Page:Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607.pdf/31



III. The Canine Sniff Reliability/Probable Cause Framework
One final observation regarding the evidentiary thicket surrounding drug sniff cases bears mentioning. The Court of Appeals dispatched with the challenge to the drug dog's reliability by stating "Trooper Behnke provided both his and his dog's training and certification records. That is all that is required to establish the dog's reliability." 2012 Ark. App. 508, at 5. That somewhat oversimplifies the analysis where, as here, the defendant challenged reliability. To be sure, particularly in light of Florida v. Harris, 568 U.S. ___, 133 S. Ct. 1050 (2013), the State's threshold burden is to establish either that a bona fide organization certified the K-9 after testing the dog in a controlled setting or that the dog recently and successfully completed a training program that evaluated his proficiency in locating drugs. If the State fails on both of these inquiries, then no probable cause based on the canine sniff can normally exist because the officer could not have reasonably relied on the dog's alert.

On the other hand, if the State meets its threshold burden, then the defendant still has several avenues through which to attack the canine sniff as a basis for probable cause. First, the defendant may prove that the certification or training program was too lax or employed faulty methods. Second, the defendant may seek to establish that, though certified, the dog did not perform adequately in either the training/certification program or in field performance. Such proof may undermine the dog's reliability, which could vitiate the