The Unreasonable search? thread about police monitoring heat emissions from homes got me thinking about drug-sniffing dogs.
Now bear with me for a moment:[ul][li]“Hearsay,” according to Black’s Law Dictionary, is a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.[/li][li]A non-verbal “statement” can be considered hearsay. A nod or a head-shake, for example.[/li][li]When a drug-sniffing dog “allerts,” the dog is in effect making the (non-verbal) statement “I smell drugs in there!”[/li][li]The fundamental principle underlying the hearsay rule is the right of a defendant to cross-examine the witnesses against him.[/ul][/li]
Now given the above, could a drug defendant successfully exclude evidence that a drug dog “alerted” based on a hearsay objection? Think of the argument:
Your honor, the dog isn’t here to testify, and even if it were, I can’t cross examine the dog. I can’t ask him, “Now Fido, was it drugs you smelled, or maybe that bag of Kibbles and Bits in the back seat of the defendant’s car?”
I’m especially interested in replies from the SDMB legal community, but thoughts from all are welcome.
There would be no point in arguing that a drug dog’s alert was hearsay. I mean, the cops already have the coke you had stuffed down your pants, right? So the prosecution would never need to introduce the dog’s “I smell drugs!” statement to prove that you had drugs. Moreover, hearsay is admissible when determining whether a police officer had probable cause to conduct a search, so it wouldn’t make a difference at a pre-trial exclusion hearing either.
Besides, there are all kinds of exceptions to the hearsay rule. [Federal Rule of Evidence 803](http://www.law.cornell.edu/rules/fre/overview.html#article viii) lists several exceptions that could get a drug dog’s “statement” past any hearsay problem: present sense impression; excited utterance; and then existing mental, emotional, or phsyical condition.
Yes, but anyone who works with drug-sniffing dogs can tell you that there are sometimes “false alerts,” particularly where food is present. Also, I hear (but don’t know first-hand) that dog handlers can get an “alert” pretty much whenever they want one.
For these reasons, I don’t think a strict dog/instrument analogy holds up. With scientific instruments, there are objective standards of performance.
Now I suppose you could put drug dogs through periodic field tests, including tests where food is present, but I don’t know that this is currently done.
Besides, even field tests would not solve the problem of handlers “cueing” their dogs to alert.
I do see a problem with the “present sense impression,” “excited utterance,” and “then existing mental, emotional, or phsyical condition” exceptions now that I think about it.
We don’t even know with certainty what the dog is “saying.” Is he saying “I smell drugs!” ? Or is he saying “I smell food!” ? Or is he not “saying” anything, but simply “alerting” in response to non-verbal cues from his handler? Shouldn’t we at least be certain what is being “said” before we allow a “statement” to come into evidence without cross-examination under these exceptions to the hearsay rule?
ok, if you’re going for ‘what the dog is saying’ vs. the dog as an instrument, then you have to view the handler as the interpreter, since it’s a sure bet the defense attorney doesn’t speak K-9.
And while I agree with you that the inherant issue of ‘what if the cop lied’ is there, it frankly is always there. and if the defense attorney has any specific reason to be concerned (“isn’t it true there was a pile of warm hamburgers on the back seat of my client’s car?? Hmmmm?”), they should cross examine vigorously.
Let’s not forget that even if the handler is fudging the ‘call’ by the dog, there would be the actual drug evidence as well (unless, of course, you’re assuming that those were planted)
Doesn’t matter what the declarant is “saying,” as long as the circumstances of the statement are as described in the Rule 803 exceptions. It’s pretty hard to argue that a barking dog isn’t excited; hence, it fits within the excited utterance exception, and arguably the other two I mentioned above.
But since a dog by definition can’t be a declarant, there’s never a hearsay problem in the first place.
Perhaps. But let’s get beyond the letter of the law for a moment and ask whether there should be a hearsay problem. (After all, rules can be amended, can’t they? The rules committee could re-define “person,” or make other changes to address the concerns I am raising.)
You would agree, would you not, that the purpose of the hearsay rule is to ensure my right to cross-examine witnesses against me?
If the dog’s “testimony” is allowed into evidence, is that principle not being violated?
And I would say that it most certainly does matter whether we know for sure what the dog is saying. It may not even be a “statement,” if the dog is responding to its handler’s cues.
Nor is this analagous to a case involving a translator, IMHO. In a case involving someone who speaks a foreign language, if I don’t trust the prosecution’s translator I can always hire one of my own. That is not an option with a canine.
People are mentioning the drugs found as being enough evidence; if the dog’s alert was cause for the search wouldn’t the proceeds of the search have to be thrown out? Poison tree and all that? (rules are different in Canada, I know). Are the rules allowing for a search open to hearsay evidence?
