On the topic of cross-examining the dog, a joyous read is an Illinois appellate case, People v. Lefler, 689 N.E.2d 1209 (1998).
It’s my favorite for a number of reasons, but the most compelling is the opening sentence. The appeal argues ineffective assistance of counsel at trial, basing the claim on defense counsel’s failure to object as the police officer told the jury not only what the dog did but what it was thinking and how confident it was in the tracking it had done. (Illinois prohibits “bloodhound evidence,” testimony about dogs following a trail.)
The police dog’s name was Cain.
The opening sentence: This case features the mark of Cain and questions whether counsel was able.
I’ve got to ask, if less than 50:50 accuracy is required to establish probable cause, then why don’t they just flip a coin? Better accuracy than the dogs, and cheaper to obtain. Why even bother pretending?
Because such poor results indicate that it is not a science at all. I’ll bet that one would get similar results by randomly searching cars that police have a hunch contains drugs.
Probable cause is fairly hard to define, but it means just that…is the existence of drugs in the car probable based upon specific and articulable facts? That’s going to certainly be less than 50%, but we try to base that on meaningful, observable factors before we invade someone’s privacy.
So, even though a coin flip has a greater percentage chance, it is arbitrary and not related to the question of whether there are drugs in the vehicle. IOW, not based upon specific and articulable facts. And my argument against the drug dogs (which again is not agreed with by most, if any, courts) is that the science is such that we do not know what the dogs are reacting to enough to grant credence to these “hits.”
That was a great read. I hope an appellate court never trashes my trial performance in such a way.
Plus, kuddos to the State’s attorney who had the cajones to argue that case law that disfavored “bloodhound” evidence did not apply here because the dog was a German Shepherd. If my associate wanted to make that argument, I’m not sure he would still be employed.
It is also a good illustration of the second Strickland factor.
You’re portraying the victim as an honest fellow … and how his dignity is trampled by a corrupt system … no matter, the search was legal and not in violation of the 4th Amendment (Wikipedia on “Illinois v. Caballes”) …
Maybe this is in Klan’s-ville, CSA … and the crime is DWB … but I think it’s the 14th Amendment that’s violated when they … well … you know … when they violate the driver’s 14th Amendment rights … if you take what I mean …
The articles quoted don’t really speak to “accuracy,” unless you’re equating accuracy with “actually found drugs.” Since drug residue can leave behind scents even if no visible material remains, the dog may accurately alert on a car trunk that contained contraband yesterday but does not now.
The author, Clyde Keuhn, who has sadly left the bench and returned to private practice, has a brilliant writing style. There’s another of his opinions that absolutely trashes the Batson fiction where the prosecutor gets to offer up a race-neutral explanation for a strike and how courts simply accept whatever is said (“He was dressed shabbily.” “He was overdressed.” “He wouldn’t look me in the eye.” “He stared directly at me.”)
A recent decision I read was where the police pulled over a suspect for some traffic violation, then stalled until the canine unit arrived. The dog found drugs (if I recall the article correctly) but the judge tossed the case. Why? Because you can stop someone for a traffic violation, for the time reasonable to write the citation - but if you detain them longer than that it is an arrest(?) and you need probably cause… and he had no probably cause until after the dog arrived.
If I understand correctly, the dog will react to a residual scent; meaning if drugs or guns had recently been in the car. Did the studies control for this?
You want me to track down testimony from TRAFFIC COURT?!
I have sat in traffic court in LA County a few time and have heard a driver justify legal speeding using the BSL. If you choose to disbelieve me that’s fine. I don’t really care because the fact remains I am right and you are wrong and if you did ANY research whatsoever (5 minute google search) you would realize I am right.
Perhaps if you could fill in some of the details of the specific case you’re referencing … what was the posted speed limit, how fast was the driver going, what was the driver’s evidence that his speed was safe, why wasn’t the roadway reviewed by an engineer … what was the judge’s mood at the time? … you might be surprised what a defendant can get away with in traffic court if the judge likes them …
I hope you appreciate our disbelief here … because what you’re saying is the BSL is an adequate defense for any and all speeding tickets … Google is largely absent of any verification outside of lawyer advertisements …
Not exactly. While the highways in CA have absolute limits (65 in most places, 55 for trailering vehicles, and 70 in less places), on many other roads the limit is the presumed limit. CA Vehicle Code 22350 states:
In People v. Behjat (2000), the court ruled that merely exceeding the posted speed limit is not sufficient to sustain a violation of 22350 (CA Basic speed law). From the opinion where a person was cited for travelling at 59mph in a posted 55 mph road:
With regard to Saint Cad’s mention of the traffic study, this is also supported in CA case law, that to avoid the existence of a speed trap, various requirements around traffic studies exist and without them the prima facie speed limit is more difficult to sustain. See People v. Earnest:
More about speed traps and their discussion in CA at the opinion.
The links to the opinions above are to lawyer’s sites, however if you have access to opinion searches they are available as well. Given that in the first example, the traveling speed of 59 exceeded 55 and the judgment was reversed, I’d say that the basic speed law does say you can exceed the speed limit, if the conditions support it. Here is the wiki on Prima Facie speed limits:
OK here’s one. Driver was headed south on Zelzah Ave. You come over a hill and at the bottom the speed limit changes from 45 to 35 for 2 blocks. None of the road conditions change and it is a well-known speed trap. Driver successfully argued that since no study was done to justify the 10 mph reduction that under the BSL 45 mph was legal there. The judge agreed and dismissed the speeding charge.
Too late to ETA:
BSL is not permission to drive however fast you want. California requires drivers to obey prima facie limits (freeways, school zones, work areas, etc.) The major difference is that for a city street to be a prima facie limit, it must be justified by a traffic study. This works both ways. A person driving 45 in a 45 zone in a fog would be cited for driving at an unsafe speed. Likewise someone doing 80. The legal point of California’s BSL is under those conditions it is up to the officer’s and judge’s judgement if it is unsafe. In many cases I’m sure the judge would agree that the posted speed limit is highly suggestive of safe driving speed but speed limits are not legally binding on the judge*. So in the example I gave, the BSL would give permission to speed (within limits) if for example going through a speed trap.
*Whereas prima facie speed limits are.
Also: Bone I owe you a beer.
If I carry around a dowsing rod and find water 44% of the time, will you accept that the 56% of the time I didn’t find water my explanation of “huh, it must have rained here recently”?
You see my point. No scientific method gets to assume away its misses without proof. Have there been any double blind studies to measure the efficacy of dog sniffs? I believe there have been and they have failed miserably at those as well.
