Wednesday, October 19, 2016

Canine Scent Identifications and Lineups in U.S. Courts: Updated Version

Canine scent identifications in the U.S. began with tracking cases where the perpetrator was encountered along the trail and the dogs alerted to him. Sometimes the alert followed a failed effort to track where the suspect was already in custody or in a police station. Identification in a police station is sometimes called a station identification. Formal scent lineups do not appear in U.S. legal decisions until the 1970s, unlike Germany and the Netherlands, where cases were described from the early 1900s. Most, perhaps all, of the scent lineups described below were conducted without sufficiently careful procedures to assure the level of certainty as to the correctness of the canine identification that has been described in recent research literature, primarily from European laboratories, and that should, in the author's opinion, be required for admissibility in a criminal prosecution.

As I argue in Chapter 20 of Canine Olfaction Science and Law (released 2016), American case law on scent lineups has not effectively dealt with the black box of canine scent identification, having for too long been willing to accept a series of foundational elements as a sufficient guarantee of reliability.  Scent lineup procedures, and bogus station identifications, which do not provide results with a forensically satisfactory degree of specificity or diagnostic ratio, should not be admitted merely because a handler claims perfection or near perfection in poorly controlled training scenarios and prior conviction experience.  Courts have been too ready to admit such testimony because of a logic that is grounded in hunting practices, the success of slave hunters in the pre-Civil War American South, and the legends of successful bloodhounds following trails of perpetrators over 100 years ago.

Some lineups involving cadaver dogs are included in this list because of the identification aspects of the cases.

1917

Cranford v. State, 130 Ark. 101, 197 S.W. 19 (Sup. Ct. 1917). After tracking to defendant’s house, where shotgun and cartridges were found, bloodhound went to defendant in office where he was under arrest; scented to trail; number of other persons with defendant not specified in station identification. Court held foundation proper: “dogs were of a pure strain of blood, registered, and the oldest one was a graduate of a training school for bloodhounds. Both dogs were experienced in trailing offenders of the law. The testimony showed that they were accurate, certain, and reliable.”

1923

State v. Grba, 196 Iowa 241, 194 N.W. 250 (Sup. Ct. 1923). Two English bloodhounds alerted to defendant in room in jailhouse with 5 or 6 other men (others may have come into room during process); not clear if dogs were put on scent of suspect; lineup apparently conducted by having foils and suspect walk by the dog; not clear if foils were of same age, gender, etc. as defendant. Not admitted because Iowa Supreme Court sided with minority of states not admitting bloodhound testimony, quoting extensively from cases from Nebraska, Illinois, Indiana, and Kentucky (the latter a dissent in Pedigo v. Commonwealth, 103 Ky. 41, 33 S.W. 143 (1898)); how dogs trail is not known and is based on theories; trail was 12 to 13 hours stale; “The evidence is in the nature of expert testimony with no opportunity whatever to cross-examine the expert or find out from any source any reason for the conduct of the dogs, or why they should choose one direction, or one trail, rather than another, as was done in the instant case.” The court also noted that even where bloodhound evidence is admitted, it is of the weakest character. “It is conceded by all courts, and must be from the facts of the case, that the bloodhound is not infallible, that he does make mistakes, and that he does not invariably follow a trail without deflection therefrom and with absolute certainty. In other words, the bloodhound may be right in what he does, and he may be wholly wrong. How is it possible to know in any particular case whether he is right or wrong?”

1936

Hinton v. State, 175 Miss. 308, 166 So. 762 (1936). Dogs began trailing outside of courthouse and went to cell where suspect was being held with another prisoner, baying when they jumped beside him on the bunk; a station identification but only one other person in the cell. Admitted under tracking foundation, with corroborative evidence.

1971

State v. Iverson, 187 N.W.2d 1 (N.D. Sup. Ct. 1971). Bloodhound scented to pillowcase from scene of double murder; dog followed trail through police station and alerted to defendant 24 to 48 hours after murder; no specific foils; station identification rather than lineup procedure. Brief discussion of foundational elements of breeding, training, and requirement of being put on trail at the place where circumstances tended to show guilty party to have been.

1982

Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (Va. Sup. Ct. 1982) (3 separate lineups). German shepherd scented to defendant’s underwear picked out towel found in woods near trail dog followed from among five similar-looking towels; dog scented to towel found in woods and allowed to choose between numerous vehicles in lot, selected defendant’s vehicle; after this, dog began at car, went into police station and alerted to door of office where defendant was seated; body of victim was never found; first lineup was 13 days after victim’s disappearance; second was 14 days; dog was used repeatedly for different procedures, including trailing from the location where the victim’s car was found to the defendant’s house. Virginia Supreme Court described trial court as having required substantial foundation evidence, including basic elements of breeding, training, scenting at location where guilty party had been, and timeliness (here the trailing was at least 11 days old and there had been considerable rainfall), but all based on testimony of handler; court accepted handler’s testimony that dog had followed trails as old as 21 days.

U.S. v. Gates, 680 F.2d 1117 (6th Cir. 1982). Dog scented to sandal left by perpetrator fleeing bank robbery; sandal had been kept in sealed package; alerted to defendant in lineup; number of foils not specified; concurrence noted that handler’s description of usual lineup with objects did not comport with lineup conducted with individuals. Tracking criteria listed; “Evidence has been presented in this case that law enforcement authorities conducted portions of their investigation with the aid of a trained dog. Because it is of course not possible for the dog to communicate its findings to us directly, we must rely on the interpretation of the dog's actions provided by the testimony of its trainer, witness John Preston. Because of the nature of this evidence, you are instructed to receive it with caution and not to give it undue weight. It is to be considered as a part of, and along with, all the other evidence in the case in your deliberations.” Concurrence argued proper foundation not provided.

Roberts v. State, 53 Md.App. 257, 452 A.2d 1271 (Ct. of Special Appeals 1982), aff’d, 298 Md. 261, 469 A.2d 442 (Ct. of Appeals 1983). Purebred bloodhound scented on knit cap intruder had picked up on premises and used to hide top of his head, put in plastic evidence bag; dog followed trail short distance; then dog was rescented on lawn outside victim’s home three hours from initial scenting (dog had been kept in K-9 vehicle and did not see lineup prepared); defendant, a 5'8" black male, stood in line of four police officers about five feet apart (one officer was in civilian clothes); dog alerted to defendant; positions of foils were altered but dog still chose defendant (sat at his feet, the dog’s alert); handler knew lineup positions so trials not blind; three-hour gap between initial scenting of dog and lineup of persons but dog was re-scented; dog was familiar with most persons in lineup except defendant. Appellate court called the procedure novel; court cited tracking cases and noted rigorous cross-examination of the witnesses concerning the dog; court accepted three-hour gap between scenting and lineup as acceptable because dog had run a trail eight hours old (though the dog was probably scented at the beginning of that trail).

1983

U.S. v. McNiece, 558 F.Supp. 612, 12 Fed.R.Evid.Serv. 1870 (ED NY 1983). German shepherd scented to sock worn by defendant; dog taken to room with tools on the floor including bolt cutters used to break into post office, dog alerted to bolt cutters; number of other tools not specified; court stated that lineup 21 months after crime went to weight of evidence, not admissibility. Defense argued that it had not been established that individuals have unique scents or odors, analogizing situation to voice spectrographic analysis of U.S. v. Williams, 583 F.2d 1194 (2nd Cir. 1978); experts described dogs’ tracking abilities and some research was cited; court cited handler (Preston) that dog never has been proven wrong; “For the following reasons, however, we do not believe that the inability to determine conclusively that individuals have unique “odors” (as recognized by humans) requires the exclusion of this evidence.” Court noted dog is not a scientific instrument, so that “courts need not apply as strict a standard when considering the admissibility of such evidence as they are required to apply when considering the admissibility of the seemingly flawless evidence produced by a mechanical instrument…. In addition, the jury will be instructed that it may not convict defendant on the basis of the dog's identification alone; rather, it may use such evidence to convict defendant only if it first finds that all the other evidence in the case establishes defendant's guilt by at least clear and convincing evidence.” Court cited general tracking requirements. Videotape of scent lineup of tools admitted at trial under specified conditions (tracking foundation) and directions to jury (must be corroborative). 

Dedge v. State, 442 So.2d 429 (Fla. Dist. Ct. of Appeal 1983). German shepherd scented to paper bag holding paper towels used by defendant; lineup of sheets of defendant and other prisoners; dog also alerted at victim’s house to areas defendant may have touched; time frame not specified; dog did not alert on first pass of line of sheets. Error to exclude defense’s expert on human scent discrimination since ability of dog to identify human scent on objects at crime scene more than three months after crime was key issue; admitting hearsay regarding another expert’s statements on dog’s reliability was error; errors were not harmless and appellate court remanded for new trial; exonerating DNA evidence resulted in the defendant’s release in 2004.

1984

State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (Az. Sup. Ct. 1984). German shepherd scented on victim’s clothing and alerted to car among four other cars; dog was used in all three scent matching situations and was scented both on victim’s and defendant’s items; no controls were used to determine attractiveness of defendant’s scent.

Roscoe (id.). German shepherd scented on defendant’s clothing; dog taken to room where five articles of clothing are laid out including clothing taken from victim’s body; alerted to victim’s clothing.

