Challenging drug dog reliability is not impossible. But it's going to take more than just showing the dog has a terrible track record in the field.
See United States v. Bentley, No. 13-2995 (07/28/2015)
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Why Do Unreliable Drug Dogs Win Their Cases?
Defendant challenged the reliability of the Lex, the police drug dog. This police dog sniffed Defendant's car and alerted to the presence of 15 kilos of cocaine.
Defendant's defense revolved around the idea that Lex had a propensity to alert. This just meant the defendant established that the dog alerted nearly every time he was called upon, regardless of whether or not drugs were ever present.
Facts
Defendant was driving from Chicago to St. Louis.
A Bloomington police officer observed a lane violation and stops Defendant. The officer notices that Defendant is inconsistent with information about ownership of the car.
Additionally, the officer notices that the spare tire is in the back seat.
Lex, the drug dog, is called out. Defendant consents to the sniff, and of course, the dog alerted. Fifteen kilos of cocaine are eventually removed from a hidden compartment. Defendant also had unexplained levels of cash on him.
Defendant was convicted and sentenced to 20 years in federal court.
The Dog's Field Record
Defendant attempted to attack the drug dog’s reliability.
First, defendant discovered that Lex was prone to signal in the vast majority of his cases. In 93% of the times the dog was brought out to a job, the dog signaled for the presence of drugs.
His overall accuracy rate in the field was not much better than a coin flip (59.5%). This percentage measured the number of times Lex alerted and his human handler failed to discover any contraband.
The Dog's Training
Defendant technically challenged the dog’s unreliable training.
We know that the United States Supreme Court has recently downgraded the significance of the sniff dog’s field performance records. See Florida v. Harris, 133 S. Ct. 1050, 1056 (2013). Instead, “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Harris, 133 S. Ct. at 1057.
However, this argument did not get off the ground.
Dog Wins Even With Bad Field Record
The reviewing court acknowledged that the Defendant made a strong showing against the drug dog’s reliability and that the defense “put on a good case.” pp 10. Defendant “presented a fair amount of evidence that Lex was at the back of the pack” of his graduation class. pp 10.
On cross examination, Defendant was able to establish that the president of the dog training company that trained Lex was embarrassed by this dog’s alert rate.
Additionally, the defense showed that:
- Lex failed two simulated vehicle search tests
- Lex was removed from the field for more training
- Lex has learned he gets rewarded for alerting regardless if drugs are found
In fact, the appellate court agreed with many of the defense attorney’s points. The court actually wrote:
This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause. pp 10.
Nonetheless, the reviewing court did not disturb the trial court's finding that the dog was reliable.
Bad Dogs Still Win
The court noted that other courts have accepted rates less than 59.9%.
The court noted that:
We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence. pp 11.
The court stated that Lex’s mixed record was a matter of concern. Yet, in this case there was no other reason to override the district court’s determination of probable cause. The court hinted that even if it ruled that the dog was unreliable under a totality of the circumstances test there was still enough evidence justifying the search.
Don’t forget that the cop’s knew:
- Defendant Had Different Stories
- Defendant Couldn’t Explain Why He had So Much Cash
- Spare Tire in Odd Place
Take-A-Way
The lesson for us here, is that we cannot base a challenge to a drug dog's reliability entirely on the dog’s field performance records, no matter how dismal the records.
A successful challenge will likely have to include two other major areas of attack.
- The inadequacies of the training program
- The actual sniff
That did not happen here. This case was based entirely on attacking the dog’s pity field performance record. This is not going to be enough.
Why?
Now, the reasons that explain why bad dogs still win are not cited here. But I just finished recording one hour and fifteen minutes of an audio course exactly on this topic. Stay tuned for more info on the course. Harris discusses why the courts are loath to do something about a dog with a shoddy field record.
Remember, the Harris court said that in a false positive situation, the dog may be alerting to recent drugs that have been removed or to drugs that are actually present but so well hidden that the police don’t find them.
Second, the court said that with a false negative (that is when the dog does not alert but should because drugs are actually present) the problem is that those will never get recorded. No alert, no search, no arrest, no case and no data.
Thus, the court stated a dog's reliability can really only be determined by examining the controlled setting of the dog's training and controlled testing of a dog’s performance. Field records, no matter how low don't accurately paint a reliable way to measure a dog's reliability.
Therefore, any challenge in court to a drug dog's reliability must directly critique the dog's training and the dog's actual sniff in the case.
Stay tuned for a more information on this topic.
For more information, jump over to my resource page on police drug dogs.
