Friday, September 30, 2011

Relief Areas for Dogs at Airports: Department of Transportation Proposes Rules, Solicits Advice on Open Issues

Additional Note: The rules on relief areas at airports were finalized on August 5, 2015, and will be the subject of a forthcoming blog. 

Airlines are already covered by a requirement to provide relief areas for service animals, but since the relief areas have to be at terminals, and some airport operators were not being fully cooperative with the airlines, the Department of Transportation has proposed rules that will apply to the terminal operators as well. The rules will apply to most commercial airports, though some of the smallest would not be covered. These smaller facilities, often not much more than glorified hangars, will generally have areas where dogs can take care of their needs.

Those who travel with service animals, and probably those who travel with search and rescue dogs as well as small dogs that come under weight limits for carry-on transport, should take a look at the rules since the Department is seeking advice on issues such as the number of relief areas, whether they have to be located inside terminals, and whether airports should have personnel available to help people, such as blind people and people with mobility impairments, to and from service animal relief areas.

The Department is tentatively recommending that airports be required to provide at least one relief area for each terminal, but concedes that this may not be enough in a large airport where getting to a relief area might result in a person with a service dog missing a flight if the relief area takes the passenger far enough from the route he or she and the dog must take to get to the next flight. Given the hassle of getting past security in a modern airport, there is no question that an adequate relief area should almost always be provided inside of security checkpoints (inside the "sterile area" in Transportation Security Administration terminology).

Also, given the complexity of many airports, it would be advisable to require airport operators to provide personnel that can take individuals with certain disabilities to and from relief areas. This might include blind individuals, individuals with mobility impairments, and those with certain cognitive conditions. It may be possible to do this on some case-by-case basis. Thanks to the Metropolitan Washington Airports Authority for providing the picture of the pet relief area at Dulles International Airport.

Requirement for Carriers

In 2008, the Department had amended 14 CFR Part 382.51, Nondiscrimination on the Basis of Disability in Air Travel, to include a provision stating:

“In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.” The “you” here were carriers, and the provision applied to “all terminal facilities you own, lease, or control at a U.S. airport.”

Since “you” did not include the airports themselves, some carriers have been asking the Department for leverage to get cooperation from the airports themselves. The 2011 release provides the following background:

“Part 382 [the provision applying to carriers, not airports directly] does not provide specific directives regarding the design, number, or location of service animal relief areas an airport should have; it simply requires carriers to provide service animal relief areas in cooperation with the airports and in consultation with service animal training organizations concerning the design of service animal relief areas. However, in a Frequently Asked Questions document issued by the Department’s Aviation Enforcement Office on May 13, 2009, examples of factors airlines and airports should consider in designating and constructing areas for service animal relief at U.S. airports are provided. Factors to consider in establishing relief areas include the size and surface material of the area, maintenance, and distance to relief area which could vary based on the size and configuration of the airport. The Department seeks comment about whether it should adopt requirements regarding the design of service animal relief areas and what, if any, provisions the rule should include concerning the dimensions, materials used, and maintenance for relief areas.”

The FAQs from the Aviation Enforcement Office will be discussed below.

Airports Covered

The rules the Department is now proposing would require any airport with 10,000 or more “enplanements,” i.e., passengers boarding planes, to provide service animal relief areas. This would apply to commercial service airports that account for 96% of enplanements annually, a total of about 368 airports. Only very small airports with limited passenger traffic would not be covered.

Number and Placement of Relief Areas

The preamble to the 2011 proposed rules continues:

“We are tentatively proposing a minimum of one service animal relief area for each terminal in an airport. The Department is aware that requiring only one service animal relief area for each terminal in an airport may result in individuals with disabilities missing flights when trying to reach service animal relief areas located outside the sterile area of an airport, especially in larger airports. For this reason, and despite our tentative recommendation of one relief area for each terminal in an airport, the Department seeks comment on what would be an appropriate number of service animal relief areas in an airport. In addition to seeking public comment on how many service animal relief areas should be required at an airport or a terminal, the Department would like to know how that number should be determined. For example, should the number be determined by the size or configuration of the airport (e.g., the number, location and design of terminals and concourses) and/or the amount of time it would take for an individual with a disability to reach a service animal relief area from any gate within the airport? Or should DOT establish a performance requirement that a passenger arriving at any gate with his or her service animal be able to reach a relief area in 10, 20 or some other number of minutes?"

It is my opinion that a performance requirement of about 10 minutes should be imposed. If the relief area could be placed in a room off each concourse, or off a connecting hallway, this would often involve minimal delay for a passenger changing planes.

