US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

SJC: Odor of Marijuana Does Not Give Rise to an Exit Order During a Police Auto Stop (Analysis)

By: Wassem M. Amin, Esq.

Issue: Whether the odor of burnt marijuana, during an otherwise valid traffic stop, may provide police with probable cause, or, alternatively, reasonable suspicion that a crime is occurring and therefore justify an exit order for the passenger of the stopped vehicle?

Summary Answer: The SJC held that no, the odor of burnt marijuana, standing alone, does not give rise to reasonable suspicion or probable cause sufficient to justify an exit order.

  1. Reasonable Suspicion Exit Order: An exit order based on reasonable suspicion must be supported by articulable facts that the passenger is engaged in criminal activity.  In other words, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.  Articulable facts must demonstrate a suspicion that the suspect possessed more than an ounce of marijuana, because possession of an ounce or less is not a crime. See G.L. c. 94C § 32L.  Possession of an ounce or less is a civil violation.  Therefore, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, as opposed to merely infractionary conduct, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.
  2. Probable Cause Warrantless Search:  Under the automobile warrant exception, a warrantless search of an automobile is permitted when police have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable.” Commonwealth v. Cast, 407 Mass. 891, 901 (1990) (quoting Carrol v. United States, 267, U.S. 132, 149 (1925)).  The standard used to determine the validity of a warrantless search is the same as that used by a magistrate considering the application for a search warrant.  See Whiteley v. Warden, 401 U.S. 560, 566 (1971); see also G.L. c. 276 § 2B (authorizing search warrants to be issued by a magistrate in criminal cases).  Therefore, the SJC, in extending the application of decriminalization of possession of one ounce of less of marijuana to the automobile warrant exception, held that it is unreasonable for the police to order a suspect out of a car to facilitate a warrantless search for criminal contraband based solely on the odor of marijuana.[1] Alternatively, the odor of marijuana, standing alone, does not give rise to probable cause that a crime is being committed and it is unreasonable for police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality.


An unmarked police vehicle observed a vehicle parked in front of the fire hydrant.  The vehicle’s windows were rolled down and it was light out, allowing the officers to see the driver and passenger in the vehicle.  The officers observed the driver smoking an inexpensive cigar, which, based on the officers’ experience was used to mask the odor of marijuana.  The defendant, who was a passenger in the vehicle, was known to both police officers and they knew he resided on the same street where the vehicle was parked.  One officer testified that although he saw the defendant-passenger smoke a blunt previously, the defendant was not known to be involved in any gang related or violent activity.

Subsequently, the officers pulled next to the vehicle, got out, and approached the vehicle.  From the passenger side, one of the officers could smell a “faint odor” of burnt marijuana.  Additionally, the officer noticed that the defendant was very nervous and avoided eye contact with the officer.  There was no contraband or weapons observed in plain view, nor was there any evidence that either the defendant or the driver made any furtive or threatening movements.

The officers neither cited the driver for parking in front of the fire hydrant nor asked for his registration or license.  Instead, the officers called for backup and four additional officers in two cruisers arrived.  After backup arrived, and based solely on “the odor of marijuana and just the way [they] were acting,” both driver and passenger were ordered out of the car.  In response to a question to the defendant by the officer, the defendant stated that he had crack cocaine on his person.  Four grams of crack cocaine were seized and defendant was arrested.  No Miranda warnings were given prior to the question or seizure.  Defendant moved to suppress the statements made and the crack cocaine seized.

Summary of Law and Holding:

Traffic Stops in General

Law enforcement may validly stop a vehicle for a civil traffic violation. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980); G.L. c. 90C § 2.  However, detaining a vehicle to issue a traffic citation must “last no longer than reasonably necessary to effectuate the purpose of the stop.” See Commonwealth v. Garden, 451 Mass. 43, 46 (2008) (quoting Commonwealth v. Ciarmitaro, 51 Mass. App. Ct. 638, 643 (2001).

A valid traffic stop that does not end with a citation requires additional suspicious conduct to justify an officer’s further investigation.  See Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006) (“In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on ’specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer’s experience.’”).  In the course of a valid traffic stop, an officer is not required to ignore what they see, smell, or hear.  Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996).


The SJC, after acknowledging that not all traffic stops justify an exit order for the passenger or driver, outlined three scenarios in which an exit order issued to a passenger may be valid.

