Dogs, White Lies and Halos

Judges love dogs.  Not cats, and not all dogs. They love drug-sniffing dogs. They love them so much that despite decades of research and the many cases that have conclusively established how dogs are unreliable and manipulated with such ease and facility by their handlers, they still conclude that the rights of humans are secondary to the sniff of a dog.

Now that’s love.

But as cute, cuddly and effective as dogs may be in providing an essentially incontestable justification for the evisceration of constitutional rights, the dogs aren’t to blame. They’re just dogs, doing what dogs do, pleasing their best friends and the hand that feeds them.  They may be unreliable measures of probable cause, but they are reliable tools. Cute, cuddly, reliable tools.

The handlers, however, are neither cute nor cuddly.  They’re cops. Their weapons are dogs. And while dogs may get it wrong, they don’t lie. Cops, however, do.  Sometimes they lie about dogs.

From the Baltimore Sun, the government seized $122,000 at the airport.  Not that it’s anyone’s business, but it was a woman named Samantha Bank’s life savings, to be used to buy real estate.  Whether this was the best way to move money isn’t the point. Samantha can move her lawfully earned money any damn way she pleases, and doesn’t need your permission or approval to justify her choice.

Authorities have not found drugs, but say the narcotics dog, Falco, gave a positive response when it sniffed the money. Among the evidence turned over to Banks’ lawyer was a certificate that was supposed to show the qualifications of Falco and his handler. Neither Banks nor her husband has been charged.

This scenario happens all the time.  According to studies, 90% of currency contains trace amounts of drugs.  What this means, for the dense among you, is that if the $7 in your pocket suffers the misfortune of being the target of a drug dog, chances are overwhelmingly likely that it will test positive for drugs.

But Falco, the dog at the center of this seizure, is just a dog. Don’t blame the dog for what came next.

But in a deposition in July, one K-9 trainer said the certificate was created after the dog’s handler could not find the original, and another trainer said in an affidavit that he produced the certificate on his home computer under instructions from the handler.

Computers are almost as marvelous as dogs. Not as cute and cuddly, but they do whatever you tell them to do too.  But some context is required here, as the trainer who faked the certificate on his PC at the request of the handler likely had good intentions.  You see, why should a good seizure fail because some dumbass handler lost the original certificate?  Believing in Falco, it’s just a piece of paper. If the real one is gone, so make another. Who will know? Who will care?

The good guys, you see, believe in the righteousness of their cause, and so they do what they have to do.  The end justifies the means. After all, the case is about the $122,000, not the handler’s losing the original certificate.

They could have come clean, admitted that the original was lost but that it existed. They could have told the truth and let the chips fall where they may. But they didn’t. That would have been complicated and messy. They might be embarrassing, because it made the handler look like an incompetent goofball. Why dirty up an insignificant detail?

Attorneys for the government then had the job of sloughing the fake through the court.  No doubt the assistant gave the handler and trainer a tongue lashing over their screwing up, but then it became his problem to pass the lie off as no big deal.

When prosecutors turned the certificate in question over to Banks’ attorney, they described it in a letter as a “reproduction.”

A reproduction is a copy of an original.  A recreation is not a reproduction. It’s a phony.  When the trainer was deposed, you see the difference between how a cop answers a question and how a dog trainer answers a question.

In a subsequent deposition, attorney C. Justin Brown asked K-9 trainer Michael McNerney if it was “an authentic certification.”

“No,” McNerney said.

“Is this a fraudulent certification?” Brown asked.

“I believe so,” the trainer said.

All McNerney had to do was lie, and it would have changed everything. Non-cops can’t be trusted. They sometimes tell the truth.  But the government was not to be so easily put off.

Banks’ attorney wrote in court filings that federal prosecutors “obscured the truth” about the document. A spokeswoman for the U.S. attorney’s office said there was no wrongdoing.

And perhaps the spokeswoman believed what she said. Faking certificates for a good cause, with a cute and cuddly dog like Falco, isn’t wrongdoing.  It’s just covering some inconsequential detail needed as part of their narrative to manufacture probable cause to seize the cash.  After all, the reality is that the dog is just a cute and cuddly prop in the show.  And they did find the cash, which is all that really matters.

A strange thing happens in the minds of those charged, authorized by laws that credit their integrity enough to trust them with destruction of other people’s lives, with speaking for the government. They believe that the laws that constrain them, requiring silly stuff like honesty and non-fabricated evidence, are stumbling blocks to get around so they can fulfill their true purpose: prosecuting people for not adhering to the nuance of the law.

In the mind of Falco’s handler, and the attorneys paid by the government to weasel its way around the lost certificate, these are just white lies, not wrongdoing.  Wrongdoing was having $122,000.  Wrongdoing was not creating a fraudulent certification.

Yet, these assistants, the handler, were so fearless, so cavalier, so bold and brazen as to have no concern about proffering a fraudulent certification, or proffering the lie that it was a reproduction, because they are the angels of the system.  Nothing bad can happen to those who wear the halos, because they are on the side of truth and justice in the eyes of the system.  When they lie, they lie like angels.

8 comments on “Dogs, White Lies and Halos

  1. Charles B. Frye

    Two things took this story out of the banal category : the AUSA is Steve Cassella, one of the big guns in forfeiture law for the Feds, and he couldn’t or wouldn’t credit the difference between “copy” and “fake,” and, second, the truth of the fake certificate’s provenance actually came to light. I haven’t accessed PACER to read the deposition excerpt regarding the “re-creation” of the Certificate, but I would guess it took more than a couple of questions.

    The Repondent’s lawyer, Mr. Brown, has done yeoman’s work here, and Falco – depending on the Judge’s ruling – may be looking at early retirement. But, don’t bet your paycheck on it yet. The next shoe to drop could well be a hob-nailed boot as the Judge writes some version of “no harm, no foul” to allow Falco to “testify.”

    Just sayin’.
    Brad Frye

    1. SHG Post author

      It saddens me when someone reduces an important issue to the banality of the example, as you comment does. And please don’t use “hob-nailed boot” here ever again or I will trash your comment.

  2. David Woycechowsky

    While this is sad and wrong, it is good to see the possibility that some precedential 4A law (eg, on dog training, on appropriate evidence of dog training) just might be determined in a civil case rather than a criminal case.

  3. Jake DiMare

    Rather than dump a stupid question about why you are all focused on the technicality when this case seems so obviously and ridiculously inappropriate since the Banks have been charged with no crime, I did some research on asset forfeiture.

    I will now never be leaving my home or interacting with the world in anyway, as to avoid even an accidental interaction with the law. Thank you for making the world a little more frightening this morning.

    1. SHG Post author

      It’s heartwarming to see how, inch by inch, I’m able to bring civic virtue to your life. If it makes you feel any better, it’s all for your protection. No, I swear.

  4. A Random Defender

    I’m actually more shocked that the truth was told about the certificate than the initial cover-up itself.

    Boy do I lead a cynical life.

    1. SHG Post author

      I was too, until I realized that it was the non-cop dog trainer, not the cop handler. He never took testifying class at the Academy.

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