Yer right, minty, but it can be (at least part of) a “seizure”. Methinks its Edmonds v. City of Indianapolis. It was talked about a great deal in a recent thread on profiling - I’ll try to track it down.
Badtz Maru wrote:
I gather that this is pretty much standard procedure in Louisiana on I-10, where the cops are trying to snag drugs coming out of Mexico. I got stopped there once myself in the wee hours and given this sort of rigamarole. They pulled me over for “weaving” (I wasn’t) then kept me on the side of the road for over a half hour, quizzing me as to where my travels had taken me (and waiting for K-9s, I believe - they spent a lot of time on their radios). When I asked why I was being detained, and whether I was under arrest, they finally relented and let me go.
Didn’t one of the TV news magazines do a feature story on this sort of thing?
Sua Sponte wrote:
Yes and no. What if the dog “alerts,” but no drugs are found. Instead, the cops do find, say, an illegal weapon. You could still wind up under arrest based ultimately on a false alert.
I acknowledge that this debate is somewhat “silly.” I intended it to be a light-hearted (but still thought-provoking) debate. There are serious Constitutional issues at stake (whether or not the right to face your accuser is one of them), and there are certainly abuses by police in the utilization of drug-sniffing dogs.
I stand corrected, MINTY my man, but that I believe I was at least correct that probable cause for the search (the sniff) was what CARNALK was asking about.
First, the issue of the right to confrontation is a non-starter, because the dog is not a witness. Again, the dog is more of an instrumentality, like a Breathalyzer. You have no right to cross-examine things that are inherenently un-cross-examine-able (ahem). Such things may be in or out (evidentiarily speaking) for other reasons (like reliability (or lack therof) or training/calibration (or lack thereof)), but not due to the inability to cross-examine, because no ability to cross-examine exists at all. Second, you have yet to cite one “abuse” by the police via drug-sniffing dogs. Does the possibility of such abuse exist? Sure. But there’s a zillion ways the cops could abuse the law if they chose to – planting evidence, lying on the stand, kicking the shit out of people in custody – but our system presumes, in the absence of evidence, that cops do their jobs correctly and conscientiously.
Actually, I was having trouble understanding what CarnalK was talking about at all, Jodi. 
I think his post went to whether a drug dog’s alert is probable cause for a search of whatever object the dog hit on (luggage, suspect’s underwear, car, etc.). I don’t know very much about drug dogs and probable cause, but I’d bet that 99+% of the time, the dog hit alone is sufficient to develop probable cause to search. The obvious exception would be if the drug dog was known to be lousy at his job, so that a hit was just as likely to indicate a bag full of beef jerky as it was to indicate cocaine.
On the other hand, CarnalK also seemed to be wondering about whether hearsay evidence can be a basis for probable cause. It can be, although you have to take the circumstances of the hearsay into account. Illinois v. Gates, 462 U.S. 213 (1983); Spinelli v. U.S., 393 U.S. 410 (1969). Those cases involve police informants, not drug dogs, but they’ll have to do since drug dogs don’t provide hearsay evidence in the first place. [The links are below, since the Board insisted on eating my nicely-done case name links.]
Finally, becaus I keep mentioning probable cause in these threads, I figure I ought to toss in the Supreme Court standard for probable cause, which is from page 235 of the Gates decision:
Not very helpful, is it? Welcome to the wonderful world of William H. Rehnquist, folks.
The situation described by Badtz Maru sure sounds abusive to me. The abuse of drug-sniffing dogs on I-10 was chronicled by one of the TV news magazines. (I think it was 60 Minutes.)
On your other point, I agree that drug dogs appear to be regarded in the eyes of the law as “scientific instruments.” Should they be so regarded? I would say not, for two reasons:[ol][li]Drug dogs, unlike scientific instruments, cannot be calibrated.[/li][li]Drug dogs, unlike scientific instruments, are subject to manipulation by the user.[/ol].[/li]
(The following are general comments not directed at any particular poster:)
I do not agree with the attitude that seems to pervade this debate: “Sure the police can lie and manipulate evidence. What are you gonna do?”
