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U.S., Florida Supreme Courts Rule on Florida K-9 searches

Police officers around the country commonly use K-9 dogs to search the area around a vehicle during an arrest or traffic stop. Police officers do not need a search warrant for a K-9 to search around the outside of a vehicle during an arrest or stop. When a K-9 “alerts” or signal to its handler that it has smelled either an explosive or drug, the officers have per se probable cause to search the contents of the car. Numerous potential legal issues arise with warrantless K-9 sniffs around a car and alerts leading to the search of the contents of the car.

New Developments from the Florida Supreme Court

The Florida Supreme Court has held in the case of Florida v. Harris, 133 S.Ct. 1050 (2013), that a dog sniff around a car is not a search, and therefore not protected by the 4th Amendment’s protection from unreasonable searches and seizures. However, the court did rule that “the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability.” The K-9s must be trained and certified, and officers must document when a K-9’s alerts were accurate or not. The Supreme Court’s ruling comes after allegations that officers were creating fake alerts to use a pretext to search for contraband.

The inquiry for a K-9 search of a home is much different. The Supreme Court of the United States has ruled in Florida v. Jardines, 133 S.Ct. 1409 U.S. (2013), that police cannot make a warrantless K-9 sniff search of the outside of an individual’s home, which includes the front porch and the curtilage (the 4th Amendment-protected area that is immediately adjacent or surrounding the home). The Supreme Court rules that this activity is intrusive enough on the occupant’s privacy to be considered a search under the 4th Amendment, and therefore is subject to the protections guaranteed under that amendment.

These two cases make it clear that the Supreme Court believes we have different expectations of privacy in a car than in a home. The case law on the topic still provides defendants with many defenses, whether the K-9 search occurred around a car or a home.

Assault on a Police Officer’s K-9

Often, during both police encounters and the execution of search warrants, a K-9 unit is involved. And in many cases, a heated situation can take a quick turn for the worst. In the state of Florida, it is a crime punishable up to a third degree felony for injuring a police K-9 and a misdemeanor for an attempted assault. During a recent domestic disturbance call in Pinellas Park, a police K-9 was shot at when he entered the backyard of a private residence. Despite not being hit by the bullet, the shooter has been criminally charged under the Florida law.

There are many defenses to a charge under this law. Self-defense is a key argument that an experienced criminal defense attorney may make. When a large K-9 is attacking you, it is understandable that you may fight back or injure the dog in an attempt to protect yourself or release the dog’s grip. Another potential defense might be based on a defendant’s involuntary reactions to a K-9 attacking them. This defense holds that the defendant did not intentionally mean to hit the dog, but a flinch or involuntary reaction is what caused the harm or attempted assault of the animal.

Hopefully you will never be charged with possession of any form of contraband as a result of a K-9 search, warrantless or otherwise. You certainly never want to be accused of assault or attempted assault of a K-9. But if you are, you should immediately contact The Tony Moss Firm, L.L.C., in Miami or Ft. Lauderdale to discuss your options.

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