Usually, it is a good sign for the defense if they can convince the trial judge that the drug dog in the case was unreliable.
Not in this case. See United States v. Bentley, No. 13-2995 (07/28/2015).
“We acknowledge that [Defendant] put on a good case. He presented a fair amount of evidence that Lex was at the back of the pack.”
The court also wrote that:
“The evidence [Defendant] was able to gather suggests that Lex is lucky the Canine Training Institute doesn’t calculate class rank. If it did, Lex would have been at the bottom of his class.”
Can you believe it?
The court took special note that:
“…Lex’s overall accuracy rate in the field (i.e., the number of times he alerts and his human handler finds drugs) is not much better than a coin flip (59.5%).”
Ok, so you get the picture. How in the world does defendant loose this case.
Totality of the Circumstances
There are two main explanations for why the drug dog manages to prevail in the criminal litigation of this case.
The trial judge did a great job of reminding us that drug dog analysis, like all other fourth amendment inquiries, is a totality of the circumstances test. Indeed, that was kind of the whole point of Florida v. Harris.
This means that if even if a criminal defendant is able to successfully attack the credibility of a drug dog the prosecution can always “make up” for it by relying on other independent factors.
For example in this case the court noted that …
- Defendant Was Nervous and Jittery
- Defendant Was Inconsistent About Car’s Ownership
- Defendant Was Inconsistent About Where Going
- Defendant Couldn’t Explain Why He had So Much Cash
- Spare Tire in Odd Place
None of these factors alone seems very convincing. But the magic of a “totality of the circumstances” is that the whole is greater than the sum of its parts.
What Do You Mean By “Unreliable”?
Where I want to focus your attention is on the second explanation for why Lex is still able to win his case.
It has to do with with how we measure a drug dog's “reliability.” You see, the court system has told us, repeatedly now, that they place little value on a dog’s actual field performance results.
Yes, you read that correctly.
This is one of those areas in fourth amendment law that is non intuitive. It’s one of those corners of the law completely overlooked and misunderstood by non lawyers (and even some lawyers). But It is a fact that comes with a high price if not understood.
“False Positives” in The Field
We have to go back to the Harris court to get a handle on this.
Harris discusses why the courts are loath to do something about a dog with a shoddy field record. The court explained what is going on when a dog is actually in the field, at work in a live sniff scenario.
Here is how they explain what is going on:
When a dog “alerts” and no drugs are actually found that is a “false positive.” It just means the dog signaled for the presence of drugs. The police actually searched for the drugs, but the police did not find any drugs.
The court said that the a dog may have actually been alerting to the residual odor of drugs. The dog did smell the odor of drugs. Perhaps, drugs were recently in that location. If the drugs were there and removed, it is possible the dog was detecting the residual odors.
Additionally, with “false positives” how do we know the the drugs were actually there but the they were so well hidden that police failed to find them? This is possible if the drugs are in such a small quantity that they could be hidden in an “unfindable” location.
“False Negatives” in the Field
But wait there is more.
We were talking about the problems with “false positives” in the field. The court also said something about “false negatives.”
A false negative is when the dog does not alert but should because drugs are actually present. This is a problem because it is yet another example of an “unreliability” point that does not get recorded against the dog when it is in the field.
You see if there is no alert when there should be then there is no search. If there is no search there is no arrest. If there is no arrest there is no case. And without a case there is no data.
This is Why Unreliable Drug Dogs Win Their Cases
This is the only explanation for why police dogs with even worse records than Lex still win their cases. The court in this case noted that:
“Other circuits have accepted field detection rates less than Lex’s 59.5%. See, e.g., United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014) (57%); United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014) (43%).” United States v. Bentley.
And trust me the list of drug dogs with horrific field records who still win their cases is much longer than what this court cited.
In the field, the court says the possibility of “false positives” and “false negatives” together destroy any reliable measure of the dog’s actual reliability. This is why in the eyes of the courts field record percentages and actual job performance records carry little weight.
Man, how do I get that job?
In future, articles I’ll discuss how a court actually measures a drug dog’s “reliability.” For more information, jump over to my resource page on police drug dogs.