Criminal Defense Blog

How Does a Drug Dog Testify?

By Michael A. Tucker

You are confused. The police show up at your apartment. While you are handcuffed and sitting on the floor they start to search. You have cooperated and they have not found any reason to make an arrest. They radio dispatch and another officer arrives, with a dog. While you are watching carefully, the dog goes through the entry hall and each room. Aside from what seems to be random barking and a frequent chorus of "good boy" cheers from the police, you don't see anything suspicious in the dog's behavior.

They take you out in cuffs and to the station for booking. You don't have a lawyer yet, maybe you haven't even asked for one. When you read the police reports later, they say the dog signaled to them that there were drugs in your bedroom and in the kitchen of the apartment. The charges are serious and your attorney tells you that this is something to be worried about. You should probably expect a motion to suppress the drugs to be filed in your case and a trial will take place afterwards if the motion does not succeed.

It is simple. If the state can't get in the drugs, it can't win the case. If you get rid of the dog's testimony, you get rid of the drugs. How does the drug dog tell the judge or the jury what he smelled or how he knew it was drugs? How does your attorney cross examine a dog? What about the officer that works with the dog? The questions have to be put to the dog's handler/partner. That officer is about to tell your jury what the dog was thinking. The jury rocks forward in their seats. What will he say? How does he know? Why should we believe him?

The federal court for this jurisdiction has just handed down a case that helps answer the question. The judge in your case has to make certain that you have a fair trial. Therefore, you are entitled to know in advance whether the dog handler is going to testify as just another witness or are they going to tell the jury that he is an "expert" on drug dogs. You are entitled to know in advance the details of any training that the dog received. You should also have information about any training that the handler received. How long have they worked together? When was the last time they went to school? Has the dog made mistakes in the past? What other arrests have they made together? Were any of those cases overturned?

You are entitled to this discovery. The name of the most recent case from September 15 of 2017 is U.S. v. Naranjo-Rosario. It is a federal decision from the First Circuit that includes Massachusetts and New Hampshire. How can your lawyer defend you if he or she can't cross examine a dog? The lawyer has to get the maximum amount of discovery about the dog and the handler as far before motion or trial as he or she can. The judge and jury love dogs. Your lawyer has to convince them that this one can't be trusted. That takes facts.