Ruben Wardlaw, a member of the Pasadena Denver Lane Bloods, was outside an apartment building in Pasedena on July 13, 2007, when a white Chevy Impala passed by, turned around, and someone inside opened fire. Wardlaw was not injured, though bullets hit the pole behind which he took cover and some tore his clothing. Police arrived and took Wardlaw’s statement. Shell casings were found at the crime scene. Wardlaw was describing the shooter, the only person in the car, when the Impala returned and the officer saw the driver. The car was pursued by police onto the 210 East freeway where it did over 100 miles an hour. James Rogers Smith was arrested walking away from the car after parking it. He had car keys on him and a shell casing was found on the floor in front of the driver’s seat. Smith was a member of the Altadena Block Crips, a rival gang to the one Wardlaw belonged to.
A trucker was asleep on the side of the 210 East when he heard something hit his truck and police went by with their sirens on. The trucker found a gun, gun clip, and spring, and a bullet, which he gave to police. The police found a spent casing in the gun’s ejector port.
Ted Hamm, a civilian handler for the LA County Sheriff’s Department, took his dog, Bojangles, a Bluetick Coonhound, to the police station where Smith was being held. Using a scent transfer unit, Hamm transferred scent from the 9 mm handgun recovered on the freeway. (A footnote in the appellate decision notes that the record did not clearly state this was the gun from which scent was taken, but says it is “a reasonable inference.”) After smelling the pad, Bojangles went to the room where Smith was being held in the station and alerted to Smith.
The trial court admitted the identification evidence. Smith had contended the canine evidence failed to meet the requirements for admission under People v. Kelly, 17 Cal.3d 24 (1976) and Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The prosecutor cited People v. Salcido, No. GA052057 (Super.Ct. 2005), for the admission of dog scent identifications and for some reason the defense agreed to stipulate to the factual findings in Salcido. Salcido had held that an STU was generally accepted as reliable in the relevant scientific community, that there was an established protocol for cleaning and using an STU, that human scent was unique and can remain on objects for years, that pulling scent from an object by means of an STU does not degrade scent, and that dogs can be trained to discriminate between human scents. Hamm had also testified in Salcido, but used a dog named Knight in that case. The Salcido court determined that the certification procedures for Hamm and Knight met minimum standards.
The trial court in the present case adopted the findings in Salcido and found that the requirements of Kelly/Frye had been met, though the court required that a foundation be established for Bojangles. Defense counsel renewed his objection, describing the case as a scent identification case. The Pasadena Police Department had, after all, asked Hamm "to do a suspect identification, meaning matching scent from an item to a suspect." The prosecution argued the case was a trailing case, but the trial court said it was both.
Hamm testified as to the training of Bojangles and as to his record in criminal investigations. He testified that the dog had worked about 300 criminal investigations and had been proven correct in 30 cases, and never been proven wrong. The appellate court did not refer to any records being produced in the trial court, or mention whether defense counsel asked to review them.
In describing Hamm’s procedure in greater detail, the appellate court stated that Hamm had asked that the suspect be taken to a part of the police station where he had not been before. After preparing the scent pad, Hamm took Bojangles to the third floor, took out the scent pad and put it before Bojangles, giving the command, “Find ‘em.” Bojangles walked through the building and found Smith within a minute and a half. It is not stated who was with Smith in the room where he was found, if anyone, so it seems that there was no effort to produce a human scent lineup.
The appellate court discussed California’s acceptance of tracking and trailing evidence, as well as its acceptance of scent identification lineups, including transferring scent by means of STUs. In People v. Malgren, 139 Cal.App.3d 234 (1983), a California appellate court had said that dog tracking need not be subjected to a Kelly/Frye hearing.
