MA: Of Franks and dogs; false positives must be disclosed to the issuing judge

Massachusetts explains the relationship between the Franks doctrine and dog reliability. Here, the dog’s false positives in the past militated against probable cause. “Nonetheless, the cumulative subtractions from the trustworthiness of the alert brought the corrected affidavit information below the level of probable cause.” French v. Hines, 182 Md. App. 201, 957 A.2d 1000 (2008):

Another corollary of the Franks doctrine is that the motion and hearing judges will inspect an affidavit not only for positive misstatements but also for material omissions of fact. See United States v. Hall, 113 F.3d 157, 158-159 (9th Cir. 1997) (at warrant hearing a police officer withheld important knowledge of a sole informant’s tainted credibility; probable cause lacking, warrant invalidated). See also Commonwealth v. Dion, 31 Mass. App. Ct. 168, 173 (1991) (excluding a harmful misstatement of the defendant’s criminal record and including a favorable but omitted laboratory test of white powder found in the defendant’s apartment; sufficient facts remain to support finding of probable cause). In the present circumstance in which the positive alert of a drug-detection dog furnishes the essential support for the probable cause finding, the hearing judge will consider information withheld from the warrant judge or magistrate which tends to subtract from the reliability of the dog’s performance. United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (dictum; a dog alert could fall short of probable cause if the dog had a “poor accuracy record”); United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (dictum; a court may look behind a search warrant for omitted information undermining a dog’s reliability); and United States v. Donnelly, 475 F.3d 946, 955 (8th Cir.), cert. denied, 127 S. Ct. 2954 (2007) (dictum; police affiants cannot withhold negative history casting doubt upon a dog’s reliability).FN5 See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-6[c][l][i] (2008-2009 ed.) (“Omissions may be as bad as commissions”); 1 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.2(g) at 527 n. 357 (4th ed. 2004) (issuance of warrant should require demonstration of dog’s reliability).

5. Each of the cited decisions observes that a positive alert by a properly trained and reliable dog can, by itself, furnish probable cause for issuance of a search warrant. Each adds that the dog’s reliability is impeachable by demonstrated misstatements in, or omissions from, an affidavit. Massachusetts decisions, also, have treated the alert of a trained narcotics-detection dog in combination with other indicia as sufficient support of probable cause to search. Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001). Commonwealth v. Feyenord, 445 Mass. 72, 83 (2005), cert. denied, 546 U.S. 1187 (2006). Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). However none of those decisions addressed circumstances in which a search warrant affiant allegedly embellished or concealed facts bearing upon the reliability of the dog’s performance under the lens of the Franks standard.