Legal twist for dog-sniffer victims . . .

[Tock]

Dunno where else to put this . . . but I chanced across an interesting tid-bit of info pertaining to an issue that comes up from time to time--dog sniffers. I used to train 'em in the military, and had been under the mistaken impression that all sniffer dogs, military and civilian, were trained with the same methods. Well, it turns out that ain't the case. It seems that the military and Customs dogs get 11 weeks training, and many (how many I don't know) civilian dogs only get 4 weeks. From my experience, that ain't enough to do teach a dog diddly squat.
Pretty much, if you get tagged by a Customs dog for "probable cause" for a car search, they've should have the training documentation all lined up in case the issue arises in court. But should push come to shove, you should have your atty check . . .
But if for some reason you get tagged by a civilian sniffer dog, chances are you can sucessfully challenge it, and have any contraband subsequently recovered disallowed as evidence against you. Seems the guy who's been in charge of the military's sniffer training for the past jillion years has testified in a trial or two against the reliability of civilian trained dogs, and the courts have agreed with him.

Anyway, here's the URL and text for anyone who may find themselves in this uncomfortable situation . . .

http://members.ij.net/rex/drugdogs.html


The new court case (below) could greatly impact the use of drug dogs by local law enforcement. Most drug dogs (especially on the state and local level) probably do not meet the standards announced in this court decision, and do not provide cause to search cars or anything. Click here for a news story on the opinion. Click here for an editorial cartoon. Click here for a favorable newspaper editorial. Click here for some background information on the issues. And yet those dogs are used to search and arrest people all the time and probably will continue to be used for some time. The case is educational about drug dog training and why drug dogs can be totally unreliable. This is a great case regarding the (un)credibility of drug dogs and the decision was awaited for a long time. The whole defense community is barking about this decision. Lawyer's are man's best friend. The motion to suppress and hearing in the trial court were done by me, Rex Curry. Though it is a Florida appeal the opinion mentions the federal 6th circuit and federal practices.

http://www.2dca.org/opinion/August%2.../2D00-1611.pdf

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

Case No. 2D00-1611

GARY ALAN MATHESON,
Appellant,
v.

STATE OF FLORIDA,
Appellee.

Opinion filed August 1, 2003.
Appeal from the Circuit Court for
Hillsborough County;
Barbara Fleischer, Judge.

James Marion Moorman, Public
Defender, and Celene Humphries,
Special Assistant Public Defender,
Bartow, for Appellant.

Rex Curry Attorney at Law
for the Defendant - Appellant
in the trial court motion to suppress & hearing

Charles J. Crist, Jr., Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa, for
Appellee.