Roscoe (id.). Dog probably scented on defendant’s clothing and alerted to victim’s bicycle in lineup of five bicycles. Court stated that Frye [Frye v. U.S., 54 App.D.C. 46, 293 F. 1013 (1923)] rule (regarding admission of scientific procedures) is not applicable to all expert evidence, and not applicable to dog tracking or scenting; evidence “was not bottomed on any scientific theory. In fact, it appears that no one knows exactly how or why some dogs are able to track or scent, or the degree to which they are able to do so.” Case cited Kalmus research on dogs tracking identical twins. Dog evidence “was offered as Preston's opinion of the meaning of his dog's reaction; that opinion was based upon Preston's training of and experience with the dog. The weight of the evidence did not hinge upon the validity or accuracy of some scientific principle; rather, it hinged on Preston's credibility, the accuracy of his past observation of the dog's performance, the extent of the training he had given the dog, and the reliability of his interpretations of the dog's reactions. It was not the theories of Newton, Einstein or Freud which gave the evidence weight; if so, the Frye test should have been applied. It was, rather, Preston's knowledge, experience and integrity which would give the evidence weight and it was Preston who was available for cross-examination. His credentials, his experience, his motives and his integrity were effectively probed and tested. Determination of these issues does not depend on science; it is the exclusive province of the jury.” Court noted that states that have accepted dog tracking evidence have not thought it “necessary to adopt the Frye rule as a preliminary standard for determining foundation.” Those states that have rejected dog tracking have not done so by Frye logic but because of “the fear that the jurors will be misled by folklore superstitions that attach to bloodhounds and their ability to track.” Thus the court looked to the basic tracking foundational elements to determine admissibility. “Although it would have been better if the trial court had required some independent verification of the dog’s abilities, we cannot hold that it erred in admitting Preston’s [the handler’s] testimony.”

1985

In New Hampshire v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978), a dog’s tracking led into a house and then “without interruption to the defendant,” which New Hampshire v. Maya, 126 N.H. 590, 493 A.2d 1139 (1985), described as “evidence that a dog had tracked a defendant in such a way as to indicate that he was the perpetrator of a crime.”  In Maya, the New Hampshire Supreme Court said that lack of evidence about a dog’s breed, and lack of evidence that the dog was asked to perform within his “period of efficiency,” foundational elements for the admission of tracking evidence, could have been partially cured “if the police had told the magistrate what standards a dog must meet in order to be ‘certified’ as a tracking dog.”  Nevertheless: “The deficiencies in the related foundation evidence certainly deflated the value of the tracking evidence, but it did not reduce its value to nothing.”  

1986

Ramos v. State, 496 So.2d 121 (Fla. Sup. Ct. 1986). Dog scented to cigarette pack defendant handled during interrogation; lineup occurred in interrogation room of police station; time not specified but soon after crime; lineup consisted of victim’s shirt with blood on it and four other shirts from the husband of a secretary of the police chief; dog alerted to victim’s shirt; one foil supplied four items for lineup.

Ramos (2d lineup). Dog scented as above but had to choose between four knives, one that had stabbed the victim and 3 from local diner; dog did not have foils with blood on them; court noted that the dog handler and investigating officers observed the conduct of the lineup, presumably indicating it was not blind. Admitted by trial court but described as unfair and lacking in proper foundation by Florida Supreme Court. “This decision is not intended to change that law. The use of a dog in a scent-discrimination lineup is not the same and is an issue of first impression in this Court. We believe it is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.” Thus, the court recognized that reliability had to be established in a way separate from the foundation elements of tracking. “The only evidence presented regarding the reliability of the type of scent-discrimination lineup used in this case was the testimony of the dog handler and the police officer. We hold that this testimony, by itself, under the facts of this case, is insufficient to establish the reliability of dog scent-discrimination lineups as a method of proof.” Court reversed but did not reject scent lineups: “We do not rule out the use of dog scent-discrimination lineup evidence as a method of proof, but find that before it may be admitted it must be established that (1) this type of lineup evidence is reliable; (2) the specific lineup is conducted in a fair, objective manner; and (3) the dog used has been properly trained and found by experience to be reliable in this type of identification. In the instant case, the reliability of this type of lineup was not established, nor was the test conducted in a fair manner. We conclude, therefore, that the admission of this particular lineup evidence was prejudicial error. Accordingly, we reverse appellant's conviction and remand for a new trial.”

1987

Commonwealth v. Michaux, 360 Pa.Super 452, 520 A.2d 1177 (Pa.Supr.Ct. 1987). Bloodhound scented to front seat of abandoned Chrysler in which burglars had fled, several hours from crime; unknown number of foils (“several people present”); defense argued insufficient corroborating evidence but court described other evidence, such as place where defendant was found; court rejected argument that handler’s testimony regarding dog’s actions was hearsay; defense objected that handler’s testimony should not have been admitted as expert testimony because it had not been shown that witness had conducted any experiments concerning the ability of dogs to distinguish individuals by scent; though this objection was raised, the court did not rule but the defense counsel dismissed the witness and the appellate court did not assign error since there was no ruling. Tracking factors discussed; necessity of corroborating evidence specified; “While a dog's trainer may be available for cross examination, he obviously will be unable to answer many questions bearing on the reliability of the dog's conclusions.”

1999

People v. Brooks, 975 P.2d 1105, 81 A.L.R.5th 779 (Colo. Sup. Ct., 1999). Purebred bloodhound brought to garage where suspect was standing handcuffed, alerted to suspect; foils were police officers at place of arrest. Court concluded that Daubert [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]and Frye did not apply: “We conclude that testimony on this subject is not susceptible to review under standards which were not designed for experience-based specialized knowledge. Accordingly, we decline to apply the Frye test or the Daubert factors. Instead, we hold that scent tracking evidence must be governed by a conventional CRE [Colorado Rules of Evidence] 702 and CRE 403 analysis, and we adopt the majority rule for assessing the reliability of such evidence.” The court found the foundation requirements for tracking were applicable. “In our view, the foregoing discussion demonstrates that the “general acceptance” standard cannot apply unless the expertise being considered is based on, or derivative of, hard science.” Further: “In our view, the differences between a mechanical apparatus or standardized scientific procedure on the one hand, and a living, breathing, animate creature on the other, are weighty enough to take scent tracking outside the realm of processes ordinarily associated with the Frye standard. Although we acknowledge that Officer Nichols offered his thoughts on how bloodhounds might pick up scent, this was not the substantive thrust of his testimony. Instead, Nichols focused on Yogi's training, reliability, track record, and performance in the case at hand-all matters based on specialized knowledge he obtained as Yogi's handler. Contrary to Brooks' assertions, the reliability of scent tracking evidence is not dependent on the scientific explanation of canine olfaction.” The court also found Daubert inapplicable. “We are unwilling to adopt Daubert here and apply it for the first time to experience-based specialized knowledge which is not dependent on scientific explanation.” The court held that the tracking foundation requirements applied, and that corroboration was also required. The trial court had said the handler could testify as lay witness, not expert witness; the Colorado Supreme Court held testimony was expert since a proper foundation had been laid.

2002

Winston v. Texas, 78 S.W.3d 522 (Court of Appeals, 14th Dist., 2002). Dogs were scented to a microwave from burglarized dwelling, which had been moved by the perpetrator(s), which was wiped with a scent pad; defendant provided a scent sample by wiping his hands on a scent pad; five pads were placed 10 paces apart, perpendicular to the wind; two bloodhounds each alerted to pad handled by defendant. Court analyzed state law on admission of scientific evidence, citing Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App. 1998) providing test where field is based on experience or training as opposed to scientific methods, which considers “the appropriate questions for assessing reliability are (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of the field, and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field.” For legitimacy of the expertise, the court cited the general acceptance of tracking evidence. The third element also went to the qualifications of the trainer and of the dog, and the objectivity of the lineup. The qualifications of the dog were satisfied if the dog met the general foundation requirements. The handler’s testimony was enough to establish the objectivity of the lineup.

People v. Sandoval, 2002 WL 519848 (Cal. App.2d Dist. 2002). Dog scented to pads made by STU 100 from seats in van; dog trailed to separate cells of four suspects, including defendant. Admissible but if error to admit, harmless; Kelly [People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (Sup.Ct. 1976).]/Frye analysis did not apply to “mere expert testimony as distinguished from scientific evidence”; “The vast authority on the subject reflects more than 100 years of cases acknowledging the reliability of dog tracking in differing circumstances; it is not new. As to whether dog-tracking evidence is scientific, it does not carry, in either name or description, an aura of infallibility. A dog following a scent trail is not a mysterious process which a jury is asked to accept on its faith in science, but rather an easily-understood act to which jurors can apply their own lay understanding of dogs. Indeed, dog-tracking evidence is the subject of a standard jury instruction…. It is not subject to Kelly/Frye.” As to the STU: “The scent transfer unit is simply a device used to implement the obvious principle that scent travels in air. There is no novel scientific principle behind the use of suction to move air and the scent contained in it; it is the same principle at work in air filters in every home. Kelly/Frye does not require a foundational hearing on this principle in order to support the admission of testimony involving the use of the scent transfer unit.” In any case, admitting either the dog tracking evidence or the STU evidence was harmless, even if it was error.

