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Independent Dog Sniff Evidence Not Fruit of the Poisonous Tree

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By Brett Snider, Esq. on June 07, 2013 10:01 AM

Dog sniffs often lead to the most damning evidence in a drug case, and getting that evidence suppressed can be the difference between a conviction and an acquittal or plea bargain for many defense attorneys.

Although the metaphor may grow on you (ka-wink!), the fruit of the poisonous tree doctrine is still alive and well, but the Sixth Circuit refuses to extend its toxic branch to certain dog sniff cases.

US v. Figueredo-Diaz

The Sixth Circuit opined in on Wednesday that dog sniffs of vehicles that lead to incriminating evidence were valid so long as the cause for the dog sniff was independent of any illegal search and seizure.

This shouldn't come as any surprise, as the exclusionary rule is meant only to bar evidence which is the fruit of the poisonous tree, stemming from a 4th Amendment violation.

The Figueredo-Diaz court believes that this is especially true when the dog sniff has its own, untainted, reasonable basis derived from an officer's specific observations, such as:

  • Knowledge about ownership of the vehicle
  • Suspicious activity around the vehicle prior to the sniff
  • Reliable tip about the vehicle's owner
  • Flight of the vehicle's owner leading to lawful detention

It does not violate a defendant's 4th Amendment rights to have evidence presented that derived from a lawful dog sniff, independent of an unlawful detention or seizure.

Dog Sniffs Can Give Probable Cause

In Figueredo-Diaz, the court affirmed what the Supreme Court has continued to support (as in the recent ruling in Florida v. Harris) that a trained drug dog's indication can establish probable cause for a search.

Even when an unlawful arrest of the driver occurs, the Sixth Circuit has maintained that a dog sniff can give untainted probable cause to search a vehicle, and the fruits of that search should not be suppressed.

Exclusionary Rule Not Automatic

Although the exclusionary rule is intended to deter 4th Amendment no-no's by police, it is not automatic in every case of an illegal search or seizure. In Clariot, the Sixth determined that evidence is not suppressed unless the illegal action by the police is either the "but for" cause of discovering the evidence or the evidence is the product of the illegality.

Dog sniffs continue to be a powerful investigative tool in all jurisdictions, and if there exists an independent basis for a sniff that leads to incriminating evidence, odds are that it will be admitted.

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