NORTHCUTT, Judge.
Gary Alan Matheson maintains the State failed to prove that an alert by
Razor, a narcotics detection dog in service to the Hillsborough County Sheriff's Office,
furnished probable cause to search his vehicle. He advanced that position during his.-2-
prosecution for drug offenses in a motion to suppress the contraband discovered and
seized during the search. When the circuit court denied the motion, Matheson pleaded
no contest to three counts of possessing a controlled substance and one count of
possessing drug paraphernalia. He reserved his right to appeal the denial of his
dispositive motion to suppress. We reverse.
PROCEEDINGS BELOW
At the suppression hearing it was related that in May 1999 Razor was
called upon to sniff Matheson's car after deputies stopped Matheson for a traffic
infraction. During the traffic stop the deputies had made what they described as a
routine request for permission to search Matheson’s car. Matheson had declined;
hence, the deputy called for Razor’s assistance.
The State offered the testimony of Razor’s handler, Deputy Greco, who
recounted that he arrived at the scene as another deputy was writing Matheson a traffic
citation. Deputy Greco testified that he followed his normal routine by taking Razor to
the driver’s side door of Matheson’s car and quickly walking the dog around the car in a
clockwise direction. Razor did not alert on this first pass. Deputy Greco then walked
Razor slowly around the car, allowing him to linger at the “seams.” This time, Razor
scratched and bit at the edge of the car’s hatchback, which Deputy Greco recognized as
Razor's alert behavior.
Deputy Greco advised his colleagues that Razor had alerted. They then
entered Matheson’s car and searched it. In the rear of the car they discovered a bag
containing drug paraphernalia, including syringes and spoons. In the glove.-3-
compartment the deputies found hydrocodone tablets, morphine tablets, and
methamphetamine.
On the evening that Deputy Greco walked Razor around Matheson’s car,
he had been a canine handler for about twenty-one months. He testified that he had
taken training both in canine patrol handling and in narcotics detection. He and Razor
had been assigned to each other since both began their services in canine patrol in
August 1997. Prior to Razor's sniff of Matheson's car, he had been certified to detect
marijuana, cocaine and heroin. He subsequently was certified to detect
methamphetamine.
On cross-examination, Deputy Greco acknowledged that he had not
maintained a record of Razor's false alert rate. In fact, he often left the scene of a sniff
after advising deputies that Razor had alerted, and thus never learned whether the alert
had led to the discovery of contraband.
At the conclusion of Deputy Greco’s testimony, the State rested. The
circuit court agreed that the State had made a prima facie showing that the search of
Matheson’s car was supported by probable cause.
The defense then presented the testimony of Razor’s trainer, Sergeant
Olive. He testified that Razor completed a thirty-day course of training by the
Hillsborough County Sheriff’s Office in October 1997 and a one-week program under
the auspices of the United States Police Canine Association in June 1998.
During questioning about the specifics of the HCSO and USPCA training
regimens, Sergeant Olive testified that Razor had received no training to discourage
him from alerting to "dead scents," those being residual odors of drugs that are no.-4-
longer present. Sergeant Olive also confirmed that the Sheriff’s Office did not maintain
records of Razor’s success rate. When explaining this, he maintained that it would be
impossible to assess a dog’s reliability “in the street” because the dog might alert on
dead scents. Sergeant Olive asserted that he would not consider an alert on a dead
scent to be a false alert because the dog had done what he was conditioned and
certified to do, i.e., alert to the odor of contraband.
The defense submitted the expert testimony of Dr. Dan Craig, a
veterinarian and animal behavior specialist whose background included extensive
consultation with the United States military and other agencies regarding their detection
dog programs. Dr. Craig testified that the HCSO training procedures used with Razor
were too simplistic to make him reliable at detecting narcotics for six reasons. First,
Razor received inadequate training for searching vehicles. Second, Razor was not
trained with small quantities of drugs. Third, training officers failed to plant novel odors
during Razor’s training searches. Fourth, Razor was not subject to controlled negative
testing, in which all objects or locations have no drugs present. Dr. Craig said that this
type of testing indicates a false response rate and reveals whether the handler or the
dog is guessing. He added that preventing the handler from knowing whether drugs will
be present during a training exercise reveals whether the handler is consciously or
unconsciously prompting the dog to alert. Dr. Craig asserted that this type of testing is
essential and should be performed periodically on a random basis. Fifth, Razor was not
given extinction training, which would have discouraged him from alerting to common
items that are sometimes associated with drugs, such as plastic bags used for
packaging. Sixth, there was no evidence that Razor’s training included “stimulus.-5-
generalization,” which conditions a dog trained on one class of drugs to detect all drugs
in that class.
Addressing Razor’s USPCA certification, Dr. Craig testified that there were
a number of flaws in the USPCA certification procedures that rendered this certification
insufficient evidence of Razor’s reliability. First, the USPCA did not perform controlled
negative testing. Second, the USPCA limited the dog's search time to ten minutes,
which is shorter than “real world” searches. Third, the USPCA required only a seventy
percent proficiency, which Dr. Craig considered insufficient. Fourth, the USPCA failed
to focus on the dog's ability to detect narcotics, but analyzed the ability of the dog and
handler as a team. Therefore, according to Dr. Craig, the USPCA could not truly certify
the dog's individual ability to detect narcotics. Fifth, Razor was not certified to detect
methamphetamine, and his training did not prepare him to reliably detect this
substance.
DISCUSSION
Under the Fourth Amendment, a law enforcement officer may not search a
place within the ambit of a person's legitimate expectation of privacy unless the officer
has probable cause to believe that a search of that place at that time will uncover
evidence of a crime. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002), cert. denied,
123 S. Ct. 2278 (2003). Whether applying for a search warrant beforehand or justifying
a warrantless search after the fact, it is the State’s burden to show that the search will
be or was justified by probable cause. See Doorbal v. State, 837 So. 2d 940, 952 (Fla.),
cert. denied, 123 S. Ct. 2647 (2003); Doctor v. State, 596 So. 2d 442, 445 (Fla. 1992)..-6-
In this case the State contends that it met its burden based on the
testimony of Deputy Greco. It maintains that by proving Razor was trained and certified,
it established prima facie that Razor's alert gave the deputies probable cause to believe
Matheson's car contained contraband. This position finds support in several courts,
including the United States Sixth Circuit Court of Appeals and the Georgia Court of
Appeals. Those courts have held that a certification that a dog has been trained is
prima facie proof of the dog's reliability which then may be rebutted by the presentation
of evidence regarding the dog's performance or training. See United States v. Hill, 195
F.3d 258, 273 (6th Cir. 1999); United States v. Diaz, 25 F.3d 392, 395 (6th Cir. 1994);
Warren v. State, 561 S.E.2d 190, 194-95 (Ga. Ct. App. 2002); Dawson v. State, 518
S.E.2d 477, 481 (Ga. Ct. App. 1999). “Although the dog’s ‘credibility’ may be
undermined by evidence of its lack of training or past unreliability, the ultimate
determination as to whether the dog is sufficiently reliable to support a determination of
probable cause is for the trial court as the trier of fact.” Dawson, 518 S.E.2d at 480.
When the evidence presented, whether testimony from the
dog’s trainer or records of the dog’s training, establishes that
the dog is generally certified as a drug detection dog, any
other evidence, including the testimony of other experts, that
may detract from the reliability of the dog’s performance
properly goes to the “credibility” of the dog. Lack of
additional evidence, such as documentation of the exact
course of training, similarly would affect the dog’s reliability.
As with the admissibility of evidence generally, the