2003

Drake v. Texas, 123 SW3d 596 (2003). Not described nor admitted in evidence; defendant was told of results of lineup as means of pressuring a confession, which was obtained

People v. Hackett, 2003 WL 463976 (Cal.App.2d Dist. 2003). Dog scented to glove on floor of bathroom and marijuana cigarette tossed on front porch; dog chose scent from defendant’s jail clothing from “other people’s body odors;” time frame not specified though apparently at least ten days after crime. Defense objected that scent lineup was not the same as tracking; court found the issue academically interesting but not in need of resolution since any error in admitting dog scent evidence would have been harmless because dog scent evidence was not crucial to prosecution’s case

People v. Mitchell, 110 Cal.App.4th 772, 2 Cal.Rptr.3d 49 (2003) (9 scent lineups in total). Scent prepared from shell casings from murder site; casings had been kept in envelope; lineup of pads from shirts worn by suspect, other Crips, and police officers; pads prepared more than one month after murder; dog did not alert to shirts prepared from other Crips; some items may not have been properly stored. Trial court’s ruling that a Kelly/Frye analysis was unnecessary was held to be error; “The technique of establishing a person's identity in a canine scent lineup has not been subject to judicial scrutiny in this state. Our common knowledge that scent travels through air and that vacuum devices pick up particles does not make transferring scent with a “modified dust buster” any less novel.” The court concluded that an STU was a novel device used in furtherance of a new technique; “We find the approaches taken in jurisdictions that have uncritically accepted scent identification evidence to be too facile.” The court criticized Winston and Roscoe. “[W]e are concerned in this case with the possibility that the scent of the shell casings found at the scene of the shooting may have been affected by the heat and pressure of being fired from a gun, the passage of time between when the casings were purportedly touched by defendant Mitchell, the conditions under which the casings were stored, and collection of the casings' scents by the scent transfer unit. Dog handlers D'Allura and Hamm testified that a scent will remain on an object for two to four months after it has been touched and that Reilly had succeeded in lineups conducted with objects that had been burned beyond recognition or surgically sterilized. But no effort was made to present information from any academic or scientific sources, let alone peer review journals, regarding these testimonial assertions. Thus, we are left with anecdotal rather than scientific explanations of Reilly's capabilities.” The court was not persuaded of the individual scent theory, and was also concerned that dogs used for the scenting abilities are not often Labrador retrievers. Evidence should not have been admitted but the court held this to be harmless error.

People v. DeSantiago, 2003 WL 21753766 (Cal.App. 2d Dist. 2003). Labrador scented on clothing left in car that witness saw suspect remove; dogs scented to clothing and trailed in neighborhood where suspect lived to apartments suspect often went to; also alerted to suspect’s mother’s house, another suspect’s grandmother’s house; alerted to car a suspect may have been in; could not enter one property because of aggressive dog. Admitted by trial court, but appellate court said Kelly hearing on STU had to be held, and testimony of defense expert Bogardus should have been admitted. Bogardus believed scent evidence would only last 5 days. The court reversed, specifying that there must be a Kelly hearing on the scent transfer unit.

People v. Demirdjian, 2003 WL 1963204 (Cal.App. 2 Dist. 2003), Demirdjian v. Sullivan, 2009 WL 2767673 (C.D. Cal. 2009) (habeas corpus), 2016 WL 4205938 (9th Cir. 2016) (denial of habeas affirmed). A tracking dog went from the crime scene to the house of the defendant's parents, and later performed a station identification of the defendant when there were about 30 people in the police station. Nineteen days later another canine team used a pad prepared from a bloodstained rock on the day of the crime or day after the crime and matched the scent to the scent of the defendant. No information about foils or other procedures was given in the case. The habeas corpus petition was denied by a federal district court and affirmed in 2016 by the Ninth Circuit. 

2004

People v. Aguilar, 2004 WL 2051385 (Cal.App. 2Dist. 2004); Aguilar also sought review by petition for writ of habeas corpus, which was denied. Aguilar v. Woodford, 2009 WL 509127 (C.D. Cal. 2009). Labrador was scented to scent pad made from passenger seat of impounded car more than a month after crime; choice of scent pads from defendant’s clothing and three other scent pads; scent pads also made from shell casings but no conclusive scent matched to casings. Dog scenting described as “of questionable probity,” but not reasonably likely outcome would change if retrial granted so court did not address substantive issue of admissibility of dog scent evidence.

People v. Chavez, 2004 WL 1173075 (Cal.App.2 Dist. 2004). Scent pads prepared by STU 100 from passenger seat of car involved in crime; dog taken to alley near police station, went to interview room and alerted to suspects. Defense counsel objected to dog handler testimony saying that he was not advised there would be dog scent evidence, but court noted that witness list specified individuals were dog handlers; therefore objection was not timely; failure to object was part of defendant’s ineffective assistance of counsel argument.

People v. King, 2004 WL 2012943 (Ct.App. Dist.4 2004). Cadaver dog selected defendant’s car from lineup of three other cars; defendant had been arrested 11 days before lineup; time from crime not usually relevant with cadaver dogs. Cadaver dog’s work analogized to narcotics dog sniff rather than scent identification lineup.

People v. Robinson, 2004 WL 2418068 (Cal.App.2 Dist. 2004). Bloodhound scented to cap found at murder scene outside 7/11, probably worn by defendant; scent pads made same day; lineup at police station day after crime; dog alerted to pad prepared by Capers (who was not charged); proper use of scent transfer unit not established. Admission sought by defendant as exonerating evidence; proper foundation not laid, because Kelly determination would be required; “The need to validate use of the STU in this case is accentuated by the circumstance that the STU was employed by reserve Sheriff's Deputy Hearn, who did not testify, and who was not observed by Slavin as she used the STU. Slavin testified that he did not know how thoroughly Hearn had cleaned the device before collecting scent from the cap. Thus, not only has it not been shown in this case that the STU meets the Kelly test generally, it has not even been shown that the STU was used under conditions that conform to specifications and circumstances under which an STU should be used. Thus, dog scent evidence should have been excluded because there was no foundation for the use of the STU.”

People v. Rivera, 2004 WL 2601335 (Cal.App.2 Dist. 2004). Dog scented to shell casings where victim was shot about six hours after crime, trailed to alley where defendant was arrested, followed path consistent with other testimony. Defense counsel did not request Kelly hearing: evidence of slight corroborative value but other evidence was overwhelming (defense agreed not to object to tracking evidence in exchange for prosecution not attempting to enter scent lineup evidence).

People v. Willis, 115 Cal.App.4th 379, 9 Cal.Rptr. 3d 235 (Court of Appeal 2004). Dog scented to matchbox found in vicinity of taxi in which victim died; at police station alerted to defendant in presence of five deputies; also alerted to several houses where defendant lived or spent time; no proof that defendant touched matchbook from which scent was collected. “The evidence in this case did not meet the requirements of Kelly. The dog handler who testified for the prosecution is not a scientist or an engineer; therefore, he is not qualified to testify about the characteristics of the STU or the unit's acceptance in the scientific community. There was also no proof that the dog handler used correct scientific procedures while employing the STU.” The court also held that dog trailing is different from scent recognition. The prosecution cannot rely solely on anecdotes regarding the dog's capabilities. Instead, a foundation must be laid from academic or scientific sources regarding (a) how long scent remains on an object or at a location; (b) whether every person has a scent that is so unique that it provides an accurate basis for scent identification, such that it can be analogized to human DNA; (c) whether a particular breed of dog is characterized by acute powers of scent and discrimination; and (d) the adequacy of the certification procedures for scent identifications…. None of these foundational requirements were met in this case.” However, it was not reasonably probable the jury would have reached a different result had the dog scent evidence been excluded, so the judgment was affirmed.

2005

People v. Salcido, GA052057 (Los Angeles Superior Court, March 11, 2005). Dog scented to knife from floor of living room (using STU 100); lineup conducted in room in police station where defendant was with two other persons; dog alerted to defendant; no information about foils. Trial court conducted Kelly hearing; the court considered how long scent remains at a location or on an object, whether people have a unique scent, whether a particular breed is necessary, and whether certification procedures are adequate; the court concluded that the STU and dog scent discrimination evidence was admissible; witnesses included Furton, Eckenrode, Stockham, and Myers.

People v. Shulman, 6 N.Y.3d 1, 843 N.E.2d 125, 809 N.Y.S.2d 485 (Ct. of Appeals 2005). Cadaver dog sniffed cars on street near suspect’s house, reacted positively to car defendant used with four other cars on street ignored. Sufficient evidence regarding serial murders that challenge to dog scent evidence did not need to be addressed.

2006

Martinez v. State, 2006 WL 3720136 (Court of Appeals, Houston (14th Dist.) 2006). Bloodhound scented to cocaine bricks thrown from car during chase, alerted to defendants in lineup of persons; same foils used in lineup with two defendants; defendants were only individuals handcuffed. Following Winston, court applied Nenno test; evidence properly admitted.

People v. Schoppe-Rico, 140 Cal.App.4th 1370 (2006). Bloodhound scented on sweatshirt and handgun identified as defendant’s by witnesses; lineup occurred evening of the murder; defendant was selected from line of three “randomly selected deputy sheriffs who stood in a circle with defendant; dog alerted to defendant; only four individuals in lineup. Appellate court found that even if inadmissible evidence was harmless error.

