At Volokh Conspiracy, Orin Kerr points to two new decisions on dog hits that reflect a monumental clash. The first, from the Tenth Circuit Court of Appeals, is United States v. Ludwig, and it’s a stunner.
[I]t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability…Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.
So the cops set up a “credentialing organization” to credential their own dogs and, shockingly, certify that they’re reliable. Imagine that. Forget Daubert. Forget even Frye, since the only folks whose general acceptance is needed are the same folks relying on the dog hits. And what constitutes reliability?
[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983)…
It’s not rocket science. In fact, it’s not science at all. Science is something that can be repeated, proven. Remember Radley Balko’s article at Reason, debunking drug dogs? It seems that whenever studies are done outside of law enforcement, the magic goes away. But even with the magic, 58% of it according to the data kept by police, that’s plenty for the 10th Circuit to invoke good old Texas v. Brown, probable cause doesn’t mean probable or cause, but anything that cops can articulate to arrest someone.
Yet hope isn’t lost, coming from Florida of all places. In Harris v. State, the Florida Supreme Court demonstrates a working understanding of scientific principles.
[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.
Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle.
While the Florida Supreme Court still begins with the notion that magic sniffing dogs, with the right papers, can be reliable, at least the court recognizes one of the critical failings noted by the report of the National Academy of Sciences, that law enforcement “creates” a forensic science, validates it, and then creates its own organization to certify it. In other words, one lies and the other swears to it.
Of course, even the Florida decision fails to address two other pervasive failings in what has become generally accepted forensic science, that it’s never been scientifically validated using real scientists and real scientific method, and that it’s performed under uncontrolled conditions. We know this because whenever its tested under controlled conditions, it comes out the other way.
The problem we’re saddled with is that there is a wealth of junk science already deeply embedded in law enforcement and the legal system that could never pass muster under Daubert if it was given any meaningful scrutiny. As it’s already been accepted despite its lack of scientific basis, courts just keep pushing it along as precedent, even if it holds no scientific water.
The 10th Circuit decision provides as clear a picture of abdication of responsibility for allowing junk to be perpetuated, but goes a step further. Rather than acknowledge its gatekeeper role when it comes to junk science in the courtroom, the Circuit has handed its responsibility over to the California Narcotic Canine Association, then wiped their hands and walked away. Mind you, rather than require the prosecution to prove that the credentialling agency wasn’t a law enforcement controlled sham, they shift the burden to the defence to prove that it wasn’t “smoke and mirrors,” because the defense certainly has the inside dirt on how the run the show.
While the Florida decision offers a small opening in the junk science door, at least the court shows the presence of mind not to rubber stamp junk science because it’s been going on for decades. It may not be much for law enforcement to fabricate some self-serving statewide standards and pretend that makes their magic dogs reliable, but it’s a start.
Someday, courts may be willing to take a hard, fresh look at all the wonderful forensic science that has been used to stop people, convict people and lock them away, despite the reality found by the National Academy of Sciences that law enforcement has just been making this stuff up all along. But then, if they do, it will be pretty darned embarrassing for judges to have to face the fact that they’ve been played for a generation by charlatans with make-believe science.
Which brings us to the only real question that matters: Will judges be willing to look historically foolish rather than enable the conviction of innocent people based on junk science?