admissibility of evidence regarding a dog’s training and
reliability is committed to the trial court’s sound discretion.
Diaz, 25 F.3d at 394.
“Prima facie” means that the proponent has fulfilled his duty to produce
evidence and there is sufficient evidence for the court to consider the issue. Charles W..-7-
Ehrhardt, Florida Evidence § 301.2 (2002). Thus, the proposition advanced by the
State is that the fact that a dog has been trained and certified to detect narcotics,
standing alone, justifies an officer's reliance on the dog's alert to establish probable
cause to search. But our review of the record and of pertinent literature convinces us
that this is not enough.
Law enforcement use of narcotics detection dogs has become
commonplace. And, generally, a trained dog's alert on a vehicle may constitute
probable cause to search. See State v. Russell, 557 So. 2d 666, 667 n.1 (Fla. 2d DCA
1990); Denton v. State, 524 So. 2d 495, 498 (Fla. 2d DCA 1988). The reason, of
course, is the dog's keen sense of smell.
A dog’s nose is uniquely equipped to detect the faintest of
odors. Dogs possess potentially billions of chemical
receptors called olfactory cells. These receptors are located
among large supports inside the dog’s nose named turbinate
bones. Turbinate bones form numerous cylindrical
passages that allow air exposure to millions more cells than
is possible with simple tubular nasal passages, such as
those found in human beings. Laid out, the surface area of
these cells would cover a space the area of the skin on the
dog’s body. In comparison, the surface area of human
olfactory cells would cover no more than a postage stamp.
The effect of the dog’s olfactory cells is not entirely clear.
Some experts claim the result is an enhanced ability to
detect minute levels of odorous material. Others assert that
a canine’s strength lies in its ability to discriminate among
odors. Scientists supporting the discrimination theory
believe that each olfactory receptor responds to a different
odor; the more receptors, the greater the power to
distinguish between scents. The answer most likely lies
somewhere between the two opposing theories.
* * *.-8-
Little doubt exists that dogs have the ability to detect the
smallest traces of odors and to perceive these scents much
better than human beings.
Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection
Dog, 85 Ky. L.J. 405, 408-09 (1997).
Certainly, the olfactory superiority of dogs recommends their use by law
enforcement. But, when determining probable cause to search, it can also be a
weakness.
Many times the possibility of a false alert will be overlooked
by a handler as will the dog’s inability to differentiate
between a “live” scent and a “dead” scent. Each dog will
also vary in its ability to ignore detractors and masking
agents[.]
Max A. Hansen, United States v. Solis: Have the Government’s Supersniffers Come
Down With a Case of Constitutional Nasal Congestion?, 13 San Diego L. Rev. 410, 416
(1976). Indeed, in this case Razor’s trainer acknowledged the tendency of narcotics
detection dogs to alert on the residual odors of drugs that are no longer present.
This underscores one of three central reasons why the fact that a dog has
been trained, standing alone, is not enough to give an officer probable cause to search
based on the dog's alert. Razor's trainer acknowledged that a trained dog, doing what
he has been conditioned to do, imparts to the officer merely that he detects the odor of
contraband. To be sure, as the trainer maintained, this may not be a false alert when
assessing the success of the dog’s conditioning. But for Fourth Amendment purposes it
is neither false nor positive. The presence of a drug’s odor at an intensity detectable by
the dog, but not by the officer, does not mean that the drug itself is present. An officer
who knows only that his dog is trained and certified, and who has no other information,.-9-
at most can only suspect that a search based on the dog's alert will yield contraband.
Of course, mere suspicion cannot justify a search. See Coney v. State, 820 So. 2d
1012, 1014 (Fla. 2d DCA 2002). It follows that proof of facts that could justify only a
suspicion cannot prima facie establish probable cause.
Another problem with predicating a finding of probable cause solely on the
fact that a dog has been trained stems from inherent variables in the training endeavor.
Although we commonly refer to the “training” of dogs, manifestly they are not trained in
the sense that human beings may be trained. It is not a process of imparting knowledge
and skills that dogs want or need. However much we dog lovers may tend to
anthropomorphize their behavior, the fact is that dogs are not motivated to acquire skills
that will assist them in their chosen profession of detecting contraband. Rather, dogs
are “conditioned,” that is, they are induced to respond in particular ways to particular
stimuli. For law enforcement purposes, the ideal conditioning would yield a dog who
always responds to specified stimuli in a consistent and recognizable way, yet never
responds in that manner absent the stimuli. But this does not happen. While dogs are
not motivated in ways that humans are, neither can they be calibrated to achieve
mechanically consistent results.
As our record demonstrates, 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.-10-
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.
Bird, 85 Ky. L.J. at 410-11. 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.
Finally, dogs themselves vary in their abilities to accept, retain, or abide by
their conditioning in widely varying environments and circumstances. "[E]ach dog’s
performance is affected differently by working conditions and its respective attention
span. There is also the possibility that the handler may unintentionally or otherwise
prompt his dog to alert." Hansen, 13 San Diego L. Rev. at 416. The Customs Service
monitors its dogs’ performance in the field. Recognizing that a dog’s ability can change
over time, it maintains records for only thirty to sixty days, then discards them because
older records are not probative of the dog’s skills. Bird, 85 Ky. L.J. at 415. The.-11-
Hillsborough County Sheriff’s Office maintained no records of Razor’s performance, and
his handler had not kept track.
For these reasons, we conclude that the fact that a dog has been trained
and certified, standing alone, is insufficient to give officers probable cause to search
based on the dog's alert. One Florida case has recited additional factors that must be
known in order to conclude that an alert by a narcotics detection dog is sufficiently
"reliable" to furnish probable cause to search. In State v. Foster, 390 So. 2d 469 (Fla.
3d DCA 1980), the Third District identified these factors as
the exact training the detector dog has received; the
standards or criteria employed in selecting dogs for
marijuana detection training; the standards the dog was
required to meet to successfully complete his training
program; the “track record” of the dog up until the search
(emphasis must be placed on the amount of false alerts or
mistakes the dog has furnished).
Foster, 390 So. 2d at 470 (quoting Hansen, 13 San Diego L. Rev. at 417). We agree
with this list of factors, and we especially join in the Foster court's emphasis on the
dog's performance history. A dog's alert can give an officer probable cause to search
only if the officer reasonably believes that the dog would not exhibit the alert behavior
unless contraband was present. Given the “language barrier” between humans and
canines–thus, for example, preventing the officer from questioning the dog further for
corroborative details, as he might a human informant–the most telling indicator of what
the dog's behavior means is the dog’s past performance in the field. Here, the State did
not present any evidence of Razor's track record. Accordingly, we conclude that the
State did not meet its burden to establish that the deputies had probable cause to
search Matheson's car..-12-
We note that, even if we were to accept the State's position that it made a
prima facie showing of probable cause founded solely on the fact that Razor was
trained and certified, that showing was rebutted as a matter of law. The deputies' own
undisputed testimony at the suppression hearing established that they knew that
Razor’s reliability for detecting the presence of contraband in the field was ungauged
and that it could not be predicted based on his particular conditioning. In light of these
facts, Razor’s alert could not have given the deputies probable cause to search under
any test.
We reverse the denial of Matheson’s motion to suppress and remand with
directions to discharge him.
FULMER and STRINGER, JJ., Concur.