Risher v. State, 227 S.W.3d 133 (Tex. Ct. of Appeals 2006). Bloodhound scented on pad wiped on wrapping of cocaine brick found on side of highway after high speed chase; lineup apparently near point of arrest; alerted to (black) defendant standing with five Caucasian police officers; defendant objected that lineup should have been conducted with scent pads only, not a “live lineup.” Trial court described hearing on admissibility of scent lineup evidence as Daubert hearing; court reviewed Nenno and Winston; appellate court held that trial court did not abuse its discretion in admitting scent lineup.

Robinson v. State, 2006 WL 3438076 (Tex. Ct. of Appeals 2006), 2009 WL 5205361 (Tex. Ct. of Appeals 2009). Dogs scented on electrical cord used to tie up victim and on wallet from which perpetrator took cash; scent pad obtained from victim's clothing; not clear if dogs were scented to only one object before each lineup; scent pad also obtained from suspect's clothing; lineup of paint cans containing gauze pads; initial appeal describes three dogs but second appeal only describes actions of two dogs and one did not sniff entire line of cans. Court reviewed Nenno and Winston; appellate court held trial court did not abuse its discretion in admitting scent lineup.

People v. Melara, 2006 WL 164989 (Cal.App. 2 Dist. 2006). Dog scented to pad from shell casings using STU 100; dog alerted to an individual who was not indicted for a “variety of reasons”; no information provided concerning identification procedure. Not admitted because Kelly/Frye foundation not made by defense; “Defendants' argument is based upon a distinction without a difference. Whether the evidence was offered to prove that Lopez was the shooter or to impeach the deputy's testimony that he had no evidence of Lopez's guilt, the evidence was subject to the Kelly rule.”

2008

People v. Alonzo, 2008 WL 2248628 (Cal.App. 2 Dist. 2008). Bloodhound scented on shell casings with scent transferred to pads by STU 100 at entrance to Glendale Police Department building; dog followed trail defendant took through building to 3rd floor and put his head in defendant’s lap; crime was May 2004; STU to extract scent February 2005; putting head on lap was not dog’s usual alert, which was to jump and bark, though this was explained as due to his age; defense objected Hamm failed to conduct negative response test, and to use a blank pad after cleaning, but court said this went to weight, not admissibility of evidence. Trial court “held an extensive Kelly hearing.” Furton, Eckenrode, Stockham testified.

People v. Giles, 2008 WL 2436529 (Mich.App. 2008). Tracking dog matched scent from gun found near where suspect was arrested to scent from the suspect's coat. Scent was obtained from the gun by placing a sterile gauze pad in a plastic bag with the gun (passive absorption). The "scent lineup" may have been conducted in the officer's house. Other aspects of lineup were not described, including the number of foils. Defendant's argument for ineffective assistance of counsel included failure of his counsel to raise Daubert objection to the scent matching, but the court was "not persuaded that the evidence offered was of such a 'scientific' nature as to necessitate application of Daubert to the scent lineup. The jury was cautioned that the dog tracking evidence (meaning the scent lineup evidence) should be considered "with great care" and the jurors should understand "it has little value as proof." There was sufficient other evidence to support a guilty verdict in any case and the the conviction was affirmed.

2009

Buchanek v. City of Victoria, 2009 WL 500564 (SD TX 2009), 2010 WL 1268069 (S.D. Tex. 2010). Dogs tracked from victim’s body to victim’s house, and later from street to house of the accused; scent lineup was also conducted; suit for wrongful search, seizure, and investigation; scent for suspect in lineup was legal document he may not have handled since his deployment to Iraq; scents of foils may have been scents handler kept for such purposes, prepared at different times than the legal document handled by the suspect; foils may have not clear if the lineup was blind or if individuals watching the lineup were unaware of the location of the suspect’s scent. Motions to dismiss by lead officer in case and handler were denied.

Perkins v. State, 2009 WL 2837356 (Tex. Ct. of Appeals, 1st Dist. 2009). Three bloodhounds were scented on samples of scent evidence found at victim’s house; lineup samples for suspects obtained by swabbing their arms's with gauze pads; lineup conducted in rear parking lot of police station; each lineup of six canisters, one for each suspect and three foils; all dogs alerted to suspects only; multiple alerts sought for each lineup. Court cites Nenno, Winston, Risher; defendant failed to establish evidence should not have been admitted.

Winfrey v. State, 291 SW3d 68 (Tex.App. 2009), reversed, 323 S.W.3d 875 (Tex.Crim.App. 2010); motion for sufficiency review denied, 2011 WL 130492 (Ct. App. 2011). Bloodhounds scented to pads rubbed on clothing of victim and three suspects; lineup occurred in vacant lot near sheriff’s office; cans were placed in line about 10 paces long 17 days after crime; scent pads were placed in cans; in the first lineup the dogs were scented to a pad from the victim’s clothing; the lineups generally consisted of a scent pad from one or two suspects and four or five non-suspects; this was repeated three times; the dog alerted to 2 of the suspects; lineups were videotaped. In reversing, the Texas Court of Criminal Appeals noted that no eyewitnesses put the defendant at the crime scene, the state was unable to match the defendant to a fingerprint and footprints found at the crime scene, and the defendant did not match the DNA profile obtained from the crime scene. The evidence convicting, aside from the scent lineups, consisted of Winfrey's belief that he was the number one suspect when he wasn't and the fact he told a cellmate things he had heard about the crime but admitted nothing to the cellmate. The court said this was "legally insufficient to support a conviction of murder beyond a reasonable doubt." The court cited other state courts that had held that dog-scent evidence was insufficient, standing alone, to support a conviction, and cited Taslitz (42 Hastings Law Journal 15 (1990)) in holding that scent-discrimination lineups were to be regarded as "separate and distinct from dog-scent tracking evidence." The court said that the scent lineup evidence could raise a "strong suspicion" of the defendant's guilt, but could not convict him. A judgment of acquittal was entered by the appellate court on September 22, 2010. See $27,877 v. Texas, 2010 WL 5187608 (Ct. App. 2010) (concurrence finding weaknesses of scent lineup as described in Winfrey are relevant to drug sniffs at front door, garage door, and to cash found under a bed).

Winfrey (id.). Three bloodhounds were scented to scent from the victim’s clothing; lineup took place on a baseball field; six cans, one with the scent of the defendant were lined up and three dogs were taken down the line one at a time; each alerted to the defendant’s scent; the lineup was videotaped. Court cited Winston in footnote; did not discuss scientific basis but reviewed procedure.

People v. White, 2009 WL 3111677 (Cal.App.2Dist. 2009). Shell casings from crime scene put in separate manila envelopes; casings were wrapped in scent pads for about ten minutes and placed in Ziploc bags; scents of four individuals, including defendant’s, were collected from their arms and placed in boxes, which were then arranged in a diamond formation; dog was taken to center of the diamond and scented to pad that had held shell casing; dog alerted to box containing defendant’s scent; officers who set up lineup were visible to handler; samples may not have been adequately separated or preserved; contamination possible from manila envelopes; defense counsel could not interpret dog’s records; handler’s testimony that he was not aware dog had made any mistakes in 171 lineups was accepted as sufficient for dog’s history. Appellate court was satisfied trial court had conducted adequate admissibility hearing on scientific basis of scent lineup (California Kelly requirements satisfied); criticisms of defense witness (Lawrence Myers) were found not to show evidence was unreliable or inherently problematic, only that it could have been improved upon.

Thomas v. State, 297 S.W.3d 458 (Tex.App. 14 Dist. 2009). Scent taken from victim of robbery was matched to $100 bills found on suspect. Although several scent samples are mentioned, it is not clear if this was conducted as a lineup.

Jennings v. State, 2009 WL 167858 (Tex.App.-Hous. (14 Dist.) 2009). Robbers escaped when police arrived but one victim had recognized one of the robbers. Scent samples were taken from car keys the defendant had held, as well as a door handle he had touched. After arrest, a sample was taken from him. A lineup of six cans was held with the scent from the car keys in one can and scents of foils in the others. Three dogs were scented to scent obtained from the suspect. The first dog did not alert to the scent from the keys on the first pass, but did so on the second. The two other dogs alerted to the defendant's scent on the first pass. The next set of trials involved using the scent from the door handle. All three dogs alerted to the door handle after being scented on the defendant's scent. The defendant argued that his counsel should have been present at the lineup because it was a critical stage in the proceedings, and said that the videotape of the lineup should be excluded. The court concluded that the defendant had not been denied his Sixth Amendment right to counsel because his counsel was not present for the lineup. The defendant also argued that the scent lineup was "improperly suggestive" because of "(1) the handler's knowledge, after the first dog hit on a can, of the target scent's location; (2) Ashmore's commentary on the tape, directing the audience's attention to the fact the dog hit on a particular can; and (3) Ashmore's proximity to the handler when Ashmore was commenting on the results." The court held that this was not a sufficient objection and, even if it were credited as such, the error was harmless because of the other evidence. The conviction was affirmed.

2010

Curtis v. City of Houston, 2010 WL 538031, 2010 WL 1270277 (S.D. Tex. 2010). Lineup not described in decisions on motion to dismiss. Suit for false arrest against officers and Deputy Keith Pikett, involving scent lineup conducted August 6, 2007; defendants’ motion to dismiss on basis of statute of limitations denied as statute began to run from date judge threw out charges; state law claims against individuals dismissed but federal law claims allowed to proceed.

