In the Dallas-Fort Worth and Denton area as well as throughout Texas we
are seeing an increase in the use of police drug sniffing dogs at all
levels of law enforcement. Dogs can be readily trained to provide useful
and vital services to the law enforcement community. Those in which the
officer claims the animal has been trained to sniff out illegal narcotics
or marijuana pose the greatest threat to our Fourth Amendment protections
against unreasonable searches and seizure by law enforcement.
Positive canine "alerts" are treated as
per se probable cause in most states and in the federal courts including the
US Supreme Court. This gives a police officer the ability to intrude into
the private spaces of another with no judicial oversight or warrant.
The terminology "trained," "reliable," and "certified"
appear throughout judicial opinions handed down over the years relating
to the use of drug sniffing dogs. With no regulation, supervision, or
oversight of this new Drug Dog Industry the opportunities for mischief
and police misconduct are immense.
Who can use drug sniffing dogs?
Nearly every city, state, and federal law enforcement agency in Dallas
Tarrant and Denton County have or have access to drug sniffing dogs. The
Texas Department of Public Safety also has a number of dogs they routinely
use in what they consider drug corridors along Highway US 287 east of
Wichita Falls to North of Amarillo and Highway US 87 north of Interstate 40.
Police are heavily focused on harassing motorist coming from Colorado where
their marijuana laws are rational in hopes they can catch unwary travelers
with contraband. Most mischief occurs with vehicle searches of people
stopped on contrived allegations hard to refute, such as they were traveling
1-2 miles an hour over the speed limit. Police officers cannot bring drug
dogs onto a person's property to search for evidence without first
obtaining a warrant to conduct the search, according to a recent Supreme
Drug Sniffing Dogs & The Fourth Amendment Rights
Most of us know that any dog with proper energy and motivation can be trained
to do just about anything. Any dog owner can tell you they can use subtle
physical or audible clues to induce a dog to bark, rollover, sit, play-dead,
fetch, and perform countless other behaviors. Dogs have even been trained
to sniff out bedbugs in dwellings and to warn their owner of an impending
seizure by the smell of their breath. The contribution of service dogs
to society is immense. The threshold question should be whether our Fourth
Amendment protections should be entrusted to a dog? P
olice dogs are motivated in the same ways as your family pet. They respond
to praise, treats, and toys just like any other dog. A dog's only
desire is to receive his owner's praise, usually accompanied by a
toy or treat. This does not occur for the dog when called upon to give
an alert if it fails to do so. Likewise, there is no way to recall that
reward or praise when it is ultimately learned the dog gave a false alert
and nothing was found after a citizen has been deprived of their Fourth
Amendment Right to Privacy.
While dogs can be trained to react to certain odors with some degree of
accuracy dogs are not infallible. Nor are they able to tell us what is
causing them to react. In reality a canine alert is nothing more than
a subjective interpretation of the dog's demeanor by the dog's
handler through their interaction with the dog. However there are things
to watch for.
How do you know when the dog smells drugs?
The most common question asked in discussions regarding drug dog searches
is how do you know when the dog has "Alerted" to the smell of
contraband? The truth is you really don't. You only know the dog is
doing what it believes it has been trained to do. The training the dogs
receive is to either give a passive or aggressive alert when it detects
certain odors it is trained to detect. The three main drug-groups dogs
are most typically trained to detect are
- Marijuana (Cannabis)
So typically these dogs would be trained to find whole plant cannabis,
cocaine, crack, heroin, amphetamines and methamphetamines. Also a lot
of drugs such as ecstasy, MDMA and MDAA are cut with one of the substances
so one would expect a dog to alert on them as well. The objective way
of determining whether a dog has given a proper alert depends on how the
dog is been trained.
A dog trained to give an aggressive alert can be observed biting, pawing,
scratching, or attempting to penetrate a container to retrieve the substance.
You are not likely to see a dog trained to detect explosives alert in
this manner. The most common method trained for sniffer dogs to give an
alert is a passive alert. They will give a passive alert in one of two
ways: Depending on their training they either sit intently next to the
area they alerting on or they will train their nose right on the area
they are detecting the odor. During this time you will typically also
see them looking toward the handler to be sure they have their attention.
