Drug Dogs Don't Even Have To Be Right Half The Time To Be Considered 'Reliable' By The Courts

from the good-news,-K9s:-even-if-you-suck-at-your-job,-you-can-keep-your-job dept

All in all, this motion to suppress evidence worked out for the plaintiff, but it does little to address concerns that drug dogs are basically blank permission slips for inquisitive cops.

The defendant -- Emile Martin -- was in a vehicle driven by another person (simply referred to as "Montgomery" in the opinion). This vehicle crossed the centerline multiple times and was pulled over by Deputy Brandon Williams. The driver could not produce registration or proof of insurance, which led to the issuance of a citation… eventually. But the citation process was unnecessarily prolonged to provide the deputy with a chance to have a K9 unit brought in to sniff the car for drugs.

Based on its findings of fact, the court agrees that the stop was unduly prolonged in order to allow time for the canine and its handler to reach the scene. Prior to the point that the dog alerted, at 3:37 a.m., there was merely a hunch, but neither probable cause nor reasonable articulable suspicion, that criminal conduct was afoot. The lapse of 33 minutes from 3:04 a.m. to 3:37 a.m. for the stop in this case constituted a plainly unjustifiable seizure for that length of time under the Fourth Amendment. As noted above, when Deputy Williams returned to his cruiser with Montgomery’s driver’s license and the Grand Prix title at or shortly after 3:11 a.m., he had everything he needed to begin writing the traffic citations.

However, Williams did not begin writing the citations until 3:21 a.m., and had not completed them when Dul alerted on the vehicle following the open-air sniff at 3:37 a.m. While Deputy Williams spent some time awaiting confirmation from dispatch of the license’s validity and the results of the warrant search, that does not excuse his failure to even begin writing the citations until ten minutes after he could have done so. The stop here was unduly prolonged far beyond the time reasonably required to complete the stop’s mission.
Under the Supreme Court's Rodriguez decision, officers cannot artificially prolong traffic stops in hopes of stumbling across something "better" than a traffic violation. Once the stop's "mission" has reached its conclusion, drivers are free to go, no matter how many more questions -- or dog sniffs -- the officer might wish to pursue.

Still, a drug dog was brought in and it did alert during its "search" of the vehicle. This alert was also challenged, presumably in case the defendant's citation of Rodriguez failed to result in suppression. Data was obtained on the dog's ("Dul") "hit" rate. The data wasn't exactly a confirmation of Dul's superlative skills.
The defendant has not presented any evidence challenging the adequacy of Dul’s training and certification regimen. However, he questions Dul’s reliability based on a review of the dog’s performance record, both in training sessions and in the field. The defendant argues that Dul’s training and field performance records suggest a failure rate of up to 25%. The evidence offered on this phase of the motion is generally undisputed.
Considering law enforcement officers "ask" dogs for permission to effect warrantless searches, one would hope 75% wouldn't be an acceptable success rate. Of course, many arguments were presented by the government as to why being right only three-fourths of the time is nigh unto infallibility. According to law enforcement testimony, there are any number of reasons why a drug sniff might result in a false positive, but none of those are reasons to doubt a dog's assertions.
This is the case because officers are unable to confirm false negatives in the field (as no search is conducted), may fail to find drugs where a dog correctly alerts, and may not realize a dog has alerted based on a residual odor of drugs no longer present.
This would be one thing if law enforcement was alone in finding this acceptable. Unfortunately, the court also finds this lack of accuracy to be of little import when discussing the justification of a search. Dul may only be right 75% of the time, but the bar has been set so low by previous decisions that drug dogs whose intuition is worse than a coin flip are considered to be trustworthy generators of probable cause. (h/t Brad Heath)
Notwithstanding the dispute regarding Dul’s failure rate, the court is satisfied that in conjunction with his training and certification, his performance record amply supports the officers’ reliance on his alert to support probable cause to conduct a search. Dul’s performance record is superior to that of dogs which have been found to be reliable by other courts. See Green, 740 F.3d at 283-284 (affirming district court’s finding that dog with 43% success rate was reliable); United States v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015) (accepting field detection rate of 59.5%); United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir.) (57%).
The only upside here is that the Rodriguez decision will provide a remedy for those whose stops have been artificially extended to bring in drug dogs whose "alert" means nothing more than ¯\_(ツ)_/¯.

In this case, the extension of the stop resulted in suppressed evidence, not the drug dog's questionable reliability. At some point, drug dogs may start being mentioned in the same breath as other law enforcement pseudoscience -- like bite mark evidence or hair comparison. But until then, dogs that can't even manage a 50% hit rate will still be allowed to give officers permission to perform warrantless searches.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, accuracy, drug dogs, searches

Reader Comments

Subscribe: RSS

View by: Thread

  1. icon
    JonC (profile), 11 Feb 2016 @ 6:43am

    I have a sock puppet that had completed a training regimen for drug detection, and has a very nice looking certificate indicating as much. It sounds like my sock puppet should be ready to pursue a career in drug detection.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.