wring, if you think about it, the sort of abuse I’m talking about would not tend to produce a great deal of evidence. Do you think cops go out of their way to make a record of a dog’s “false alerts?”
What happens in a typical case, say one involving a motorist pulled over? The cops bring in the K-9 unit, the dog alerts, and a search ensues. If nothing is found, the motorist is sent on his way. Now unless that motorist is incensed enough to file suit, that’s the last anyone ever hears of the false alert. Come to think of it, even if the motorist files suit, the suit is likely to be promptly dismissed on the ground that the police had at least “probable cause” to conduct the search.
In a few cases where an attorney gets especially diligent, the high rate of false alerts does come to light. (My posts contain three examples of this, not just one.)
How are we going to know if a cop is “cueing” his dog? Maybe the cop is pretty good at guesstimating who is likely to be carrying drugs, so that even “cued” alerts have a fair rate of hits.
My point is that the system lends itself to abuse. It at least creates the possibility that a police officer who is looking for an excuse to search someone can manufacture a reason. Do I have evidence that this is happening? Other than the cases I’ve cited (which I think are pretty good circumstantial evidence), no. But even if I can’t prove unequivocally that it is happening, I have already shown how it could happen.
If the door is open for abuse, then I think we should have some measures in place to counter that possibility. My earlier suggestion of mandatory periodic field trials for K-9 units would be a good start.
What you are failing to understand is that the system is already largely self-correcting. There is no need to mandate “periodic field trials” any more than there is a need to mandate that equipment be properly repaired and maintained. That already happens.
Why? Because as a foundational matter, a party seeking to attack such evidence and have it excluded could point to shoddy training/maintenance as reason to have the evidence thown out as unreliable: “The dog smelled drug. But the dog isn’t very reliable, is he? He hasn’t been field-tested in a year and a half, has he? And he has a history of false alerts, doesn’t he?” “My client blew a .08 on the Breathalyzer. But you hadn’t calibrated the instrument for the entire month before, had you? And you hadn’t checked to see if it was working properly that night, did you? Plus you dropped it on the sidewalk before the test, didn’t you, and it made a noise like this – SPROINNNG – and a few parts fell out of it, right?”
The party seeking to admit evidence must show that the evidence may be relied upon as accurate. If they can’t show that when challenged by the other party, the evidence is excluded. So the police already train their dogs and their officers regularly, and keep records of that training, because that’s the only way the evidence is going to be admitted in court in the first place.
You are very kind to point out my “failure to understand.” I’ll try to concentrate harder.
The fact is that the Courts (at least some of them) do not require any evidence of periodic field trials. For that matter, they don’t require any evidence as to the dog’s performance history.
Here’s some language from the case of U.S. v. Ortiz (U.S. District Court, Nebraska District), where the Court upheld a drug conviction resulting from a drug-dog alert outside the Defendant’s apartment:
Thus the Court specifically ruled that it was not necessary to show the dog’s performance record. (And it certainly was not required that the dog undergo periodic field trials.)
My background is in corrections. I’m seen as the devil incarnate by both prosecutors and defense attorneys - prosecutors and cops think I’ve got too much sympathy for criminals, and defense attorneys’ have seen me as a prosecution witness too many times to believe I’m on their side.
I have seen evidence of abuse by cops. I know it exists. Just not to the degree that you seem to believe (ie that all/most/many drug busts by drug dogs are inherently unbelievable)
**. In the first place, it is an Atypical case where the drug sniffer is brought in on a pulled over motorist (except perhaps in the drug corridors in FL or some such specific place - in any event, it certainly isn’t the mainstay of the routine stop by police - it would take far too much time - a traffic bust generally takes the police unit out of commission (ie unable to respond to other calls) for what- 10 - 20 minutes? whatever, it doesn’t matter. You’d have to wait for the call to the k-9 unit, have the dog sniff, then search - all of this would take more than one police unit off the street for a significant part of their shift. it ain’t gonna happen on a routine bust.
Now, it might go on for specific area of town on specific days, at a specific highway etc. But not even then would every car have a dog unit.
Then, spoke you again make this assertion:
3 whole examples? From a brief to a court case (thanks Jodi for that catch). A brief, you see, is one sides arguements - it would be, for example, the same as just allowing the dog handler to testify, without a chance at cross examination and refutation by the defense attorney ( ) - you can see, perhaps, why that might not be compelling, especially since one link I provided gave many cases where dog evidence was accepted by the court (after a full evaluation of all the evidence, pro dog and anti dog)?
And, Oddly enough, the brief you mentioned proves the point **I ** was making, in that when there’s a dog that seems to be having a high rate of false positives, they don’t just rely on that - they brought in a second dog - 'cause to search all of the cars would take too much time. In addition, there was this notation :
**, which also supported my above statements about the trainers statements. So, when the dog isn’t sufficiently trained, there’s a possability of high false positives, and whaddyaknow - the police take other measures - as in, look for other suspicions, bring in a second dog etc.
your point
what in the world makes you believe that a ‘bad cop’ would even need a dog to offer up an excuse to search some one? “I smelled marijuana” works, ya know.