First, an exit order is justified if “a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999), quoting Commonwealth v.Santana, 420 Mass. 205, 212-213 (1995).

Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. See Commonwealth v. Bostock, 450 Mass. 616, 621 (2008); Commonwealth v.Torres, 424 Mass. 153, 157-158 (1997).

Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement. See Commonwealth v. Cast, 407 Mass. 891, 901 (1990); Commonwealth v.Correia, 66 Mass. App. Ct. 174, 177-178 (2006).

Analysis and Application to G.L. c. 94C §32L (Marijuana Statute)

The Court did not address the first permissible reason for an exit order—fear for an officer’s safety—because the facts in the case did not give rise to such an inference and the Commonwealth did not advance this argument.  The two critical issues, therefore, is whether the there was probable cause, or alternatively, reasonable suspicion to justify the exit order for the passenger.

First, the reasonable suspicion standard: To justify further investigative detention of a passenger when no safety concerns are at issue, police must reasonably suspect that the passenger himself has committed, was committing, or was about to commit a crime.  See Commonwealth v. Torres, 433 Mass. 669 (2001).  The court quickly dismissed the Commonwealth’s argument that the stop’s location, a high crime neighborhood; the defendant’s nervous demeanor; and the occupants’ sharing of a cigar were facts that bolstered the suspicion of criminal activity first aroused by the smell of burnt marijuana.[2]  The court then addressed the Commonwealth’s argument that the officers’ reasonable suspicion that the defendant was engaged in criminal activity was based on the “faint odor” of burnt marijuana.  It held that, articulable facts must demonstrate that the defendant possessed more than one ounce of marijuana, because possession of one ounce or less is not a crime.  See G.L. c. 94C § 32L[3].  The court further held that to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal, as opposed to a civil infraction.  Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana, standing alone, cannot reasonably provide suspicion of criminal activity to justify an exit order.

Second, warrantless automobile search exception: a warrantless search of an automobile may be based on probable cause that contraband is present.  The Commonwealth argued that if police have probable cause to believe that contraband, i.e., any amount of marijuana, exists in the car, the police may validly conduct a warrantless search and order any passengers out of the car to facilitate the search.  However, the SJC rejected this argument and effectively overturned previous precedent.  The court held that the standard to determine the validity of a warrantless search is the same as that used by a magistrate in considering the application for a search warrant.  In Massachusetts, search warrants could be issued by magistrates in any criminal case.[4]  Citing prior precedent, the court stated that warrants are “instituted and pursued for the suppression of crime or the detection and punishment of criminals.” Robinson v. Richardson, 13 Gray 454, 456-67 (1859).  Based on that rationale, the court held that no facts in this case support probable cause to believe that a criminal amount of contraband[5] was present in the car and invalidate the search and seizure based on the probable cause warrantless search argument.

[1] In holding so, the SJC effectively overruled Commonwealth v. Garden, 451 Mass. 43, 47-48 (2008), which held that the odor of burnt marijuana was sufficient to support probable cause for a warrantless search.

[2] “The stop’s location, although potentially relevant to an objective assessment of officer safety, cannot justify reasonable suspicion to believe a person is involved in criminal activity. See Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125 (2005), quoting Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001) (traffic stop taking place in high crime area must be “considered with some caution because many honest, law-abiding citizens live and work in high crime areas”). Further, the officers knew that the defendant lived on Sunnyside Street, the very street on which the encounter occurred. Surely the officers could not find it suspicious that the defendant was spending time on his own street. Moreover, the defendant’s nervous demeanor cannot be the grounding factor on which to base suspicion of criminal activity. SeeCommonwealth v. DePeiza, 449 Mass. 367, 372 (2007). It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police, even though, as a passenger, the consequence of receiving a citation is not personal. Here, even though the defendant may have recognized Officer Diaz, a myriad number of innocent reasons other than hiding criminal contraband may more readily explain why a nineteen year old man would appear nervous while being addressed by a police officer. See United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (“Nervousness is a common and entirely natural reaction to police presence . . .”).”

[3] The statute, in relevant part, states “notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense.” (emphasis added).  The rationale for the court’s holding was that “ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute.”

[4] See G.L. c. 276 § 2B.

[5] Note that the court expressly stated that possession of marijuana, in any amount, still remains illegal and is therefore considered contraband.  It distinguished decriminalization from legalization and stated that because marijuana remains unlawful to posses, any amount of marijuana is considered contraband.