constitutes probable cause for a search.  Harris focused on the training of the dog (Aldo), but a recent Georgia case illustrates that the probable cause question is also complicated by the difficulty of evaluating whether, in fact, a drug dog did “alert.”

In McKinney v. State (Ga.App. 2014), the defendant “argued that the officers did not have probable cause to conduct [a car] search because Simba [the drug dog] did not in fact alert during the search, but instead stopped to relieve himself.”

There seems to be something to this strange claim as the court summarizes the government’s evidence:

“Officer Pullen then walked [the dog] to the passenger's side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself.”

A footnote adds that “Simba was experiencing stomach distress and had relieved himself in the back of the patrol car immediately prior to the search.”

Despite the surprising overlap between a trained drug dog’s “alert” and an uncontrollable bodily urge, the trial court credited the officer’s testimony that this activity constituted an “alert” (or, more precisely, a failed alert) and the appeals court upheld the factual finding.  A victory for the prosecution, but certainly not the finest day for the “war on drugs” or Simba the drug dog.