The Smith court also stated that a prior California case, People v. Mitchell, 110 Cal.App.4th 772, 2 Cal.Rptr.3d 49 (2003), that Kelly/Frye did not apply to scent identification evidence. This was true of the trial court, but the appellate court in Mitchell was somewhat ambivalent. In one sentence it had concluded that “Kelly should have been applied to this evidence,” referring to the scent identification evidence. Then the appellate court had seemed to pull back from this conclusion, stating:
“We further conclude that, even if Kelly were not deemed to apply to scent identification evidence in general, a greater foundation than the one provided here is needed for its admission. In tracking and trailing, there is a history of canine performance which provides the basis for the fifth Malgren element--that this type of evidence will be admitted if it is shown that the dog was put on a fresh trail. For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person's odor, beyond the mere experiences of one trainer and one dog.”
Though finding the evidence was admitted in error, the Mitchell court had found this error harmless because it was “not reasonably probable Mitchell would have been acquitted absent admission of scent identification lineup evidence.”
The Smith court distinguished Mitchell because the trial court in Smith had held a Kelly hearing, “albeit a somewhat unusual one that relied on the extensive findings made in another case, Salcido.” This raises the issue of how much judicial notice can be taken of the findings of prior courts in scent identification cases. Salcido had involved testimony of some of the biggest names in canine forensics, including Kenneth Furton, Brian Eckenrode, Rex Stockham, and Lawrence Myers. The appellate court in Smith determined that it did not need to review the adequacy of the lower court’s hearing, however, because, as in Mitchell, it found any insufficiency harmless because “it is not reasonably probably Smith would have been acquitted absent admission of the scent identification evidence.”
In speaking at the Tufts Veterinary School in Massachusetts two weeks ago, many of the handlers in the audience confirmed something I've been hearing for a while, namely that defense attorneys are getting more aggressive in their cross-examination of handlers. It would seem that evidence of the sort admitted here is likely to be more effectively challenged in the future. This was a type of station identification. See Hinton v. State, 175 Miss. 308, 166 So. 762 (1936), for a description of an identification of this type. There were no foils, and no lineup is described, certainly nothing at the level described by Schoon or Jezierski. The trail was not from the scene of the crime but apparently from one part of a station to another. Or was this closer to a casting where the dog was looking for a trail after having been scented? There was no discussion of the path Smith took in reaching the room where the dog found him. It is not explained why the dog was taken to the third floor before the trailing or search began, though Hamm had asked that the suspect be taken to a portion of the building where he had not previously been. Was the dog put on the trail at a point where the suspect was certain or likely to have been, generally a foundational requirement for tracking? Was Smith clearly identifiable as a suspect in the station? He was not in uniform and may well have been easily distinguishable from most everyone else near him. Cueing might be possible in such circumstances. What sort of identifications had the dog done in addition to its training activities? Why was there no expert retained to challenge the police dog handler? None of these issues, or many others in canine identification forensics, were apparently raised by defense counsel or anyone else, but probably should have been.
Were other kinds of scent matches considered? For instance, shell casings were found at the crime scene. A scent match procedure could have been used to match scent on the casings to the scent of the car seat, or to Smith’s clothing, and could have gone to the issue of whether Smith himself loaded the handgun. (Fingerprints were not recovered from the gun.) Other ballistics (toolmarks) had connected the shell casing found in Smith’s car to casings found at the crime scene. It must be acknowledged that there were was a great deal of evidence, some provided by Smith himself, and it appears highly unlikely that a jury would have reached a different verdict even without the canine evidence.
My concern is that if scent identification work continues to avoid reversal only as harmless error, it may eventually be seen as superfluous and not even performed. Performing it well will become even more infrequent. Part of the reason the scent evidence here was not solid may have been a lack of funding (though procedures were not forensically ideal in any case). Police authorities, like most government agencies, are always looking for places to cut expenses. Labor costs for dog handlers have already taken a considerable toll, and frequent failures of judicial admissibility are bound to have consequences as well.
People v. Smith, 2011 WL 1350762 (Ct. App. 2011). Station identifications will be discussed in detail in Police and Military Dogs. Thanks to Gene Papet for comments and corrections.