Difficulty of Challenging Reliability of Dog-Sniff-Based Searches Now a Lot Harder

U.S. v. Ludwig, 2011 WL 1533520 (4/22/11) (Wyo.) (Published) - The 10th seems to have dealt a devastating blow to challenges to the reliability of drug-sniffing dogs to establish probable cause. The 10th says a defendant cannot challenge the reliability of individual dogs if the dog has been certified. In that case, the defendant can only challenge the reliability of the credentialing organization. This is so because "canine professionals are better equipped than judges to say whether an individual dog is up to snuff." Plus using the statistics of the dog's success suggests probable cause may be reduced to a "one-size-fits-all mathematical equation" and that would be awful. Precedent and common sense are more important than percentages. And, besides, the dog's 58% success rate is enough for probable cause. The d. ct. did not clearly err in agreeing with the government expert who said the officer did not cue the dog to alert.

The 10th also holds an officer's credible visual estimation of speed establishes reasonable suspicion for a traffic stop. And the officer had reasonable suspicion to detain the defendant beyond what was needed to give a citation because: (1) the defendant didn't pull over right away; (2) there was an overpowering smell of cologne; (3) the car was registered to a third party [this factor is relevant even where the driver can supply details about the owner]; (4) the defendant's story was suspect [he drove from N.J. to San Jose, California, "the hub of the computer industry," to fix a computer server problem] [travel plans do not have to be contradictory to be relevant; it's enough that they are "bizarre"]; and (5) the defendant was supposedly exceptionally nervous. The defendant was not entitled to dismissal under Trombetta for the deletion of a video of the stop. While the video might have provided missing dialogue, comparable evidence existed: 2 other videos of the stop and the testimony of the honest eyewitness police officers. And it was not clearly erroneous to refuse to award a minor role adjustment on the grounds that the defendant was unlike the average courier, because he knew he was transporting $125,000 in cash to buy drugs.