Isler v. State
, 2010 WL 723172 (Tex.App.-Hous. (14 Dist.) 2010). Two scent lineups, after a tracking, were used in an attempt to identify two suspects as the murderers in a drug deal gone bad. The two suspects had driven to Houston to buy marijuana, and killed the buyer in his car. Scent pads were created by rubbing the passenger seat (where one suspect sat) and the back seat (where the other suspect sat). In the first lineup, scent pads prepared by the suspect and foils were put in cans and the three dogs, in sequence, were scented to the pad from the passenger side of the vehicle in which the murder occurred. All three dogs alerted to the can in which the first suspect's scent had been placed. In the second lineup, the handler did not get scent from the second suspect (the appellant in this case), but rather from the passenger seat where this suspect had been sitting in the drive to Houston. Thus, in the second lineup, the dogs were scented on the pad made by rubbing one car seat and alerted to a pad made from another car seat. The lineups do not appear to have been blind. There is no mention of the cans being cleaned between trials. Defense counsel did not object to the admission of the scent lineup evidence at trial, but sought to assign error on appeal. The appellate court held that, without an objection at trial, the matter was not preserved for appeal. The conviction was affirmed.

Pate v. Texas, 2010 WL 3341853 (Tex.App. Christi 2010), aff'd with substituted opinion, 2010 WL 3921177 (Tex. App. 2010). The handler, Keith Pikett, testified as to his methodology: "Well, we take and put out six quart-size paint cans that are numbered so you can tell one from another. And we put it so that the wind is crossways so the scent is not blowing from Can Two into Can Three or One; it's blowing this way so it's not affecting it. Then somebody other than myself sets out six scents of six people and we do it by race and sex, so I ask them and I have bags of hundreds of whites and blacks and Asians. And so they pick filler scents and the scents of the potential suspects. They place them out in the cans. I don't know which person's in which can. And then we bring the dogs out-I have three of them I'm using in this case-one at a time. They're allowed to smell some piece of evidence, and what they're doing is trying to see [if] the smell on this piece of evidence [is] the same as the smell on one of these cans. And the key to this is the dog is given the same reward if he picks somebody in one of the six cans or if he picks nobody, they're praised and given a reward. So they have no reason to just even pick a can at random." The dogs smelled shell casings found at the scene of the murder and alerted to the can containing the defendant's scent. The dogs were also scented on a blue denim shirt found at the crime scene and alerted to cans containing the defendant's scent as well as cans containing the scents of two other suspects. Pikett testified that one of his dog had made only two errors in 2,334 cases and the other dogs had made no errors. A video of the trials was introduced in evidence over objection. Citing Winston and Winfrey, the appellate court concluded that the trial court had not abused its discretion in admitting the scent lineup evidence.

2011

Texas v. Smith, 335 S.W.3d 706 (Ct. App. 2011). Deputy Pikett conducted a human scent lineup on July 7, 2005, with dog being scented to T-shirt taken from trunk of vehicle where body was found. Dogs were also scented to a scent sample taken from a seat in the vehicle and a firearm, several times indicating to the defendant. Trial court found (1) possible cross-contamination of scents, (2) lack of blind scent lineups, (3) lack of appropriate field and training records, (4) Pikett's records and procedures not subject to peer review, (5) lack of validation testing, (6) "no clearly accepted method for conducting scent lineups, (7) no independent evidence presented by prosecution regarding potential error rates, (8) possible cueing, and other failings. After reviewing Winston and scientific evidence cases, the appellate court concluded that the trial court did not commit reversible error in excluding Pikett's testimony, noting that "the trial court could have concluded that there was too large of an analytical gap between the data offered and Deputy Pikett's proffered opinion."  (See Smith v. Texas, No. 14-12-00790-CR, 2014 Tex.App. LEXIS 5717 (Ct. App. 2014), affirming murder conviction, giving brief summary of exclusion of scent-lineup evidence.)

California v. Smith, 2011 WL 1350762 (Ct. App. 2011). A tracking dog was scented from pads created by an STU from a handgun used in an attempted drive-by shooting. The dog was scented in one part of a police station and found the suspect in another part of the station, presumably by following the path the suspect took in reaching the room where the dog found him. The scent identification was admitted by the trial court after a perfunctory hearing, which relied largely on incorporating the findings of Salcido. The appellate court found that admitting the scent identification evidence might have been error, but it was harmless because of the substantial amount of other evidence produced against the defendant.

Powell v. Texas, 2011 WL 1579734, No. 14-09-00398 (Ct. App. 2011). In a car chase, a suspect in one car leaned out the window and shot and killed the victim in another car. Items found at the crime scene included eight spent cartridge casings and a white T-shirt. These items were used to scent three dogs handled by Deputy Pikett, and all three alerted to the defendant’s scent, but not to an accomplice. Samples were placed by another officer and the scent lineup was videotaped. The opinion mentions that a gauze pad was used to obtain scent from the evidentiary items. It is not specified that a scent transfer unit was used on the shell casings, but it seems likely. Some mention of cueing is described in the appellate decision. “On cross-examination, Deputy Pikett seemed to clarify that he does not personally believe dogs can be cued but avoids placing the samples to prevent any accusation of subliminal cuing. Deputy Pikett agreed the National Police Bloodhound Association advises in its procedure manual that different officers should place the samples and lead the dogs thereto; but he suggested this recommendation was included to avoid accusations by defense counsel that an officer subliminally cued the dogs…. Apparently, appellant's primary contention is that Inspector Oglesby, who did place the samples, might have subliminally cued the dogs to appellant's sample. However, appellant cites no evidence indicating an officer who does not lead the dogs to the samples can nonetheless subliminally cue them to the suspect's sample. In fact, Deputy Pikett opined that Inspector Oglesby could not cue the dogs because, after placing the samples, he stood across the room videotaping the process while the dogs were led to the samples. Moreover, the only evidence pertaining to the association's recommendations was advice that different officers should place the samples and lead the dogs thereto—the procedure followed in this case. Appellant cites no evidence of a requirement or recommendation that the officer who places the samples should then abstain from any further participation in the process. To the contrary, Deputy Pikett testified, ‘It doesn't say you can't have anybody at the location who doesn't know where the person is.’” The appellate court affirmed the conviction. In fact, cueing is possible from persons other than the handler.

California v. Watts, 2011 WL 2150147 (Ct. App. 2011). Three shootings occurred over a two day period involving rival Los Angeles gangs. Using a scent transfer unit, scent was collected at the third crime scene from a shirt and an expended shell casing. The scent pads onto which scent was transferred using the STU were given to the forensics unit for refrigeration. The bloodhound used in the investigation, Enya, had worked 120 to 130 scent discrimination cases, and to the handler’s knowledge, “had never misidentified anyone.” What happened at the police station is explained by the court: “At the 77th Street station, Detective Lane asked Reyburn to have Enya run trails using the scent obtained from the blue shirt and the shell casing. Lane told Reyburn that ‘a possible suspect was inside the building,’ but did not tell him where the suspect was located. Reyburn explained: ‘I don't want to know’ where the suspect is in the building ‘[b]ecause it would influence me as a handler while working the dog. I have to go on what the dog is doing, not on what I want to do.’ Reyburn put Enya in a harness with a 15–foot lead, and took her inside the southeast area of the station. He gave Enya a scent pad taken from the blue shirt, let her inhale it, and told her to search. Enya headed to the foyer, sniffed around the elevators, and ‘downed’ in front of the westernmost elevator, indicating that she wanted to go through the door. When the elevator came, they went to the second floor, where Enya continued to trail through several hallways and into the homicide bureau and up to a partially ajar door. Enya's tail wagged heavily, indicating that she was happy. Reyburn opened the partially ajar door. Enya entered and went up to defendant, who was seated in the room. Enya nuzzled defendant and sat down in front of him, indicating her identification of the scent. Thereafter, defendant was moved to a new location. Reyburn ‘did not know where he was moved to, nor the route that he had taken.’ After approximately 15 minutes, Reyburn gave Enya the scent pad taken from the shell casing. Starting next to a stairwell in the homicide bureau, Reyburn told Enya to search. She circled the office, and went down the stairwell. She downed in front of one of three doors, and then went through the door into the lobby and up to an interview room. The door was ajar. Reyburn opened it, and Enya entered. She pounced on the lap of defendant, who was seated there, indicating her scent identification.” To satisfy Kelly requirements regarding the scent transfer unit, the prosecutor offered the record of Salcido, including the 637-page transcript of the Kelly hearing in that case. The prosecution cited Smith in arguing that it was appropriate to take judicial notice of the Kelly hearing in Salcido. The trial court agreed that it was appropriate to take judicial notice of the Salcido hearing regarding STU-produced evidence. The prosecution did not refer to the scent identification in closing arguments, but the defense did. Defense counsel, referring to the scent identification, “minimized its significance, arguing that because ‘the dog’ could not ‘tell you when that scent was laid down’ on either the blue shirt or expended casing, the dog's identification of defendant ‘can't tell you who the shooter was.’ He asked rhetorically: ‘Can the dog come in and say: “[Defendant] loaded that weapon with that cartridge”? That's how his scent got on there.’ Lastly, defense counsel questioned why the STU had been used on only one casing. He argued: ‘They did a scent capture [on] one shell casing, and they never did any of the others.... I'm not sure what that means.... There was plenty of time to test it. It wasn't tested, all these other shell casings that were left. The burden is on the prosecution.” Defendant’s lawyer argued that the “station identifications became the glue which held this shaky case together.” On appeal after conviction, the defense argued that even if the handler did not know who the suspect was, “he could have influenced Enya’s search simply by consciously or unconsciously urging her to continue until she found a likely candidate in a likely location.” This is a variation on a cueing argument. Counsel argued that “station identifications should not be admissible in court.” The appellate court, however, did “not reach the merits of defendant’s arguments because they have been forfeited by his failure to raise them in the trial court.” Further: “Absent a timely and specific objection, the claim is forfeited…. In this case, defendant failed to make the objection that he now advances: dog scent station identification is not reliable, either in general or in this specific case.” On appeal, the defense also argued that the defendant had received “prejudicial ineffective representation,” but the appellate court was not persuaded. Nevertheless, defense counsel at trial appears to have overlooked research critical of the kind of station identification evidence that was admitted here, as well as overlooking the fact that the defendant may, in the circumstances, have been a relatively easy target for identification by the dog. If the handler was as familiar with scent identification procedures as the evidence indicated, it is troubling that a more rigorous identification procedure was not employed.