The dogs 'testimony" is not admitted into evidence- it would be a silly trial indeed where they arrested someone on the basis the dog indicated drugs- but they found none. “Rintintin- bark once if you smelled pot, twice if you…”
However, the dogs response can be “probable cause”- which is entirely different that “hearsay”- and there is entirely different rules for what is & is not “probable cause”. Your question is legally meaningless.
Since CarnalK didn’t hear minty green the first time:
Hearsay applies to the presentation of evidence, not the gathering of it. If someone comes up to the police and says “Hey, I saw that guy stuff some drugs in his bag”, the police can search your bag, even though the statement was hearsay. If, after the drug-sniffing dog comes up to you, police find drugs in your possesion, then there is no need for the “evidence” of the dog. If they don’t find any drugs, a prosecutor would have to be crazy to introduce just the dog “evidence” and expect a conviction.
Hey, I don’t care if you want to cross-examine the dog. Knock yourself out. Maybe if he doesn’t explain himself adequately, you can get the judge to hit the doggy with contempt charges and send him to the pound to reconsider his uncooperative attitude.
So we should structure all our rules of evidence so that otherwise relevant evidence is excluded if there is a possibility that it was tainted or fabricated by a police officer? Finally, a court system that O.J. would be proud of!
Well, that’s one of them. Another is that second-hand evidence is inherently weak, in that it cannot be easily proven.
Not if you consider the dog to be an instrument, as opposed to a person. How do you cross-examine a Breathalyzer?
Drug dogs, body dogs, rescue dogs, and other types of search dogs are trained to “alert” for the subject matter of the search in a different way than they communicate things like “I’m hungry.” Airport drug dogs, for example, are often taught to alert by merely sitting down next to the item or luggage where they find something, and to stay there until “released” by their handlers. Sure, you might say that every dog sits down once in a while – what if he just got tired? – but the handler will testify that a particular behavior on the job – barking, digging, sitting, whining, whatever – meaning a particular thing (“I found something!”) in the context of the job. As WRING has said, there is no way to overcome the problem of handlers who might prompt a false alert, but this hardly strikes me as a serious problem. Why would the handler want the dog to alert unless he knew of the presence of drugs? If he knew of the presence of drugs already through other means, why bother to do a dog search?
To which THE RYAN, with his usually snippiness, replies:
CARNALK’s point, which is a valid one, is that a dog sniff is itself a search and as such is generally subject to the requirements of probable cause. If there was no probable cause to have the dog search you in the first place, then the evidence found because of that search would probably be suppressed. MINTY’s quote, set forth above (and unless I am misreading it), appears to confuse the hearsay (the “testimony” of the dog) and the probable cause for the search (the reason to let the dog sniff in the first place). Obviously, these are not the same thing, since without the probable cause, the dog doesn’t sniff, and the dog then has no evidence to “talk” about, as hearsay or otherwise. Oh, and barring the existence of exigent circumstances, the police canNOT search your bag just because someone said “hey I saw that guy stuff drugs in his bag.” As far as CARNALK’s question (“Are the rules allowing for a search open to hearsay evidence?”), the answer is “sometimes.” The testimony of a known reliable informant may be enough to justify a search; the testimony of some anonymous tipster, with no indicia of reliability, may not be. Certainly the rules for a search are looser than the rules for admissibility at trial; hearsay may form probable cause for a search even when that same hearsay would not be admissible as evidence.
No offense, but this is just silly. The dog’s “evidence” is never introduced at trial. The drugs are.
Further, the dog’s “evidence” is self-correcting. If there are no drugs found when the dog starts barking, no one is arrested, and there is no trial at which we have to worry about hearsay evidence.
The drugs found in the car are inadmissable if the search wasn’t legal. Currently, having a dog alert is probable cause for a search, but it probably shouldn’t be. They don’t need probable cause to have the dog search you, though. Around where I grew up, if you refused to allow the police to search the car, they would hold you until the K-9 unit showed up, then the dog would indicate there were drugs (ALWAYS) and the car would be searched. Sometimes there were drugs, sometimes there weren’t.
As I mentioned in the thread about scanning private residences for unusual IR emissions, there will probably be devices better able to detect faint traces of drugs than a dog in a few years. I bet when they do get them they will not replace dogs, simply because they will be more difficult to manipulate into giving a false reading. I have NEVER heard of a case where drug dogs were called in to sniff for drugs that didn’t result in a search by a human, though you’d think there would be cases where the dog didn’t smell anything and the cops let the person go.
Next time I get pulled over and I am asked if the car can be searched, I think I’m going to refuse and let them bring out the dogs. I have a new car, have never had drugs in it, but I’ll bet my bottom dollar the dogs will alert.