At The Watch, Radley Balko dissects the Seventh Circuit’s opinion in United States v. Bentley, holding that Lex the wonderdog is sufficiently fabulous to give rise to probable cause to search. Like all drug sniffing dogs, Lex went to doggy drug school. He did not do well. But still, he’s a dog.
Lex, the drug dog that searched Bentley’s car, had a 93 percent alert rate. That is, when Lex was called to search a car, he alerted 93 percent of the time. He was basically a probable cause generator. His success rate was much lower, at 59 percent. That is, the police actually found drugs just six of the 10 times Lex told them they would. That means that four of every 10 people Lex alerted to were subjected to a thorough roadside search that produced nothing illegal.
When dogs show up in court, figuratively, not literally, they are drug-sniffing heroes. The reason is fairly obvious. When no drugs are found, no one gets arrested and, after having been detained and subjected to a search, the humans are released into the wild. No one knows. No judge is asked to pay attention.
Consider how much fun judges would have if every driver stopped and searched following a false alert was nonetheless taken to court for arraignment.
Judge: What are the charges?
AUSA: There are no charges, your honor. The defendant is a 72-year-old war veteran, was stopped on I-420 for failure to use his turn signal when changing lanes, held on the side of the road for two hours following a dog hit, his car torn apart and left in pieces on the side of the road, and no contraband of any type was found.
Judge: Thank you. I will enter a plea of not guilty on behalf of the defendant. Is the government seeking detention?
If this happened, judges might take a dimmer view of dog hits, but it doesn’t. For the four of ten motorists who had the pleasure of meeting Lex, however, it does. But they’re never heard from because they never go to court, which might explain why the Supreme Court’s opinion in Harris is so ridiculous:
The Supreme Court, however, recently rejected a proposed rule that would have treated the dog’s field record as a “gold standard.” To the contrary, it said, the record is of “relatively limited import.” Florida v. Harris, 133 S. Ct. 1050, 1056 (2013).
There is no other form of evidence so immune from scrutiny as a dog hit.
Instead, “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.”
If this isn’t absolutely clear, what it means is that if the “program” that trains a dog certifies that the dog is trained, that’s good enough. No, that’s beyond question. If Joe the doggy guy says Poncho the pup is a certified drug dog, then you’re nailed.
The district judge dutifully followed the Harris Court’s instructions: he let the government submit evidence about Lex’s training. That evidence included the dog’s success rates in controlled settings as well as testimony from the dog’s handler and the training institute’s founder. The judge also allowed Bentley to challenge those findings, to cross-examine the handler and the Canine Training Institute’s (CTI) founder, and to put on his own expert witness. The judge then weighed all the evidence, decided to credit the government’s experts over Bentley’s, and decided that Lex’s alert was reliable enough to support probable cause.
“Reliable enough” is reliable enough, when it comes to dogs, even if the “founder” of CTI wasn’t exactly prepared to call Lex his star pupil.
The head of CTI, the company that trained Lex, was embarrassed by Lex’s 93% alert rate in the field: “Well, I don’t like to see that he indicated at that high of a rate.”
But even the trainer’s embarrassment isn’t sufficient to shake a court’s faith in dogs. While the trainer noted that there is a built-in bias since drug dogs are called for only in those situations where police believe there is reason to suspect drugs, the defense noted the alternative explanation for why Lex finds drugs with such frequency.
Bentley rightly points out that Lex is smart. Shively testified that he rewards Lex every time the dog alerts in the field. Presuma-bly the dog knows he will get a “giftee” (a rubber hose stuffed with a sock) every time he alerts. If Lex is motivated by the reward (behavior one would expect from any dog), he should alert every time. This giftee policy seems like a terri-ble way to promote accurate detection on the part of a ser-vice animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause.
Though there are a multitude of reasons why drug sniffs are unreliable, a veritable excuse to search whenever a cop decides that this guy needs searchin’, there doesn’t appear to be any depth of reliability that will shake the courts off their adoration of a pup’s nose. A coin toss? Good enough. Joe the trainer says the dog is good to go? You lose your constitutional right to be left alone. Hot dog.
Radley expressed it as “a search warrant on a leash,” and it’s a brilliant characterization. Putting side the plethora of faux forensics that have been adopted and embraced by courts in their effort to assure that the guilty get convicted, there is no “science” more openly flawed than the efficacy of the dog hit.
And yet, nothing about the massive errors, the failed training and the obvious and well-documented desire of a dog to alert to please his handler and get a “giftee” seems to dissuade the courts from turning a blind eye to this gaping hole in the Fourth Amendment. But at least dogs are cute and lovable, at least if they’re police dogs and not, say, yours.
