Thursday, May 28, 2020

Bad (drug) dog


A district court in Utah recently issued a must-read suppression order on the subject of dog sniffs and drug-dog training and certification. In this particular case, officers had been conducting surveillance of the defendant. One officer conducted a traffic stop with a canine unit purposefully nearby to come do a sniff. The dog, Tank, did not sit or lay down, which was his trained response to smelling drugs. Yet the handler officer "perceived" that Tank had alerted, based on his experience with the dog. He searched the car and found a small amount of marijuana and a gun. 

The court recognized that a dog alert can provide probable cause to search, but held that an alert should be distinct, verifiable, and objective. "Behavior by the dog that is so subjective that only the handler may be able to identify it risks allowing a search in violation of the Fourth Amendment that is based on nothing more certain that the officer’s hunch that drugs may be present." The court also expressed concern that the “totality of the circumstances suggests that [the handler] was already of the belief drugs were in the car and that this belief influenced him, perhaps even inadvertently, to interpret Tank’s uncertain 'alerts' as supporting a conclusion of probable cause."

The court also discussed its doubts about Tank's training and certification. An expert testified about the importance of a "blind training" for a drug dog, where the handler does not know where drugs are hidden during training. Blind training prevents "handler bias" or "cuing," where the handler consciously or unconsciously directs the dog to the drugs. The Utah training program does not use blind training at all. The court found that this "failure to implement double-blind training raises questions as to the independence of its K9s and casts doubt as to whether the K9s are alerting or indicating because they actually detect the odor of narcotics or because they have learned that displaying such action is the best way to please their masters." 

The takeaway: dog alerts are not unassailable. Make sure to request and review the training and certification of the dog if you have a search based on a drug-dog alert.

Note: We are sure that Utah's dogs are very good dogs. 

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