Cute Doggies and Bad Law (Update)

There’s little purpose in  repeating my issues with the caselaw that has elevated the beloved dog hit to unquestionable probable cause.  It’s untrue. It’s unreliable, It’s the law. It sucks.  Have you ever tried cross-examining a dog? They just stare at you with those adorable eyes, occasionally wag their tail, and let out a nonresponsive woof. A collective “awwww” fills the courtroom.

Yet the Nevada State Troopers don’t think it’s particularly funny, a bunch having  sued their superiors in federal court for racketeering by their converting the K9 program into a huge scam.  A report  8NewsNow says:

The complaint alleges that the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug’s scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

It’s a lengthy complaint, and this barely scratches the surface.  It details the sausage making that so many of us who don’t wear robes in court believe to be the case, but usually can’t prove because the carefully crafted veneer of law enforcement propriety is all they show the judge.  And the judge believes.

The suit provides a view of the internal workings of the Nevada State Police, the backbiting, lying, scheming, anger and hatred that exists below the respectable veneer.  Some will say, at worst this reflects problems in Nevada, but certainly nowhere else.  The problem is that we all rely on a fiction, that the operations of law enforcement, at their core, are honest and legitimate.  What this reveals is that our presumption of regularity, our blind faith that the police, having every opportunity to lie and cheat, wouldn’t do so.

But they do in Nevada.  And if a bunch of state troopers hadn’t had enough of it for their own sakes, nobody would know. And nobody would believe.  It’s only because the troopers themselves says so that our worst nightmares are proven true.

How tight can judges close their eyes, their ears, their minds, and rely on the fiction of the new professionalism, that the police have the opportunity to be as corrupt as they want to be and nobody on the outside would ever know for sure or be capable of proving it.  Still, because we chose to believe they would never do such things, that serves as the foundation of the rule of law.

And doggies wouldn’t lie. Except they don’t lie.  They just do what they’re trained to do, to the extent they’re capable of doing it.  And when we learn that the doggies are trained by outsourced vendors with no background in law enforcement and no vetting for competency or integrity, the doggies aren’t to blame.

Yet every time a doggie comes into court (they don’t really come, you know, but their handler does, and he relates the story of how the cute doggie “responded”), the judge is constrained to speak the mantra of probable cause. What else can the judge do?  Doggies can’t be wrong, and the law says that a dog hit equals probable cause. There’s no discretion involved.

The suit in Nevada reveals that it’s a house of cards, ripe for manipulation and deception.  So which judge will be the first to rule that cute doggies no longer control our rights under the Fourth Amendment?

H/T Ed at  Blawg Review and Radley “Mr. New Hampshire” Balko

Update (via Reddit’s FritzMuffKnuckle):  As if on cue, a decision out of reported today:

The nose of a drug-sniffing police dog is not so sharp, but it’s good enough to support cocaine charges against Herbert Green.

That was the opinion of federal Judge Glen Conrad, who denied a motion this week to suppress the drugs found in Green’s sport utility vehicle with the help of a police dog named Bono.

Green’s lawyer had argued that Bono’s track record — drugs were found just 22 times out of 85 “alerts” by the dog — was so poor that police lacked probable cause to search Green’s SUV.

Was the nice doggie named Bono sent down to the minors?  Hardly.

Bono “may not be a model of canine accuracy,” Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.

However, the judge ruled that other factors, including the dog’s training and flawless performance during re-certification sessions, were enough to overcome a challenge raised by Green’s attorney, public defender Randy Cargill.

So what if cute Bono alerted a bit too frequently. That can happen, you know.

In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.

Taking those cases into account, Conrad found that Bono’s accuracy rate was at least 50 percent.

Just a bit of finagling and the judge got cute Bono’s skills up to the level of a coin toss. Justice was done.

4 comments on “Cute Doggies and Bad Law (Update)

  1. FritzMuffknuckle

    It won’t be federal Judge Glen Conrad that stops the doggies control of our rights.

    This week he allowed evidence found with probable cause based on a drug dog with a record of being correct just 22 out of 85 times.

  2. Jeff Gamso

    At least Judge Conrad was willing to allow as how the dog’s track record might be relevant. Not so our local appellate court in Ohio which after looking at the various state and federal court decisions on the matter said (this was back in 2004, but it hasn’t reconsidered, and it’s the leading Ohio case on the subject),

    “As a result, we conclude that proof of the fact that a drug dog is properly trained and certified is the only evidence material to a determination that a particular dog is reliable. Proof that a drug dog is properly trained and certified may be established by means of testimony or through documentary proof.

    “In applying this standard to the case under consideration, we find that the trial court erred in ordering the state to produce Ringo’s real world reports for examination by appellees.”

  3. SHG

    If they allowed “extrinsic” evidence, it would hurt the doggies feelings. Do you care nothing of doggie self-esteem?

  4. Nigel Declan

    So, based on this, what is to stop a court from saying that Officer X’s “hunches” as to the presence of subject matter are sufficiently precise (with or without a bit of judicial statistical massaging) that he now becomes probable grounds for swearing out warrants? Or perhaps some sort of contraband divining rod or crystals which, when used by a “properly trained” officer, produce a >25% accuracy rate? While the “science” might be junk in the hypotheticals, the line of analysis in the dog case basically rejects any scientific basis that might be expected to distinguish reliable drug dog sniffing from psychic guessing or hunch-based searches.

    I am truly stunned.

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