The problem, as I see it, is that any time you have humans involved, there is a possability of shenanigans. But, frankly, machines aren’t fool proof either. So waddya gonna do? I suggest (once again), that absent any reasonable evidence that wholesale fraud/conspiracy is going on, that dog evidence, in general, be accepted. Naturally, in any individual case, if evidence of fraud exists, it should be brought up and used to discredit in that case.
One minor correction to my last post. The quoted language is not from a decision upholding a conviction, but came in the context of a failed motion to suppress evidence.
Jeez, SPOKE, I didn’t mean to insult you. 'Pologies, 'poligies; put your feathers back down.
I find that very difficult to believe as a general proposition. Surely we can agree that such evidence, if challenged as to foundation, must be backed up with proof of reliability?
Here you are talking about an affidavit for a search warrant, not evidence at trial. (Apparently the defendant was challenging the affidavit’s sufficiency, yes?) The affidavit for a warrant doesn’t have to set forth every detail of the dog’s credentials; it only needs to establish the dog is, in fact, a drug dog. For that matter, the affiant-officer doesn’t have to give every detail of his education and training in the affidavit either – but if challenged in court later, he sure does.
Again, this is for a search warrant, not for evidence at trial. I would also note, parenthetically, that just because you consider “periodic field trials” to be necessary to proving a dog’s acuity (and I would tend to agree), that doesn’t mean a court must. Maybe if the dog has been properly trained, is consistently employed without substantial breaks, and consistently “alerts” successfully, that would be good enough to prove to a court that the dog is doing its job correctly.
The language I quoted, though it came from a brief, listed three court decisions (not briefs) each of which, in turn, chronicled multiple false alerts.
Regarding Florida’s use of two drug dogs on motorists at roadblocks, I would suggest that false alerts by two drug dogs on the same car is strongly suggestive of “cueing” by the police officers. (Perhaps unconscious cueing.)
Jodi wrote:
It was an across-the-board motion to suppress evidence garnered in the search, including a challenge to the affidavit.
The opinion specifically addresses the issue of “reliability,” as follows: “To establish the [narcotics detection] dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs. [Cits.]”
Yes the judge was talking about the affidavit requirements, but it is clear that the Court accepts the mere fact of the dog’s training as prima facie evidence of the dog’s reliability, even in the absence of evidence regarding the dog’s performance history.
Yes, three whole examples. vs. a page full of court decisions that were challenged and upheld.
The case where there were 2 dogs -
the dogs may have been poorly trained (which would have come out in the subsequent court cases)
The dogs apparently were also over worked (which would admittedly increase the % of false positives)
3 and because of the serious # of false positives, the cops involved brought in the second dog fer cryin out loud! - whew. which means, that when the dog in question’s false positive ratio gets too high, it’s too high for the cops - 'cause it wastes their time and they don’t like it, so they do something different.
false alerts by the dogs can come from any of these potential issues: a. poor training b. poor handling. c. over work d. lack of adequate follow up training and e. cop intentionally miscuing the dog. You keep insisting that ‘e’ is the most likely scenario. I’d think a- d most likely. Sure e’s possible, but, again, absent evidence to the contrary, never assume it’s a zebra when a horse is more likely.
Now, what that court case doesn’t go on and say is what happened with the dogs in question after that session? were they retired? were they sent back for extra training? 'cause it’s probable that they weren’t kept on duty doing that poorly of a job. sheesh. Sure, they kept the cases open where they did find drugs. 'cause they found drugs, you see.
Which, in turn, proves nothing. I mean, c’mon SPOKE, did you look at those cases? In none of them was the capabilities of the dogs even questioned. Though there were, apparently false-positives in all cases, that wasn’t the issue at all, so citing the case for the proposition that dogs should not be relied upon is borderline intellectually dishonest, IMO (not be you, by the brief-writer); that’s not even what the cases were about. In fact, in Doe v. Renfrow, the Court said:
OR it might indicate the presence of some odor taken by both dogs to be drugs (such as might be found in a vehicle where drugs had been present before).
But the part we are talking about is a motion to quash the warrant due to insufficiency of the affidavit.
As I said, the judge may well have done so. That doesn’t mean he was wrong to do so.
For one thing, the cops are only going to bother with the dogs if the person they pulled over refuses to allow the police to search. People who refuse to allow their police to search their car are more likely to be carrying something illegal. The cops are using various kinds of profiling to make that decision when asking to search the car. Some of this has to be racial - every time I have been pulled over with a hispanic, black, or long-haired person in the car they have asked to search. I don’t think cuing has much to do with it in traffic stops - if the cop didn’t think you might have drugs, they wouldn’t have asked to search the car.
I view both the use of drug dogs and the use of heat sensors (discussed in the other thread) to represent a serious erosion of our Fourth Amendment rights. It astonishes me that more posters do not share this concern.