I think it is valid to think, and debate, about the ways in which evidence can be manipulated, the better to design safeguards against such manipulation. There are things you can do to address the risk of police manipulating evidence, and I don’t think we should just shrug or throw up our hands when the topic comes up.
In this particular case, we could pass laws requiring that dogs be subjected to regular field tests, including distractions such as hidden food.
We could pass laws ensuring that criminal defendants have the right to put their “accusing” drug dog through such a field test to determine the competency of that dog. (Though that goal might already be achieveable through pre-trial motions. IANA criminal lawyer. Does anyone know?)
That’s a very good point. It would go to the heart of the reasonableness of the search. In that case, I think you could have an admissibility hearing in which whether the dog’s “alerts” are accurate enough to represent probable cause for searching would be at issue.
Still ain’t hearsay, though.
Sua
aside to minty If I interpret your remark "the board ate my nicely worded links’ correctly, do you mean that when you ‘previewed’ your reply, instead of 3 links, it had only one?
if so the problem is the lack of quotation marks with the url code (I finally figured that out).
so, {url=“link”} nice wording {/url} (only replacing the {} with ) and you can do as many as you wish. without the internal quotation marks inside the {url=} thing, it’ll ‘eat up’ the rest of the links.
carryon.
spoke the drug dog’s training history is already subject to review (which would include testing results etc.). The handler would be testifying to that. The case file of the dogs history, should contain the records of the ‘false positives’, so if either the dog or the dog handler had a record of doing false alerts, this should be available as part of the record of that animal.
[QUOTE]
*Originally posted by spoke- *
I agree that drug dogs appear to be regarded in the eyes of the law as “scientific instruments.” Should they be so regarded? I would say not, for two reasons:[ol][li]Drug dogs, unlike scientific instruments, cannot be calibrated.[/li][li]Drug dogs, unlike scientific instruments, are subject to manipulation by the user.[/ol][/li][/quote]
-
Yeah, there’s no little dial on a dog’s nose so that you can set its sensitivity. But so what? It’s common knowledge that dogs can and are trained to reliably indicate the presence of drugs. That’s pretty darned close to “calibration,” in my eyes. If you would like to provide evidence, rather than innuendo, that drug dogs are unreliable at indicating the presence of drugs, please do so. Otherwise, I think the analogy to scientific instruments stands.
-
Since when are scientific instruments impervious to user manipulation? Scientists frequently screw up measurements with their instruments, and they have occaionally been known to manipulate and outright fabricate their data. So unless you want to toss out all evidence based on scientific instruments, this general objection does not support your specific antipathy towards drug dog evidence.
I have no problem with taking steps to fix drug dog problems, if such problems even exist. But the rules of evidence hardly seem the proper place to do it. Those rules are general principles designed to give judges basic guidance on how to handle every conceivable kind of evidence in all kinds of cases. It makes little sense to address a specific problem like drug dog reliability by altering something as broadly (in-)applicable as the hearsay rule. Besides, there are already rules in place that cover this situation, because “scientific” evidence must be both relevant and reliable. If drug dog evidence is not reliable, it ain’t admissible. (And as both Sua and I have pointed out, there is virtually never a need for such evidence during a criminal trial, where the prosecution already has the drugs.)
Do you have any evidence that they’re not already required, either by law or police policy to pass such tests? You seem to be really ticked off at drug dogs in general, not just their abuse in excessively long traffic stops, but you haven’t given me much of a reason to think that there’s a general reliability problem that needs to be solved in the first place.
