If Attacking a Drug Dog’s Reliability Requires Showing Its Certification is a Sham, What Can the Defense Find Out About the Certifying Organization?

In order to better serve the law enforcement community, I’ll be posting more detailed analysis on some cases on a new website, lawenforcementk9.com. A recent case analyzed by me and L.E. Papet on that site concerns a traffic stop and sniff in Oklahoma. A drug dog alerted to the car, and a subsequent search discovered a revolver and $42,000 in cash, but no drugs. The defendants attacked the dog’s reliability based on its field records, but the Tenth Circuit concluded that the judicial task was to assess the reliability of the credentialing organization, not individual dogs. If the defense could show that the credentialing organization was a sham, then the team’s certification was not proof of reliability.

This raises the question of how much discovery could be available to a defendant regarding the certifying organization. Could the defendant introduce evidence about such “old boy network” practices as a single examiner, licensed by two or three certification organizations, issuing certifications for each of those organizations based on a single test? Court decisions often stack up the number of certifications given to a canine team without reviewing how much testing time was really involved. How is the defendant going to obtain this information? Most certification organizations are not part of government, and many will be out of state. The defense will generally have little trouble obtaining the certification records of the team involved in the case before it, probably from the handler or his department, but showing that the certifying organization is a sham might require a much broader inquiry into the practices of the organization.

If I had to guess, I suspect the kind of sham the court had in mind would be one where a handler sent in some money and got a certification in the mail, without ever showing up for a test. Unfortunately, this kind of "certification" is becoming more common with service dogs for people looking to travel with pets or deduct them as medical expenses. Law enforcement canine certification is not known for such egregious practices, but the system is sufficiently complicated that, if certification becomes the basis of dog's reliability in a narcotics prosecution, defense counsel would be remiss not to investigate what the alerting dog's certifications really amount to.

We discuss these issues and others arising from U.S. v. Kitchell, 2011 WL 345082 (10th Cir. 2011), in “Exploring Practices of Police Canine Certification Organizations to Investigate a Dog’s Reliability? Tenth Circuit Raises the Possibility.”