Louisiana v. Jenkins, 2011 WL 2448235 (Ct. App. 2011). Louis Bordes received a phone call from “Rico,” who said he was interested in purchasing some speakers Bordes was offering for sale. Rico also wanted to buy marijuana. They agreed to meet at a location in St. Tammany Parish, but when Bordes arrived there, he was robbed by two men in a car, who took his wallet, cell phone, and cash. Bordes used his girlfriend's cell phone to call the police and report the robbery. The police initiated a GPS track on the phone that had been taken from Bordes. The phone was tracked to a fixed location and found on the ground. Deputy Robert Edwards of the St. Tammany Parish Sheriff’s Office arrived with his tracking dog, Flex, at the location where the phone was found. Edwards scented Flex to the phone and Flex tracked to the place where Robert Jenkins, the defendant, was already being questioned. The defendant, according to the court, asserted that “the canine tracking was not reliable because it is likely the dog traveled to the area near the police vehicle seeking warmth from the running engine.” The court determined that Bordes’s identification of the defendant “was corroborated by the canine’s positive track to the defendant as a match to the scent found on the abandoned cellular phone….” The conviction was affirmed.

U.S. v. Graham, 2011 WL 1457131 (WD N.Y. 2011).  On October 17, 2008, a Honda Accord crashed in Rochester, New York. Deputy Sheriff Andrew Belmont was requested so that his K-9, Czar, might help find the a suspect who had left the scene of the accident.  “Belmont … put Czar in his tracking harness and began to track from the open driver’s side of the crashed Honda. Czar had tracked for approximately ten seconds, or a distance of approximately 50 to 100 feet, when Belmont was notified over the radio that the suspect was in custody…. Belmont advised the officers to remain at the location with the suspect so that Czar might confirm that he was the individual who had run from the vehicle.”  Belmont and Czar resumed tracking and “after a distance of approximately another 150 or 200 yards, Belmont and Czar encountered Graham in custody in the backyard of 2 Tarrytown Drive…. Belmont stopped Czar approximately twenty yards from Graham to minimize any risk of injury.  Based on the track that Czar had followed, Belmont opined that Graham was the individual who had fled from the Honda.”  Belmont testified that the dog’s nose was “‘basically glued to the ground the whole way,’ which led him to conclude that Czar was using a ‘ground track’ to detect ground disturbance odors…. A portion of Czar’s path also followed an asphalt road, however, which led Belmont to conclude that Czar must have followed human air scent during that portion of the track.”  After this procedure, Belmont released Czar and commanded that he “find the bang,” since the dog was trained in nitrate detection.  Czar did not find a firearm in the area, though another dog, also trained in nitrate detection, did.  Dr. Kenneth Furton, a prosecution witness testified that “studies have demonstrated that canines have the capacity to achieve an 82% accuracy rate in tracking a human, an 80 to 90% accuracy rate in following “aged trails” and a 75% accuracy rate in scent-identification line-ups.” He also “opined that evidence gathered by human scent canines may ‘be relied upon as forensic evidence as long as the reliability of the dog can be established….” Further: “Furton testified that Czar and Belmont acted consistently with their training and ‘that the track to the suspect indicated a positive match between the human scent track/trail’ from the crashed vehicle and Graham.”  Dr. William Shields, another expert, noted that “dogs, when they’re used for the detection of scents  of humans or scents of drugs or scents of explosives, are not acting as independent agents; they are acting with a handler.  And the behavioral interactions between the handler and the dog go both ways.” The Magistrate Judge recommended that the trial court receive the testimony of the canine handlers. 

Winfrey v. Texas, 338 S.W.3d 687 (Ct. App. 2011).  Megan Winfrey was one of three individuals charged for the murder of Murray Wayne Barr in August 2004 (see entry under “Winfrey” for 2009).  Part of the evidence against her was a scent lineup described by the appellate court as follows:  “To assist in the investigation, Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff's office. Pikett used bloodhounds trained to perform ‘dog-scent lineups.’ Pikett performed a dog-scent lineup with Winfrey's scent sample in August 2004. Pikett used two bloodhounds to perform the lineup. The lineup involved scent samples obtained from the clothes Burr was wearing at the time of the murder and scent samples from six females, including Megan Winfrey. The dogs were ‘pre-scented’ on the scent obtained from Burr's clothing and then walked by a line of paint cans that each contained one of the six female scents. The jury viewed a video showing both dogs alerting to the can containing Megan Winfrey's scent. An ‘alert’ occurs when the dog matches the scent from the victim’s scent pad to the scent pad obtained from the suspect.” The appellate court noted that dog tracking evidence can only be supportive if there is other corroborating evidence, citing State v. Loucks, 98 Wn.2d 563, 656 P.2d 480 (Wash. 1983), and quoted the 2009 case of Richard Lynn Winfrey, 323 S.W.3d 875 (above), which held that “when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive.”  Although the appellate court here found other evidence sufficient to affirm the conviction of Megan Winfrey, it stated as to the dog-scent lineup that as evidence it was “insufficient to establish Megan Winfrey’s guild beyond a reasonable doubt and we set it aside from our sufficiency review.”  Justice Charles Kreger, dissenting, added additional facts about the scent lineup, including that there was a problem with one of the dogs used in the lineup of Megan Winfrey’s scent. “Pikett explained that the first time Quincy alerted to the paint can with Winfrey's scent he ‘didn't like the way [Quincy] did it.’ Pikett stated that Quincy hit ‘between two cans’ and he believed this happened because ‘[t]he wind [was] shifting directions.’ They re-aligned the paint cans and re-did the lineup with Quincy. Quincy alerted to the paint can with Winfrey's scent. Pikett testified that Jag also alerted to the paint can with Winfrey's scent.” Justice Kreger argued that the evidence against Megan Winfrey was legally insufficient to support her conviction.

Texas v. Dominguez, 425 S.W.3d 411 (Ct. App. 2011).  Deputy Pikett used three dogs scented to gauze pads swiped on items found at the scene of two murders, including pillows, two cell phone cases, and a .45 caliber shell casing. The gauze pads were placed in a scent lineup with five other gauze pads that contained scents of foils, “who were individuals of the same race and gender as Dominguez [the suspect], collected at an unknown earlier point in time.” The scent lineup was described as follows: “A police officer placed the six pads in coffee cans. Deputy Pikett did not know the location of Dominguez's scent pad, but the other officer present at the scene of the lineup did know. The officer changed the position of Dominguez's pad for each of the objects. Deputy Pikett testified that his three bloodhounds alerted to the pad containing Dominguez's scent for each pad corresponding to an object associated with the murders.” Dr. Kenneth Furton testified, according to the court, that “scent-discrimination lineups are an investigative tool and more often useful as a tool to exclude persons as suspects than as evidence of identity.” Nevertheless, “Furton testified that Deputy Pikett’s methodology was reliable,” and “stated that Deputy Pikett’s use of single-blind lineup and the movement of the suspect’s scent sample during the testing of several objects helped to ensure reliability.” However, on the videos he viewed, Furton “could not tell that the dogs were alerting….” Nevertheless, he said that the handler alone could decide whether a dog is alerting and concluded the alerts were reliable, though he also criticized Pikett on a number of points including that samples were stored in Ziploc bags rather than glass containers. He also doubted Pikett’s claim to have 100% success in scent lineups. He also “testified that the United States is behind Europe in the development of reliable methods to evaluate scent-lineup evidence and use it in courts of law.” Dr. Lehr Brisbin, testifying for the defense, disagreed with Furton, saying that Pikett’s methodology was unreliable, because (1) the dogs were on leash during the trials and could have been cued; (2) the lineups were not double-blind; (3) the use of multiple dogs was a problem because the handler might cue the subsequent dogs to the alert position of the first dog; (4) Pikett did not use negative runs (blank trials); and (5) no outside auditor looked at the results. From what he saw, the dogs seemed to bay at every can, so Brisbin could not tell how Pikett distinguished alerts. He also doubted Pikett’s claim for perfect accuracy. The trial court, in making its determinations, had noted that gas chromatography/mass spectrometry (GC-MS) was not yet sufficiently refined for odor identification purposes.  The trial court had concluded that “[c]anine scent identification is not junk science, but it has not yet been developed to the point that it is accurate, repeatable, verifiable and reliable to the extent that it should be used as evidence in court.” The trial court had stated: “Properly conducted double-blind canine scent lineups can raise reasonable suspicion, but can be likened to a drug field test that must be verified by a laboratory analysis, except that there is not a laboratory analysis that can verify the canine scent lineup [presumably such as GC-MS].”  Thus, “[c]anine scent lineups, alone, should not be used as the basis for the identification of a suspect in a criminal case.” The Texas appellate court ruled that “the trial court’s valid findings support its suppression of the scent-lineup evidence.” The court said that there was “an analytical gap between the scent data and the ultimate opinion here.
 