Analogizing to the breathalyzer, the witness who performed the breathalyzer test must first (unless the defense doesn’t object) lay an evidentiary foundation before testifying about the results of the test. That usually includes such items as the machine’s maintenance history, the operator’s training, and whether it was properly calibrated. No foundation means no admissible breathalyzer test. Presumably, (as I now see wring is also indicating) the same thing could be inquired of the drug dog’s handler, allowing the magistrate at a pre-trial exclusionary hearing to determine whether the dog’s signal was probable cause for a search.
And thanks, wring! That was exactly it!
SPOKE –
I don’t think either of these are correct. First, a dog can certainly be “calibrated” if by that you mean pick up certain types of drugs, though it’s more difficult to train them for amount – not a consideraton anyway, since any illegal drug is considered “too much.” A dog’s success rate and training history can be placed into evidence as tending to show the dog’s reliability as an instrument or tool. Dogs that do not show a high “hit” ratio on field tests are simply not put to work in this field. Second, scientific instruments are certainly subject to manipulation by the user – a radar gun being a prime example of one that might well be. There is an element of trust with all tools given to anyone to use that they (the people) will put them (the tools) to proper use. Third, you have still failed to give any rational for whole-sale “manipulation” of dogs by handlers such as would justify setting aside the dogs’ proven ability (as a class) to detect drugs (or bombs or bodies or whatever).
Your plumber can dick you over. So can your doctor. And the guy who parks your car. At some level in every profession there must be an element of trust that decent people do their jobs correctly and not through any nefarious motivation in the absence of any evidence to the contrary.
But your position so far has not been that the use of dogs should be improved, but that it should be tossed out entirely as an evidentiary matter just because the handlers can, in theory and for God knows what reason, manipulate the dogs. There is a vast gray area between “we should look at how this field can be improved, to make safeguards stronger” and “this evidence should be tossed out because it is hypothetically possible that it was manipulated.” The fact is that there are very few ways evidence can be gathered, stored, and presented that are not amenable to some form of mishandling and/or manipulation. That doesn’t mean we toss it all out.
It is not a matter of law to my knowledge (nor do I think it needs to be) but my (limited) understanding of search dogs is that they are routinely field-tested and records are kept of their accurate alerts to inaccurate alerts ratios. This is imperative because it is perfectly possible that the accuracy of the dog’s alerts and the degree of the dog’s ability will be questioned in court – just like the reliability of any other instrument may be questioned.
The competency of a the dog is established by the field-tests it has already performed, its certifications (if certified), and the ratio of its successful alerts. What would be gained by field-testing the dog after the fact? If I was a criminal lawyer (and I’m not), I would object to an on-demand field-test as not being probative of the dog’s abilities. I probably wouldn’t object very strongly, though, because drug dogs DO detect drugs, and a field-test passed with flying colors by the dog would make the defense look really bad. (Which is why, if I was a criminal defense lawyer, which I’m not, I’d never even ask that this be done.) But can you ask? Sure. You can ask for anything.
Ok. How about some evidence:
From this
“At a minimum, when opposing a suppression motion attacking the dog’s reliability, the prosecution must show that the dog was trained to detect the odors of particular drugs, that the dog has had an acceptable success rate, how the dog is trained to indicate an alert, and that the dog alerted in the proper fashion on the time in question”
Sounds like the individual dogs record is indeed admited into the record.
The article also addresses the issue of traffic stops and unlawful detention, pending the arrival of a drug dog.
and for those who really like to have the case law cited:
all the case laws you’d ever want to have on drug sniffing dogs
and according to this no record on the dog tosses conviction. (don’t get sidetracked by the first case listed where the trace amounts of drugs on $$ alerted the dog- there has to be a substantial amount of cash - in order to be sufficient for the dog to smell it. in that case there was over $30,000 in cash). The second case there demonstrated the courts willingness to toss out a conviction for drug possession, though drugs **were **found, when the drug sniffing dog’s history was not sufficiently documented in court.
I think I’m done now.
{In preview, I see that wring’s post also addresses the findings of reliability of dogs, but I went to the trouble to find the cases, so I’ll post them anyway}.