If the so-called "Alert" does not look like one of these three
things what you really have is a dog just being a dog. Rarely are open-air
sniffs and alleged alerts by dogs videotaped in Texas. It comes down to
the word of the officer speaking for the dog.
The legal charade law enforcement is playing with our courts and consequently
the citizen's deprivation to their lawful right to privacy becomes
apparent when you begin to ask questions about the reliability of these
police dog alerts. False alerts routinely occur and this fact is concealed
by law enforcement. A false alert is an instance where the animal has
alerted to the smell of contraband yet none was found. For the most part
when this occurs no record is made of the occurrence. When the handler
is pressed for an explanation they will often say the dog alerted on a
"residual odor." This explanation is ridiculous in a world were
drug users and non-drug users alike share:
- luggage racks and compartments
- vending machines
In almost all instances of a false alert no evidence was ever found there
was ever a compound present that would've left a residual odor. A
dog that allegedly alerts on a "residual odor" should be deemed
an unacceptable dog to be used to deprive the citizens of their lawful
right to privacy or property. Also remember a "residual odor"
allegation comes in right handy for police engaged in roadside shakedowns
of citizens for their cash under the alleged asset forfeiture statutes.
They use the allegation the dog smelled a residual odor on money as their
probable cause to seize it.
When the police are honest in reporting the actual results of alerts it
is clear that many, if not the majority alerts, are false alerts. A 2007-2009
study by the Illinois Department of Transportation related to police K-9
searches revealed an accuracy rate of searches were drugs or paraphernalia
were indeed found to be as low as 32% with some agencies participating
in the survey. In a recent Federal lawsuit filed by officers in Nevada,
their complaint alleges that the drug-sniffing dogs used by troopers in
a highway drug interdiction program were intentionally being trained to
operate as so-called trick ponies, or dogs that provide officers false
alerts for the presence of drugs. The dogs were being trained to alert
their handlers by cues, instead of by picking up a drug's scent by
sniffing, the complaint said. When a dog gives a false alert, this resulted
in illegal searches and seizures, including money and property, the complaint said.
False alerts by their drug sniffing dogs aren't properly documented
or investigated by Texas Police. The dog would be rendered worthless if
found to be unreliable by the courts. The entire police canine industry
is also rife with other problems. To open a "Canine Training Academy"
where officers and their dogs are trained you need only hang out a sign
and print certificates. There is no independent review or accreditation
of these programs. There are rarely audits to see how a canine and their
handler are doing once they hit the field. Most agencies consider once
an officer and their dog are trained they're forever trained. In short,
our courts are allowing the government to end run the Constitution and
replace the requirement of judicial oversight of searches of citizens
through the use of Mutt and Jeff. Another common problem is citizens are
routinely being detained for periods that are longer than is lawfully
permissible while awaiting the arrival of a dog. Without further reasonable
suspicion or probable cause and officer cannot detain a citizen for periods
longer than would be reasonably expected for them to run their customary
checks and take remedial action based upon their original reason for the
stop, such as run their customary check for warrants and driver's
license status and issue a warning or citation and send the motorists
on their way. Delays of motorist in stops for routine traffic violations
lasting longer than 15-20 minutes should be immediately suspect. And denying
an officer permission to search is never probable cause to do it anyway.
What To Do If You Are Defending A Drug Case
Criminal defense attorneys in the Dallas and Fort Worth area need to be
particularly diligent in defending their clients anytime a drug-sniffing
dog has been used as probable cause for a search, seizure, or arrest.
Fertile evidence for an Evidence Suppression Hearing can be found if you
will take the time to dig. First, you need to subpoena all available videos
that might have captured the search to see if an actual alert can be observed.
You need to subpoena all the purchase and training records and logs concerning
the dog. You need to subpoena the training and disciplinary records of
the handler. You need to subpoena the veterinary records of the dog. You
should also subpoena records from computer-aided dispatch and mobile data
terminals to determine the time your client was actually stopped and the
time the dog arrived. And lastly, we need to take the time to educate
our courts that a canine alert alone should never equal probable cause.