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While it appears from Balko’s piece that dogs are nothing more than warrants on leashes…. is it possible that if one smokes pot in their car, then gets pulled over a couple of days later, that the dog would detect a positive, while no drugs would be found? Or is this simply a case of dogs giving handlers what they want them to find.
Just trying to give the benefit of the doubt here.
There are about 72 million variations on a theme here, none of which are mutually exclusive. Do you plan to ask about each one, because that’s really gonna run up your bill with me since this isn’t a free legal Q&A website for people with really dopey questions.
No
Damn. Guess I better cancel the Mercedes.
If you are going to go all hypothetical, why not ask if it is the case that the cops, having raided the pot dispensary’s brownies, now smell like drugs, so that the dog, walking next to the cop, hits almost all of the time because no matter where the dog goes, he’s right next to the reeking-of-pot cop.
Do I get bonus points for linking this story with your previous post? Or would those be “brownie points”?
Okay, you win today with brownie points.
Good post – and I enjoyed the “I-420” chuckle.
Glad someone caught it.
59% of 93% is about half, and I’m willing to assume that significantly less than half of all motorists who forgot their blinker at any given time are carrying drugs. Therefore, whatever criteria the cops are using prior to bringing in the dog seem to be at least pointing in the right direction. I can’t really see the harm in requiring police to articulate their reasons for suspicion.
I’ll alert the Supreme Court to your opinion. No doubt they will change the law at their earliest opportunity.
The cops don’t call in the dog every time, but when they have a hunch that someone needs sniffin’. The point isn’t that cops aren’t aware of cues for people carrying drugs, but that those cues aren’t sufficient to establish probable cause. The dog, on the other hand, is. So whenever they have a hunch, they call for the dog, and boom, search at will. That’s the problem.
And lastly, don’t trust the numbers. It’s not like anyone verifies them.
Now that you’ve given me an indirect line to the Supreme Court, I’m ruling that the cops are estopped from disputing their own numbers, and also that hunches are no better than the facts giving rise to them.
I may have overstated my influence with the Supremes. Sorry about that.
SHG,
Given that the Seventh Circuit affirmed, but trashed poor Lex, I now understand the meaning of a “dogfall.”
All the best.
RGK
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One solution would be to treat dog sniffs as a search. If there were no probable cause for a search, then the cops don’t get to have the dog sniff around. If there is probable cause for a search, the cops can use the dog sniff to decide if it is worthwhile to search the car if the dog does not alert.
Calling my proposal is a “solution” assumes that courts view regularly requiring innocent people to be detained while police search cars as a “problem.” Searches of the innocent are not a “problem” on the courts’ radar, because judges’ friends and family don’t get searched. Some judges will say the search situation is “troubling” or presents “nagging” questions without doing anything about that except to “trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use.” Good luck with that.
So you would need probable cause to allow a dog sniff (which, or course, requires no cause now as a dog is merely sniffing scent from outside a car), to get probable cause to allow a search of the car?
If probable cause was require to conduct the dog sniff, then they wouldn’t need a dog sniff as they would already have probable cause. Enjoy those brownies.
60% success? At what level does he get a new job??
Would you put up with a surgeon killing 60% of his patients? A president losing 60% of his wars? Do prosecutors expect to win only 60% of their cases?
That dog needs to be gone, and now the cat is out of the bag the whole canine corp should be investigated for their efficiency! I wouldn’t employ someone who did their job only 60% of the time!
It’s not just that dog. It’s all dogs.
Part SHG of my opinion might like: I don’t think the Harris precedent should have been taken foreclosing the court from using the “giftee evidence” to suppress the dog search.
Part of my opinion SHG probably won’t like: I think the court would have done just that if these exact same facts (except for the presence of drugs) came up in a civil rights action against the popo.
Not sure why you presume my opinion, but I doubt the Supreme Court would have opened the door to a substantive challenging dog hits in any action. They’re not that stupid and realize that once the evidence is subject to question, it could fall in all its permutations, not just the 1983 suit.
It was a trigger warning of sorts.
If accuracy isn’t that important, why bother with dogs at all? It seems police departments could save a lot of money by issuing all officers a drug-detecting dowsing rod…
That’s exactly the point. If it’s a joke, then let’s just do away with the pretense and let cops do whatever the hell they please. The whole dog sniff thing is just goofy, a sham to let cops search cars at will.
Serious legal issues +24 hours =?
As I ponder this from my bomb shelter while petting my god,
(get your mind out of the gutter–I’m in Tel Aviv and it’s a beagle), the god insists she can detect tennis balls anywhere in your car or house and can count to 3 using face licks.
She has a certificate from the Losing Trader School of Lick Counting with a 33% -75% accuracy rate depending whether I’m administering the test, but a 100% hit rate when instructed to lick.
There is a place waiting in hell for her non-believers.