For what it’s worth, in United States v. United States Currency, $30,060.00, 39 F.3d 1039 (1994), the 9th Circuit found that a dog sniff of currency was not sufficient to support probable cause that the money was drug money subject to forfeiture. However, it was not because of unreliability of the dog at detecting controlled substances, but because of the fact that 75% of the currency in the L.A. area has drug residue on it.
This Idaho case describes an unsuccessful challenge to the reliability of a particular dog, and should give an idea of the kinds of things that can be argued.
oops. Forgot to point out that in the first link, you’ll see that I was apparently wrong about the ‘false positives’ being potentially admitted into the record.
However, consider this. One purpose of the drug dog is to save the officers time by alerting to only those who have a high probability of having the drugs on them in the first place.
The officers, based on the dog’s alert, will spend considerable time searching the car/suitcase/whatever. A high false positive ratio for an individual dog would waste the officers’ time, and likely lead to the dogs retraining or retirement.
How many ‘false-positives’ are going to be admitted into the record, though? Most people who are not guilty who have had the dog alert on their possessions are not going to take the case to court. The only cases going to court are the ones where they find drugs, or the rare ones where no drugs are found but other evidence of crime is found.
The only way the dogs are saving the cops time would be if the dogs were present with the officer who pulled you over. In most cases, the cop pulls the person over and has to wait for the K-9 unit to arrive after the arrestee refuses the search. In every case I have ever heard of, once the dogs get there, they will alert (or at least the cops will say they did) and they will do the full search anyway. The only purpose they seem to serve (in pull-over cases, I’m not attacking their effectiveness in routine searches at the border or when they are searching property after a warrant to search has been obtained) is to give the cops probable cause to do a full search when there is none.
Every time a cop has asked to search my vehicle, I have given consent. Sometimes, I even had drugs in the vehicle, but they were never found. Only a couple of times have they done a very thorough search - once when I was pulled over leaving a known drug dealers home, and once when I was with a friend who was holding a decorative mirror my mother just gave her. In both cases they pretty much trashed my vehicle, searched the gas tank, trunk, etc. Most of the time when you give consent to search they will do a cursory check, but they have overlooked roaches in my ashtray, joints in my pocket or under the seat, etc. If I refused to allow them to search, they would have brought dogs who probably would have found the drugs.
THese days, on the rare occasions that I carry amounts bigger than I can eat between the time the cop turns on his lights and when I pull over, I have a hiding place that would never be found, even under the most thorough of dogless searches…it would take drug dogs to give them an idea where it was, then they would have to disassemble a portion of my car to get at it. A damn good reason to always consent to a search. 8^)
Since this whole thing started off with a discussion of the hearsay rule, I figure I ought to just toss in a couple more hearsay exceptions for the benefit of Badtz:
Rule 801(d): A statement is not hearsay if … (2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity …
Rule 804(b): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness [including unavailability due a criminal defendant’s invoking the privilege not to testify]: … (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
Any questions about the evidentiary value of your admissions of criminal activity?
But the real reason I’m posting is simple: do you have any serious evidence that “false positives” are routinely covered up? Or that police really do prompt the dogs to alert so that they can search whenever they feel like it? The people you seem to be getting these anecdotes from appear to be quite likely to have had illegal substances in their cars or on their person at one time or another, which may alone be enough to legitimately alert the dog to the presence of drugs.
Here’s an interesting tidbit, for those posters putting such great faith in drug-sniffing dogs. The following is from a brief to the Supreme Court in the case of City of Indianapolis v. Edmonds :
Not exactly the reliability you’d expect from a “scientific instrument,” huh?
Circumstances like this make me wonder if police officers don’t somehow “cue” their dogs to alert, either consciously or unconsciously, when the police officer believes the suspect may have drugs. Cueing is a phenomenon long known in animal training, the most famous examples being the so-called “counting horses” of yesteryear. They clopped out the right responses to mathematical questions not because they were really equine calculators, but because their trainers gave them unconcious (or sometimes conscious) cues to stop “clopping” when they reached the right number.
