|Via Simple Justice.|
Dog-sniff evidence is problematic because dogs can't be cross examined. There's wide variation in their accuracy, not to mention the quality and quantity of their training. And dogs naturally pay careful attention to cues from their handlers, creating a significant risk of false positives. Since no attorney will ever get a dog on the witness stand, the other elements (accuracy, training, and methods to avoid cues from the handler) have been critical to the creation of probable cause in previous court decisions. Unfortunately, the bar on all those measures is lowering rapidly.
Courts already accept dog "alerts" as a legitimate basis for a search, even when the dog regularly "alerts" where no contraband is found. In this story out of Roanoke Virginia, a dog name Bono found drugs "just 22 times out of 85 'alerts'," or 26% of the time, and yet a judge upheld the search. Arguing that the dog's performance was actually better than the statistics tended to show, prosecutors in Bono's case argued the dog should get credit for some "hits" that found no contraband, claiming that: "In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect." The judge accepted that argument, but even granting such a (highly dubious) premise, Bono's alerts were clearly mistaken half the time, and in another quarter of his hits he's detecting traces that did not actually indicate drugs were present. That fact undermines the US Supreme Court's past rulings (e.g., US v. Place) which upheld dog sniffs in part because they disclose "only the presence or absence of narcotics, a contraband item." In Bono's case, his "hits" mistook the absence of drugs for their presence nearly 3/4 of the time.
Detecting drugs that used to be in the location is not the same as detecting contraband presently in a suspect's possession. In Texas, Deputy Keith Pikett claimed his dogs could distinguish smells in "scent lineups" up to 17 years after the sample was gathered, so if you take that preposterous claim at face value (as many Texas prosecutors have) heaven knows how long the lingering odor of marijuana might trigger a "hit"? If I buy a car from a pothead and years later a cop runs a drug dog around it, will the dog still signal that marijuana is there? Should that constitute probable cause to search my car today? That's the logic of the Roanoke court.
The judge in Bono's case upheld the dog sniff as probable cause mainly because, while the dog "may not be a model of canine accuracy," police were justified in acting on it because of the "dog's training and flawless performance during re-certification sessions." Unfortunately, even flawless performance means different things to different agencies.
A case out of Florida which will be argued before the US Supreme Court this fall will determine whether drug-sniffing dogs may be used to glean probable cause outside someone's home without a warrant. The Florida Supreme Court's ruling being challenged by the state made the following argument to say mere certification was insufficient to demonstrate dogs' competence, because:
conditioning and certification programs vary widely in their methods, elements, and tolerances of failure. Consider, for example, the United States Customs Service regime:The Customs Service puts its dog and handler teams through a rigorous twelve-week training course, where only half of the canines complete the training. Customs Service dogs are trained to disregard potential distractions such as food, harmless drugs, and residual scents. Agents present distractions during training, and reward the dogs when those diversions are ignored. The teams must complete a certification exam in which the dog and handler must detect marijuana, hashish, heroin, and cocaine in a variety of environments. This exam and the following annual recertifications must be completed perfectly, with no false alerts and no missed drugs. If a dog and handler team erroneously alerts, the team must undergo remedial training. If the team fails again, the team is disbanded, and the dog is permanently relieved from duty.
In contrast, the testimony below disclosed that Razor and his handler had undergone just one initial thirty-day training course and one week-long annual recertification course. In neither course was Razor conditioned to refrain from alerting to residual odors. Whereas the Customs Service will certify only dogs who achieve and maintain a perfect record, Razor's certification program accepted a seventy percent proficiency. These disparities demonstrate that simply characterizing a dog as "trained" and "certified" imparts scant information about what the dog has been conditioned to do or not to do, or how successfully. (Emphasis in original, citations omitted.)CBS News' 60 Minutes addressed the subject of low-quality training for sniffer dogs in a 2009 story:
"We don't have a set of standards," says Auburn University professor Larry Myers, one of the country's leading experts on canine detection programs.Meanwhile, Scott Greenfield at Simple Justice brings word of a drug-dog case from across the country in Nevada that should give everyone pause. Nevada state troopers have sued their superiors, alleging that:
He believes there is insufficient regulation and no universal tests for the dogs: "We honestly don't have a set curriculum. We've got to get everybody up to some minimal agreed level."
He also says there are good programs that turn out reliable dogs, but some produce dogs that make lots of mistakes -- and even tell lies.
"They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for," says Myers, who adds that canine programs are supposed to train dogs specifically to avoid that problems like that. "It is a tremendous problem. We have trainers that can't train. Dogs are being used that can't --don't know how to do anything."
Do trainers have to be licensed? "In some programs, yes. And in most programs, no," says Myers.
This means that poorly trained dogs and handlers are working in many parts of the country.
the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.Dogs naturally pay very carefully attention to their people. They've been doing so for millenia. In Nevada, troopers are accused of intentionally teaching the dogs to alert based on their cues. Which raises the question: How can any court ever determine whether a dog alerted to the smell of drugs, an intentional or unintentional cue from their handler, or for that matter the package steaks recently purchased by the suspect? As pointed out in a recent article from the National Association of Criminal Defense Lawyers' trade journal:
The dogs were being trained to alert their handlers by cues, instead of by picking up a drug's scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.
Dogs are not motivated in the same way as humans. Dogs have no interest in ridding the world of illegal drugs. Dog trainers, including police K-9 trainers, use treats, toys and praise to reward dogs when they do what they have been conditioned to do. If a police K-9 alerts, it gets a reward. K-9 handler/trainers know this, and the dogs quickly learn that an alert results in a reward in most instances, even if nothing is found.Even if such cues are not intentional, the fact is that dogs seek to please their handler raises questions of inherent bias, particularly when the dog's "hit rate" is as low as Bono's above. As the NACDL article pointed out, "If law enforcement or magistrate judges, who are presumed to be impartial, were to be similarly incentivized, it would constitute violations of the Fourth, Fifth and Fourteenth Amendments." To the dog, after all, it's all just a game in which they want to find reason to alert in order to get a reward. To law enforcement and those targeted, though, it's not a game at all, even if federal jurisprudence on the subject has been mostly a joke.