2012

California v. Stanford, 2012 WL 1365744 (Ct. App. 2012). Station identification-type situation described in blog.

California v. Fernandez, 2012 WL 2025616 (Ct. App. 2012). Witnesses described defendant’s intent to kill the victim, as well as statements he made afterwards.  A scent transfer unit was used to create scent pads from the knife found 75 to 100 yards away from the body.  A tracking dog was scented at the crime scene and followed a path that led to an area where the defendant had encountered one witness, but the trail “ended inconclusively near an apartment building.”  When the defendant was arrested a scent pad was created from his belongings.  A “scent identification lineup” was conducted by arranging the scent pad from the belongs and three unrelated scent pads in a diamond pattern.  The same handler that had attempted to trail from the crime scene exposed his dog to the scent pad created from the knife, then permitted the dog to sniff each of the scent pads in the diamond patter.  “The dog responded to the scent pad taken from appellant’s belongings.”  The defendant argued on appeal that the dog scent identification lineup was improperly admitted, and the appellate court discussed some prior scent lineup cases, but determined that since “no objections to the evidence regarding the dog scent identification lineup were asserted at trial, appellant has forfeited his contentions.”

Winfrey v. San Jacinto County, No. 11-20555, 2012 WL 3062159 (5th Cir. 2012).  Summary judgment as to most defendants in action under 42 U.S.C. 1983 upheld, but sufficient evidence had been admitted that Deputy Sheriff Pikett had cued his dogs to that judgment in Pikett’s favor was reversed.  For facts see description of state court proceedings in Winfrey (2009).  Evidence that Pikett cued his dogs involved a videotape made of the scent lineup used in Winfrey’s trial, and the affidavit of Steven Nicely, who reviewed the film.  Nicely’s affidavit, according to the Fifth Circuit, “concludes that Pikett manufactured his results,” most probably by consciously signaling the dogs to alert.  Nicely stated that Pikett’s procedures were more consistent with his seeing what was in the cans than in relying on his dogs to identify the odor.  Also, Nicely said that Pikett jerked his dogs’ leashes and strategically stopped as he paced beside a row of cans.  Nicely was not the only one to make such suggestions concerning Pikett, as the Fifth Circuit stated:  “Nicely's affidavit comports with those of experts retained in other cases challenging Pikett's methods, which reason that Pikett cued his dogs by manipulating their leashes and by altering his footsteps during scent line-ups. In another case, one of those experts concluded that the dogs gave no visible signs of alerting to the target scent.”  Since Winfrey “presented evidence that Pikett made ‘knowing efforts to secure a false identification,” Pikett was not entitled to qualified immunity.

California v. Pietro, 2012 WL 5990325 (Ct. App. 2012).  Three members of the Barrio 13 gang of Los Angeles were convicted of a triple murder at the home of a drug dealer.  The evidence consisted primarily of the testimony of witnesses who participated in minor roles or were told about the murders after the crimes were committed.  A scent lineup also connected the shooter of the three victims to one of the victims.  This is described by the appellate court as follows:  “On May 6, 2009, a K–9 scent discrimination lineup was prepared using Hector's shirt [seized while this defendant was in lockup], and the pants pocket of the murder victim that had been turned inside out. In the scent lineup, four boxes were placed in a specific formation, three of which contained scent pads from Hispanic men unconnected to the triple murder. The fourth contained Hector's scent. A dog sniffed the pocket taken from the crime scene, which was placed in the middle of the box formation and alerted to the box containing Hector's scent.”  The scent lineup was not otherwise described or analyzed in the appeal.  The convictions were affirmed with slight modifications on sentencing issues. 

2013

Winfrey v. Texas, Texas Court of Criminal Appeals, PD-0943-11 (2013).  Three individuals were charged in the murder of Murray Wayne Barr, including Megan Winfrey.  (See summaries for 2009 and 2012.)  On an earlier appeal, the canine evidence against Megan Winfrey was thrown out.  Winfrey v. State, 338 S.W.3d 687 (2011).  Nevertheless, that court found other evidence, particularly statements of Winfrey’s father while he was incarcerated, sufficient to uphold the conviction.  The Texas Court of Criminal Appeals reversed here, rendering a judgment of acquittal for each offense.  Judge P.J. Keller, dissenting, would have allowed the scent lineup evidence as supportive, though apparently not of much weight:  “In Richard Winfrey, Sr.'s case, we held that ‘scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.’ We explained that the dangers associated with using this type of evidence could be alleviated only by the presence of corroborating evidence, so inculpatory results from a scent lineup could be used only in a supportive role. In the present case, other evidence exists that connects appellant to the crime, so the scent-lineup evidence plays only a supportive role in supporting this conviction. In that regard, the scent lineup is some evidence, in combination with other evidence in the case, … connects appellant to the crime. But as discussed above, and as will be discussed further below, there is enough evidence to connect appellant to the crime without considering the scent evidence.”

Leonard v. Thaler, No. H-12-1814, 2013 WL 3280216 (S.D. Tex. 2013).  Petitioner, Dominique Pierre Leonard, filed petition for habeas corpus, to which respondent, Rick Thaler, Director of Texas correctional division, filed a motion for summary judgment.  The petition for habeas corpus was denied but the motion for summary judgment was granted.  Petitioner had argued ineffective assistance of counsel for his lawyer’s failure to object to the dog scent lineup testimony which he said had bolstered witness identification testimony.  Leonard referred to the dog scent lineup as “junk science.”  The scent lineups had been conducted by Deputy Keith Pikett. The federal district court rejected the bolstering argument stating:  “Pikett's testimony regarding the dog scent lineups did not amount to bolstering because it was used to provide the jury with evidence that Leonard was at the crime scene. Leonard fails to show that Pikett's testimony was used to persuade the jury that any witness should be given more credibility.”  Leonard noted that Pikett’s methods had been called into question (e.g., Winfrey v. State, 323 S.W.3d 875 (Ct. App. 2010), the court concluded that “Pikett’s testimony regarding the dog scent lineups was not a highly significant factor in the context of the entire trial….”  A thorough investigation might have revealed that some of Pikett’s approach was producing questionable evidence, “Leonard fails to show prejudice because he has not established that such an investigation would have changed the outcome of his trial.”  Even if such a challenge had been successful as to the scent lineup evidence, “there was not a ‘reasonable probability’ that the outcome of Leonard’s trial would have been different….”
 
Trigueros v. Adams, CV07-4335 BRO (FFM), 2013 WL 3157518 (C.D. Cal. 2013). Petitioner, Enrique Trigueros, sought habeas corpus on his conviction for first degree murder and other charges, all in connection with his membership in a criminal street gang. Part of the petition was an argument for ineffective assistance of counsel for failure to adequately object to the admission of dog scent evidence. Defendant and others were identified at the police station. “In his opening statement, the prosecutor stated that Officer Hamm would testify that his dogs (Scarlet and Knight) followed a scent trail to the rear house and then to both Petitioner and Chavez at the police station.” The court stated: “Petitioner faults his counsel for failing to challenge the dog scent evidence as lacking in scientific proof of reliability under California's Kelly/Frye test. But, as the court of appeal noted in rejecting this claim, the applicable law at the time of Petitioner's trial did not require that dog tracking be subjected to that test…. Rather, according to the court of appeal, dog tracking evidence was admissible provided that there was a foundation for the dog's ability and reliability…. Given this state of the law, there is no reason to believe that the trial court would have excluded the evidence had counsel more vigorously objected to it. On the contrary, in accordance with the state of California law at the time of Petitioner's trial, the trial court had already stated that it believed that the evidence was admissible, subject to it being corroborated by other evidence. And, there is no question that Officer Hamm's testimony provided the requisite foundation to show the dogs' ability and reliability. As such, any further challenge would in all likelihood have failed.” (Mitchell, discussed above for cases of 2003, had yet to be decided.) The court concluded that there was no reason to believe that the jury would have reached a different result even if the canine evidence had been excluded. The magistrate recommended that the petition be denied.

Simpson III v. State of Maryland, 2013 Md.App. LEXIS 134 (Ct. of Special Appeals, 2013). Accelerant detection dog alerted to shoes in suspect's closet.  This, along with substantial other evidence, including a detailed confession, provided substantial identification of the perpetrator. For detailed analysis, see blog of October 16, 2013.  A petition for write of certiorari was granted on January 24, 2014.

