Tuesday, August 6, 2013

The Dog's were Let Out, and the Cat's out of the Bag -- What can ya do? (aka Who Let the Dogs Out Part Two)

attorney, central indianaEarlier, in a blog post on July 16, 2013,  I discussed when dogs could be used in searches in criminal cases.  Now, we need to discuss what happens when a dog "alerts" on your person, your car, or in your home.  The alert of a dog may let the cat out of the bag in your case.

All amusing animal references aside, if the officers have validly stopped you, or come onto your property, and validly use a canine sniff during the stop or visit, the next consideration in your case would be whether the canine used actually made a valid alert.  There are several things you will want to discuss with your attorney, and you want to ensure the attorney you choose asks you about those things.

First, through the process of discovery, your attorney should obtain records regarding the canine's training, experience, and false alerts.  Without this information, neither you, nor your attorney may properly evaluate the accuracy and ability of the canine who performed the sniff search in your case. Most attorneys do not push for this information, as it's kind of a pain in the butt to get from the prosecutor. However, the information is out there, and you are entitled to it!  If the officer's canine allegedly "alerts" on your vehicle and smells "pot", your attorney better know if the canine always alerts accurately to the presence of pot, never alerts to the presence of pot, or falsely alerts to the presence of pot.

Second, you and your attorney need to learn, in the discovery process, what the dog's "alert" is, and when the dog alerts versus when said alert may be prompted or something else entirely. Training records of the dog are absolutely integral to this analysis. Your attorney needs to know how the dog is positively reinforced, and how the dog is to be handled when sniffing for the drugs in question.  This will allow your attorney to question the officer's actions, effectively, when the officer discusses the dog sniff in the case.  Whether the officer was either purposefully or inadvertently breaking protocol, knowledge; of any tells or hints an officer provides to his canine, or breaches in search protocol the officer uses with the canine; is a powerful cross-examination tool that allows juries to see just how fallible the canines and their humans are, possibly providing you with relief from the legal system.

Third, you should work with your attorney to determine the best use of the information obtained, whether it be through pretrial motion practice, impeachment of the officer at trial, or in negotiation of a plea. 

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.