Drug Dog Gets a Failing Grade

k9.jpgWe’ve all been to school, right? Taken plenty of tests? Yes. Typically, a grade of an “A” is 90-100%, a “B” is 80-89%, a “C” is 70-79%, a “D” is 60-69%, and anything below 60% is an “F”. Well, it seems that our judges have spent too much time outside the classroom, and they are giving passing grades to drug dogs that would otherwise receive an “F”.

For those of you who may not know this, our Constitution protects us from government searches and seizures. That constitutional protection goes away when a police officer has reason to believe you may be committing a crime. No, a mere hunch will not do. But when a cop has absolutely no reason which would support a search–but still wants to search you–he will call in a K-9 to do a sniff. Now, some of you deserve a dog sniff, especially if you’re a young white dude, wearing a Bob Marley t-shirt, sporting dreadlocks–no need for a drug dog here, you are possession of marijuana case waiting to happen.

When law enforcement cannot find a legitimate reason to search a person or vehicle, they simply call in the drug dog–and the drug dog conveniently “alerts” to his K-9 master that there are, in fact, drugs located in the area in which he sniffed. In essence, the Constitutional right to be free from unreasonable searches is set aside if some dog sits pretty and ‘alerts’ to the presence of drugs. But there’s a catch: the dog must be “accurate”. So you know what’s coming, right? Yep. Define accurate….

In the drug possession case of Blalock v. State, 98 So.3d 118 (Fla. 1st DCA 2012), the appeals court examined the accuracy of a K-9, and determined whether or not a search was legitimate given the dog’s accuracy (or lack thereof). Here’s how this works. When drugs are found as a result of K-9 search, the criminal defense attorney makes a demand to review all of the K-9’s “field reports”. A field report is made by the K-9’s handler every time a K-9 sniff is requested. The field report is typically one page, and it contains three important pieces of information: (1) Did the K-9 alert for the presence of drugs? (2) Did the alert actually result in the finding of drugs? And the most bogus piece of information, which I label the “excuse for inaccuracy”, involves (3) the officer’s written reason as to why the drug dog alerted, and yet did not find drugs.

Common examples of excuses for K-9 alerts that are false read something like this: “passenger noted that he smoked weed earlier in the day”, “driver admitted to smoking weed in the car several hours ago”, etc. Cops call these false alerts “confirmed residual odors”. Remember George Orwell, 1984? There should be some sort of copyright infringement suit filed for these officer’s theft of George Orwell’s double-speak lingo. But hey, imitation is the highest form of flattery–and our law enforcement officials are paying homage to a classic novel, so give them some credit for that!

Anyway, back to Blalock. Blalock was convicted of drug trafficking, and appealed, based upon the fact that the drug dog was only 47-52% accurate (depending upon whose math you use). Here’s three field report examples, and how the math plays in: Field report #1 says K-9 alerted for drugs, and drugs were found. That is one “point” in favor of the drug dog’s accuracy. Field report #2 says that the K-9 alerted for drugs, but a search revealed no drugs. That’s one strike against the dog’s accuracy. At this point, the K-9 is only 50% accurate. But, let’s bring in the new math. Field report #3 alerts for drugs, a search was conducted, and no drugs were found–but the driver admitted to possessing weed in the car earlier. Ah ha! That’s a “confirmed residual odor”–law enforcement will claim that the dog’s alert in #3 is “accurate”. Any defense attorney worth his/her salt will call BS on this, and indicate that this third search counts against the dog’s accuracy, leaving the dog’s accuracy at only 33%. Of course, the prosecution will count this “confirmed residual odor” as being an accurate alert, and rate the dog at 66% accurate.

In Blalock’s case, the dog alerted for drugs 258 times, with drugs being found 122 times. The remaining 136 false alerts contained 22 occasions in which law enforcement confirmed that drugs “had been either recently used by an occupant of the vehicle or recently present in the vehicle search”. Thus, the State believed the dog’s success rate was above 56%, the defense attorney believed it to be below 47%. Unfortunately, the court felt that “a residual odor that the dog was trained to detect should not count either “for” or “against” the dog when determining its reliability.” What? Adding insult to injury, the court found that 47% accuracy was enough to deem this dog “accurate”, “under the totality of the circumstances”. Of course, this statement “under the totality of the circumstances” is a fancy court term meaning–“we, the court, do not want to find in favor of the defendant, but we have no good reason to rule against the defendant”. When defendant’s hear this phase, the fat lady has sung–you’re done. Basically, judge’s seem to trust K-9 alerts too much, resorting to “the totality of the circumstances” in a case in which the dog received a failing grade for his field performance. Yikes.

One researcher describes the typical reverence of judge’s to K-9 alerts as the “mythic infallibility of the dog’s nose”, noting that “the courts often accept the mythic dog with an almost superstitious faith. The myth so completely has dominated the judicial psyche in those cases that the courts either assume the reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner.” Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 hastings L.J. 15, 22, 28 (1990), quoted from Harris v. State, 71 So.3d 756 (Fla. 2011).

It’s time we start questioning the use of K-9’s in order to search American citizens. As one judge noted, dogs must have better training so as to determine when drugs are actually present (as opposed to simply smelling residual odors), and if a dog cannot distinguish between the two, “it seems we need to abandon dogs as a method of obtaining probable cause”. Wiggs v. State, 2011 WL 3300139 (Fla. 2nd DCA 2011). Amen brother.

[CASE LAW UPDATE] On February 19, 2013, the U.S. Supreme Court overturned Harris v. State, listed above, in a 9-0 decision (Ouch!). Basically, the problem our U.S. Supreme Court had with the Florida Supreme Court is that the Florida Supreme Court case created a sort of “checklist” approach to finding that a dog provided probable cause. The U.S. Supreme Court doesn’t agree with that checklist approach, they prefer a more fluid approach to probable cause. For example, under the Florida Supreme Court Harris decision, you could successfully challenge a rookie K-9 simply because–by virtue of the fact that he’s a brand new dog–he has NO field reports, thus the case would be thrown out?! The U.S. Supreme Court figured that this probable cause standard was too rigid. So, we defense attorneys will still have the opportunity to show that a dog is unreliable–as before–but our motions to exclude the canine as being unreliable will no longer be determined simply by checking [1] training records [2] certification records [3] field performance records [4] handler experience, and so on and so on. Now, the state can skip a few of these records, so long as they provide strong evidence on other fronts. Anyway, just thought you might like the update, it kind of depresses me to write this, but the truth must be told….