for more ideas on liberty see
http://members.ij.net/rex

Rex Curry
[email protected]
[email protected]
[email protected]
http://members.ij.net/rex/
http://rexcurry.net

[Tock]

I need the cliff notes

===

Ok . . . essentially, if you get snagged by a sniffer dog, have your atty check the above, and you may get a "get out of jail free" card.
Seems some sniffer dogs have inadequate training and some handlers don't document their success/failure/false-alerts, and if you get one of these, you're home free.
Read the details . . . or have your atty read the details . . .

--Tock

[956Vette]

Appreciate it Tock!

[Bigboy123]

Good post

[Devourer]

def. good to know

[bermich]

Good post. Also cliff notes:
Most police dogs are NOT rewarded for passing by false scents.
The dogs are rewarded for alerting which makes them more probable to false alert in order to get a reward
Thus, police officers can NOT search a place based on SUSPICION.
An inproperly trained dog (4 weeks without false scent training) is likely to give a false alert even off dead scents. Once an alert by the dog is given the K9 officer leaves the scene not knowing whether or not drugs were ACTUALLY found in the vehicle.
So the dog has no actual hit miss ratio determining if the alert was probable or not.

[Cycleon]

nice post tock

[Seaoro693]

nice post, four weeks thats it how can you rely on anything thats let out into any field nevermind in a critical place like a possible crime scene good for us i guess

[Demon Deacon]

good to know

[Tock]

Appreciate it Tock!

=======

As they say in Antarctica, "No sweat."