Aguilar v. Woodford, 725 F.3d 970 (9th Cir. 2013).  Failure to disclose history of mistaken identifications violated Brady v. Maryland, 373 U.S. 83 (1963).  For prior history, see above under 2004.  For extensive analysis of the Ninth Circuit deision, see blog of August 5, 2013

Watts v. Barnes, 2013 WL 5933918 (C.D. Cal. 2013), magistrate’s recommendations to federal district court for Central District of California on habeas petition.  For facts see description in California v. Watts (2010) above.  While petitioner argued that the scent identification evidence “became the glue which held this shaky case together,” the prosecutor argued that the scent identification was just one of the “building blocks” in the case connecting Watts to the shooting.  The magistrate found that the scent identification “was relevant in that it corroborated [a witness’s] identification of Petitioner as the shooter in the third shooting.” “Even if admission of the dog scent identification evidence was error of constitutional magnitude, habeas relief is not warranted because it is not reasonably likely that the result would have been different absent admission of that evidence.”

2014


Acosta v. Texas, 2014 Tex. Crim. App. LEXIS 687 (May 7, 2014).  Defendant argued that reliance on positive canine alert to currency was inappropriate because appellate court had “hinted at the lack of scientific foundation of human-scent discrimination lineups in which dogs differentiate among human scents in a ‘scent lineup.’”  Such lineups, the appellate court stated, “are different from tracking and narcotics detection.  The court further stated that “[t]hough we have not addressed the issue head on, there is some authority that such ‘scent lineups’ are not reliable and should be excluded.”  For the latter statement, a footnote cited a number of cases in which Deputy Pikett had provided canine evidence.  The court said that a “drug-dog alert to the scent of narcotics on money is widely accepted in Texas as circumstantial evidence of a nexus between the money and drugs.”

2015

California v.Oudin, No. G050682, 2015 WL 3645861 (Ct. App. June 12, 2015).  Judy Munson was found dead in her house in La Quinta by her housekeeper.  The death was ruled a homicide from blunt force trauma, with three skull impacts.  Scent samples were prepared by a police dog handler from a shirt the victim was wearing when murdered.    The handler, Corporal Garvin, put two sterile gauze pads on top of the shirt for several minutes, then put the gauze pads in separate sealed plastic bags.  Learning that a suspect named Gibbs would be at a San Bernardino County Sheriff’s substation in Needles for a supervised visit with his son, the detective in the case asked Garvin to bring his bloodhound, Inga, to the substation.  He did not give Garvin details about the scent trailing assignment.  When Garvin arrived with Inga, he presented one of the scent pads from Munson’s clothing to the dog and told her to “Find ‘em.”  “Inga circled the area, with her nose to the ground, and trailed towards where Gibbs's car was parked. She pulled Garvin to Gibbs's car, and sniffed the back bumper, driver's door and door handle.  Inga led Garvin across the parking lot and passed a sidewalk, but she signaled to Garvin that something had changed. Inga turned around and headed for an outdoor atrium area. Once they were in the atrium, Inga became very excited, jumped over a planter, and pulled Garvin to the doors of the building. Inga sat down in front of the closed doors and put her head back, which Garvin testified means the trail is here. Garvin opened the door, which lead to a waiting area where there were five people including, Gibbs, his son, a uniformed officer and two plain clothed officers. Inga became excited and sniffed every person in the waiting room. When she came to Gibbs, Inga circled, sat down in front of him, wagged her tail and put her paw on his arm. Garvin stated Inga's actions indicated to him the trail had ended. Gibbs was arrested.” A defense expert, Dr. Lawrence Myers, expressed concern about potential contamination and degradation of the scent, and also believed that there was a reasonably high probability to dog had been unintentionally cued by those present when the dog initially cast about for a scent outside the Needles substation.  The supervisor of the handler testified that she “could not think of a single instance when one of her bloodhounds had trailed the right scent to the wrong person.”  The judge instructed the jury that it could not convict solely on the canine evidence, but that that evidence could be corroborative.  The other evidence was substantial and the jury found Gibbs and an accomplice, the victim’s brother, guilty of first degree murder, which was affirmed by the appellate court. 

Robles v. Lewis, CV 13-7693-CW, 2015 U.S. Dist. LEXIS 164439 (C.D. Cal., Dec. 7, 2015).  Habeas petition denied.  Shirt taken from suspect while he was in lockup and used for scent lineup, along with the pants pocket of the murder victim (turned inside  out).  “In the scent lineup, four boxes were place in a specific formation, three of which contained scent pads from Hispanic men unconnected to the triple murder.  The fourth contained Hector’s scent.  A dog sniffed the pocket taken from the crime scene, which was placed in the middle of the box formation and alerted to the box containing Hector’s scent.” No discussion of scent identification in denial of habeas; combined evidence sufficient not to disturb conviction.

2016

Ex parte Robbins, 478 S.W.3d 678 (Ct. App. 2016).  The court cites Winfrey as having found dog-scent lineups to be unreliable "'junk' science," and discusses legislation introduced by Texas State Senator John Whitmire that amended Texas criminal procedures regarding habeas corpus petitions to allow courts to take into consideration that certain types of evidence leading to prior convictions may have been thrown into doubt by subsequent research. Among the evidence that might no longer hold up according to the Statement of Background and Purpose to the bill (SB 344 and HB 220) is a dog scent lineup.  The appellate court states that “the legislative history suggests the Legislature’s motivation was to provide a clear path to relief from convictions based on methodology and science that were already discredited—advancements in arson detection and dog-scent line-ups—and permit relief in future cases contesting convictions based on antiquated methodology and science. This motivation resulted in the passage of a bill that emphasized changing methodology and science, not an individual’s singular opinion.” This emphasis on the changing methodology and science is particularly apt to scent lineups, given that many cases involved poor methodologies and represented only the "singular opinion" of a handler. Article 11.073, as enacted in the Texas Code of Criminal Procedure and as amended in September 2015, does not specifically refer to scent lineups, so its relevance to that procedure remains in the legislative history.  The legislation and Ex parte Robbins indicate how much the procedure has fallen from favor in Texas.

Iowa v. Frederiksen, 2016 WL 4051655 (Ct. App. 2016).  On July 6, 2005, the body of a five-year-old girl was found by two kayakers at a bend in the Cedar River, where it had presumably been dropped from a boat and got caught on a branch.  The girl, E.M., had been reported missing by her mother, Noel Miller, on July 1, after she returned home from her night shift as a nursing assistant.  Her boyfriend, Casey Frederiksen, claimed surprise that the child was missing.  Frederiksen’s actions during the initial search for the child had made investigators suspicious that he might be involved.  Bruising on the child’s body indicated that she had been raped and murdered.  On July 8, the FBI brought two bloodhounds, Tinkerbelle and Lucy, which gave positive responses to the scent of both the child and Frederiksen on the property with access to the river where the body had been found.  Another bloodhound brought by a private handler had reacted to a fire pit area on the access property, which indicated to the handler that he had found a crime scene.  A cadaver dog also gave a positive indication to that location.  The Iowa appellate court, in response an argument on appeal that the evidence of the tracking dogs could not be used as “primary evidence in a case,” stated:  “.” Without taking a position on the point whether testimony concerning dog tracking may serve as the “primary” evidence in a case, we find the use of such evidence here contributed to the sufficiency of the State’s proof that Frederiksen took E.M. to the river to dump her body. The defense pointed out the weaknesses of the scent detection on cross-examination of the State’s witnesses, and the jury was free to assign the appropriate weight to that evidence.”  There was considerable other evidence and the appellate court affirmed Frekeriksen’s conviction for first-degree murder and first-degree sexual assault.

California v. Jackson, 1 Cal.5th 269 (2016). The California Supreme Court affirmed a conviction that involved two victims, both of whom were elderly, one of whom was raped and one of whom was determined to have been murdered though no body was ever found.  Trained dogs were used in seven procedures: (1) two trailings by one dog following the rape, one of which led to the back yard where the defendant was living, one of which went elsewhere; (2) a station identification with the same dog and handler later the same day as the trailings, with the dog stopping near the suspect but making no clear alert; (3) a canine search of the area where the suspect, who was on an antipsychotic medication and gave a confused account, believed he may have thrown the murder victim from his car; (4) a station identification (at a different police station) involving the same handler and dog as in (1) and (2) that apparently led to an alert; (5) a trailing test by an expert witness with a dog to determine if the presence of ninhydrin on the scenting item (ninhydrin reveals the presence of blood) might have had an effect on the scenting item used in (4); (6) additional trailing tests for the same reason (effect of ninhydrin on scenting item) by a different expert using three dogs; and (7) a station identification performed by the expert in (6) at yet another police station four years after the crimes that did not produce a clear identification.  In only one of the station identifications could there have arguably been said to have been a clear alert to the defendant, yet the witnesses were able to testify that ambiguous levels of interest were, in their opinion, sufficient to speculate that there had been some level of identification.  The trailings conducted the morning after the rape were also inconclusive, given that in one instance the dog led to the back yard of a house where the defendant was living, while the other trailing led elsewhere.  Despite numerous defects in the canine evidence, and despite the fact that most procedures produced nothing useful for the prosecution, this evidence was admitted and could have had an effect on the jury. 

Note: This blog was originally posted in 2010.  Because it has been updated many times since it is being reposted to make it available to those searching for current information on scent identification procedures.