When it comes to police canine units, does the nose know? And where can that nose go?
Those are the questions the United States Supreme Court must answer after hearing two cases in the last week dealing with the use of drug sniffing dogs. The cases, both from the state of Florida, could impact the usage of drug sniffing dogs across the nation, including K-9s Ajax and Diego of the Marietta Police Department and K-9s Quick and Votan of the Washington County Sheriff's Office.
The dogs are an invaluable resource in the fight against drug trafficking, said Washington County Sheriff Larry Mincks.
Marietta Police Department’s K-9 Diego successfully indicates on the presence of heroin during a training session Monday with his handler Patrolman Glen McClelland, center, and K-9 handler Patrolman Matt Hickey. Conflicting factors such as food scents, toys and unknown humans are added to distract Diego so the police can be confident that he will be ready for his job in any given scenario.
"It would certainly be detrimental if we could not use them. They are very effective," said Mincks.
The Ohio State Highway Patrol also uses K-9 units throughout the state, said Lt. Anne Ralston, public affairs commander for the Ohio State Highway Patrol.
"Ohio is in a key region in the United States and many people are using our roadways to transport drugs," she said.
Centers on a case in Florida where a drug dog was taken to a residence known for drug activity and his indication of drug presence was used as a basis to obtain a search warrant.
Addresses whether or not the initial drug sniff constitutes a "search" in and of itself.
Will therefore determine whether or not drug dogs can be used on private property without first obtaining a warrant.
Centers on a case in Florida where a dog correctly indicated on a vehicle, and then falsely indicated on the same vehicle two weeks later.
Addresses whether or not drug dogs need to maintain a certain track record in the field or if they need to maintain a certain frequency of recertification.
The first case being heard by the Supreme Court, Florida vs. Joelis Jardines, will determine whether it is constitutional to use a dog's sniff at a private residence to obtain a search warrant.
During the oral argument attorney Gregory Garre, who represented the state of Florida in both cases, argued that dogs only indicate for the presence of contraband and no rights of privacy extend to drugs or contraband.
But many of the justices took issue with that argument.
"That just can't be a proposition that we can accept across the board," said Justice Anthony Kennedy.
Justice Sonia Sotomayor argued that search warrants would not even be necessary if contraband never has an expectation of privacy.
And Justice Elena Kagan likened the use of drug sniffing dogs to the use of technology to determine if illegal items are present. The court has already ruled against the use of technology to determine the contents of a private residence, said Kagan.
Even if the Supreme Court finds it unconstitutional to use a drug dog to obtain a search warrant at a private residence, the first case is not likely to have an immediate local impact. No local agency use drug dogs at private residences unless they already have a warrant or a reason to be there, said officials from each department.
The second case, however, deals with a dog's specific qualifications, something that could effect drug dogs everywhere. In the case of Florida vs. Clayton Harris, a K-9 correctly indicated for the presence of drugs in Harris' vehicle once. Two weeks later the dog indicated on the same vehicle and no drugs were present, bringing the dog's reliability into question.
But that dog's indication was nothing uncommon and should not count against him, said Ajax's handler, Patrolman Matt Hickey of the Marietta Police Department.
"When you get down to it, just because the drug is not there, does not mean the scent is not there. The particles are still there and the dog can smell it," explained Hickey.
If the justices do decide that dogs need to have a certain track record of positive indications or that they need to be subject to more stringent certification requirements, the federal government could potentially have the power to give pink slips to dogs like Ajax and Diego.
"Our position is that the Fourth Amendment doesn't impose an annual certification requirement. Some states have it, some states don't," argued Garre.
Ohio law stipulates that police canines must be recertified every two years, and all local police canines meet those certifications. In fact, Ajax and Diego surpass those qualifications, recertifying annually, said Diego's handler, Patrolman Glen McClelland of the Marietta Police Department. Even if the justices were to enact a more uniform set of strict qualification rules, they would be ready, he said.
"It would just mean we'd certify more than once a year," said McClelland.
The certification process is stringent. At the state level a dog needs to correctly indicate 80 percent of the time. For additional certification through the North American Police Working Dog Association, that accuracy requirement jumps up to 92 percent.
The dogs participate in a required monthly training which the public can view if they contact the MPD in advance. But Hickey and McClelland said they use additional training sessions to make sure their dogs are always prepared.
Additionally, handlers purposely add "conflicts" into training scenarios to make sure dogs do not indicate on anything other than drugs. The MPD handlers have used things such as raw steaks, toys and even female dogs in heat to make sure their dogs focus on only the drugs to be found.
However, imposing a field accuracy requirement is simply impractical and would negatively impact K-9 units everywhere said Hickey.
"We have hit on cars where they did not find drugs but the passenger said 'You know, I smoked a joint before I left the house,'" added McClelland.
The Supreme Court will not hand down rulings on either case until next year.