D.Mont.: Drug dog’s reliability doesn’t need to be shown in SW application

A search warrant application does not have to support the reliability of a drug dog used to establish the probable cause under Harris. The remedy is a motion to suppress. “As this Court reads it, Harris is a reiteration of Gates. Judges and law enforcement authorities need some reason to think a drug dog is reliable, see Harris, 568 U.S. at 247, but if the defendant thinks otherwise, a motion to suppress puts the burden on the government to prove the K-9 unit contributed competent information that, taken together with all other relevant facts, established probable cause for a search. United States v. Bishop, 2020 U.S. Dist. LEXIS 106354 (D. Mont. June 17, 2020).

Defendant’s Franks challenge fails. He “has failed to make a substantial preliminary showing on at least two fronts. First, nothing in his motion or affidavits speaks to whether the alleged omissions were deliberate or reckless. Nault cannot receive a Franks hearing simply alleging factual inaccuracies or omissions. … [¶] Nault’s motion also fails because he has not made a significant preliminary showing that the drug dog sniff was material to the probable cause determination.” United States v. Nault, 2020 U.S. Dist. LEXIS 106297 (D. Mont. June 17, 2020).*

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