There is an Illinois case called People v. Lefler; I don’t have a cite immediately available. I recall it because the opinion’s author, an Illinois intermediate apellate justice named Kuehn, was brilliantly and humorously written. The case dealt with a suspect who was tracked by bloodhound, specifically a German Shepard named Cain. The defense attorney sat by while the prosecutor elicited testimony from the dog’s handler about what the dog smelled, how strong a scent it was, and how confident the dog was that he was on the right track.
The case on appeal by way of an ineffective assistance of counsel; the defendant having waived any other recourse to the testimony by failing to object at trial.
The opinion’s first sentence was: “This case features the mark of Cain and questions whether counsel was able.”
In any event, I gleaned from the case that Illinois forbids “bloodhound testimony” by statue – that is, no testimony about dog tracking is permitted. I have no idea what strictures, if any, Illinois places on testimony about drug dog alerts. I merely post to give a shout out to Justice Kuehn of Illinois, author of some truly superb legal writing.
- Rick
If you go back and take a look at the case spoke’s brief cites, you’ll see that “approximately 1,450 vehicles were sniffed by the dogs. The dogs alerted to 28 vehicles; and, after a full search, only one person was arrested for possession of illegal narcotics.”
So the dogs alerted on 1.93% of all the cars sniffed. That’s not a whole lot. Moreover, the case does not say that the cops failed to find narcotics in 27 of the 28 vehicles. It just says that they only arrested one person for possession. It seems likely to me that they let a few people go when all they found was some trivial amount of weed. (This was a roadblock system most likely designed to stop or intimidate drug traffickers, not some zero-tolerance nonsense.) It also seems reasonable to assume that the dogs alerted on some of the vehicles because they had previously been used to carry drugs.
Of course, both of those thoughts are just speculation. I certainly do recognize that misuse of drug dogs exists. I’m just not sure it’s all that widespread. Anyway, thanks for the cite, spoke-!
Here are a couple more tidbits from that Supreme Court brief:
spoke, when I did the prior searches about the dogs, I also came across the web sites of many dog training schools. In one of them (for instance), they emphasized that their guarentee was for a year’s period of time, because the dog had to be maintained properly in order for them to keep their efficiency. So, sounds like in the case you showed, they needed to do a better job at keeping the dogs trained.
The purpose of the dog is to give the officers a better idea of whos’ car/locker whatever should be searched. I would again point out that if the cop is spending half their shift searching cars where nothing was found based on the dog’s indication, then the dog’s gonna go for retraining soon.
Think of the metal detectors that you walk through. If they’re set too high, folks with 2 quarters in their pocket will set them off. If they’re set too low, the Uzi shipment will walk through. If the metal detector gives off too many ‘false positives’, the guards spend too much of their time searching where the searches bear no fruit. It’s in their best interest to make sure that the detectors are set at reasonable levels. The same applies to the dogs.
I’d given you three links, one of which had links to lots more court cases. You’ve given us a couple personal experiences and one case, to prove your point that police dog handlers can manipulate their dogs. However, I said at the top of the page, ‘yea, it can happen’, though my position is that I don’t see evidence to suggest that it’s a rampant system wide problem needing correction. The one case you found does not show a system wide problem.
WRING says to SPOKE –
Without wading back into this, I’ll just point out that SPOKE has not, technically, given us a case. He’s given us a brief by one party to a case, which is not at all the same thing. A brief is a party’s argument, their version of events, their presentation of how they would like the Court to rule. A brief does not have the force of law, nor does it even necessarily contain correct interpretations of law.
In fact, the case SPOKE cites to, Indianapolis v. Edmonds, was a road-block case wherein the road block was found unconstitutional for other reasons. The Court did not even address the use of drug-sniffing dogs, much less the propriety of that use.