Spoke, allow me to introduce you to the majesty that is http://www.findlaw.com It’s free (at least for the moment–I hear it just got bought by Westlaw), and it lets you read all kinds of cases and statutes before you start writing about them.
For instance, here is U.S. v. Sundby, the primary authority cited by the brief you quoted above. As Jodi already pointed out above, it’s generally a bad idea to take a party’s characterization of a legal authority at face value. Lawyers get paid to spin the law in favor of their clients, and that is what has happened in this brief.
Now it’s true the court held that “A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs.” (citations omitted). However, the court also goes out of its way to say that:
(quoting Franks v. Delaware, 438 U.S. 154 (1978)) (citation omitted).
In other words, the fact that the dog has been trained and certified is enough probable cause for a magistrate to issue a search warrant. Nevertheless, if the affiant lies about, misrepresents, or omits the fact that the dog is a loser when it comes to detecting drugs, the defendant can still get the evidence tossed out. (Which is the procedural way it must be, since the defendant is not there challenging probable cause for a warrant before it’s even been issued.)
Also note that under the facts of the Sundby case, the police suspected a particular item of mail to contain drugs, so they miced that package in with many others. Guess which one the dog hit on “in a positive, aggressive manner”? That says good things about the dog’s detecting abilities, unless you want to argue that the officer was standing there pointing out the particular package in the pile that the dog was supposed to be hitting on.
Finally:
The government can’t “erode” a right you ain’t never had. Can you point to a time in American history when the Fourth Amendment prevented police from using drug dogs or heat detecting equipment? Or more to the legal point, when did anyone ever have a “legitimate expectation of privacy” in the heat that escaped an attic into open air, or the scent of drugs that emanated from the trunk of a car?
I will take exception (in the wrong thread) to the ‘heat escaping an attic into the open air’ comment.
With the use of the heat sensor, the issue is not the heat escaping into the air, this device allows the officer to determine in which room of the house contains the source of high heat. Therefore, because it is identifying something residing inside the walls/confines of the house, I believe that it is an intrusion that should require a warrant.
The amount of energy escaping the roof will not show that there is an identifyable smaller location within the house - and that is what the heat sensor will do. Perhaps the person in question likes to keep their entire house sauna like and has poor insulation - that would be one explanation for unusually high energy bills and an unusually high amount of heat escaping the building. however, the heat sensor was able to tell them that there were exactly two specific sources of high heat within the confines of the home, a very real difference IMHO.
So what if you can tell from the location of the escaping heat where in the house it’s coming from? The issue is whether you have a legitimate expectation of privacy in that escaping heat, not what it allows the police officers to reasonably infer.
FTR, I do not believe that, by itself, unusual heat loss in a particularized location is sufficient probable cause for a search warrant to issue. The defendant in the other thread was already under suspicion and had other circumstantial evidence showing drug involvement before a warrant was ever issued.
And spoke, you simply must get that condescension-detecting dog of yours retrained.
Although now that I think about it for a second more, it could well be that you and I are simply focusing on different things, wring. I’m looking at the reasonable expectation of privacy in heat escaping into the open air, and you’re looking at the reasonable expectation of privacy that people have behind the walls of their own home. I’d say both are valid concerns, but that the excess heat is fair game unless it directly reveals the activities of the persons behind the walls. Only then would I say that the “my home is my castle” interest trumps the “then don’t dump your hot air into the atmosphere” interest.
Emitting heat, even unusual amounts of heat, is not at this point, illegal, nor indicative of probable illegal behavior. There are too many other innocent reasons for the heat emissions. It was the specific signature reading that ‘unusually high heat sources’ were located along one wall and one ceiling in the place that led to the warrant being issued. IOW, had there been merely large amounts of heat evenly dispensed throughout the home, the warrant wouldn’t presumably been issued. Therefore, again, since the TIU was able to discern that difference through the walls, that solidified the suspicion.
There seems to be some discrepancy about the order of events in the SC court case. I’ve seen statements that the defendant was merely living in the same apartment building as some one else who was under susupicion, and when the heat signature came up for his place as well, they started investigating him. That, to me, is a problem.
My point was always that if they had suspicion of the guy himself, that suspicion would have allowed for the TIU inspection with a warrant for same. I felt, strongly, that a warrant needed to be issued, since the TIU would be able to discern information about the inside of the house not normally assessible from the outside. For example - If I see a satellite dish on the outside, I can infer that you have a TV inside, however, I shouldn’t be able to tell how many, how large and where your tvs are w/o a warrant.
I can infer from your untility bill and the heat emissions from the roof of the house that you have unusually high heat sources, but, I feel that without a warrant, I shouldn’t be able to find out if there are 1,2, 16 specific sources of that heat and where they are w/in your house.
) - you can see, perhaps, why that might not be compelling, especially since one link I provided gave many cases where dog evidence was accepted by the court (after a full evaluation of all the evidence, pro dog and anti dog)?