As to the location of relief areas relative to security checkpoints, the preamble states:

“The Department also seeks comment on the placement of service animal relief areas, particularly whether service animal relief areas should be located inside or outside the sterile area of an airport. It could be important to have relief areas both inside and outside the sterile area of an airport to ensure that individuals with service animals have access to such areas when traveling. For example, an individual traveling with a service animal could arrive at Gate C3 and have an hour to make a connection to a flight at Gate G17. If the individual must leave the sterile area to find a service animal relief area, travel to and from that area, and then go back through security screening, the individual could have difficulty in making the connecting flight. At the same time, we understand that some airports have expressed security and logistical concerns about the placement of service animal relief areas inside the sterile area of an airport. The Department also recognizes that the Transportation Security Administration (TSA) in May 2011 revised its guidelines "Recommended Security Guidelines for Airport Planning, Design and Construction," to make clear that airports may provide Service Animal Relief Areas in sterile areas of the airport, or may provide escorted access to non-designated outdoor areas for the purpose of service animal relief. The Department also recognizes that coordination with the TSA via each airport’s site-specific Airport Security Program would need to occur if service animal relief areas are to be placed inside the sterile area. Consequently, the Department seeks comment on where airport service animal relief areas should be located to ensure that the time and distance to access the service animal relief areas do not create barriers for passengers with disabilities.”

It is not clear why putting a service animal relief area inside a sterile area would cause safety concerns. It would seem that taking a service dog outside of the sterile area would be a much greater risk. The passenger, whatever he is carrying, the dog, and in some cases, an accompanying airport official would all have to be rescreened to some degree if they left the secure areas of the airport. Also, if relief areas are not located inside the terminals, one person who uses a dog for stability has advised me that it often takes upwards of 45 minutes to get to a relief area and back. That is too much.

It would also be a good idea to put a relief area in the baggage claim area as that area often serves the entire airport and passengers arriving with service animals can get them to such an area while they are waiting for luggage.

Assistance for Service Animal Users to Get to Relief Areas

On the question of assistance by airport personnel, the preamble states:

“Finally, the Department has been made aware that some individuals with disabilities, especially, but not only, individuals who are blind or visually impaired, are experiencing difficulty in locating service animal relief areas at certain airports. Under part 382, passengers who request that a carrier provide them with assistance to an animal relief area should be advised by the carrier of the location of the animal relief area. Additionally, if requested, it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area."

It is my opinion that human assistance should be required in certain circumstances. Blind passengers with guide dogs may be given directions in braille but should not be expected to ask other people for help if they get lost in a complicated airport. Such assistance may also be appropriate for individuals with mobility impairment or with certain cognitive disorders.

What Should Maps, Diagrams, and Brochures Include about Relief Areas?

The Department wants to know if airports should be required "to specify the location of service animal relief areas on airport Web sites, maps and/or diagrams of the airport, including whether the relief area is located inside or outside a sterile area. We also seek comment on whether airports should be required to provide signage to assist individuals with disabilities in locating service animal relief areas.”

This information should be required, but it is difficult to imagine that airports will have any resistance to such requirements. Airport operators will want to seem dog-friendly, and it must be realized that relief areas will also be used by passengers flying with small dogs, as well as occasionally search-and-rescue dogs that may be allowed in cabins. Also, airports will not want service animal users constantly asking personnel and other airport users where a relief area is located.

Should Requirements for Airports and Airlines Be Uniform?

The Department asks whether the separate requirements for air carriers and airports should be made identical:

“To the extent that the Department issues a final rule with requirements for airports to establish service animal relief areas that are more detailed than the requirements for U.S. and foreign airports that exist in part 382, the Department believes that it is beneficial to have the same requirements apply to U.S. and Foreign airlines. As such, we are soliciting comment on whether any requirement that applies to U.S. airports should also be applied to U.S. and foreign carriers. For example, if the Department creates a requirement that airports must establish service animal relief areas inside the sterile area of an airport, should such a requirement apply to U.S. and foreign air carriers in part 382?”

The rules should probably be made identical so that when there is some friction between a carrier and an airport as to implementation, the Department can assure that both are being tasked with the same goals.

Other Changes in the Proposed Rules

The Department has also made global changes to the regulations of 49 CFR Part 27, such that “nonhandicapped” is revised to “nondisabled,” “handicapped person” is now “individual with a disability,” and “handicapped,” when not followed by “person,” is changed to “disabled.”

Comments on the issues raised are sought by November 28, 2011, but the release states that late-filed comments “will be considered to the extent practicable.” The proposed service animal relief regulation is reproduced in the Appendix below.

Frequently Asked Questions

The FAQs referred to in the preamble that were issued on May 13, 2009, are entitled "Answers to Frequently Asked Questions Concerning Air Travel of People with Disabilities under the Amended Air Carrier Access Regulations."

Under the question, where should service animal relief areas be established, The DOT Office of Enforcement and Proceedings states:

"Answer: While not specifically required by our rule, carriers and airports may wish to consider the benefits of establishing animal relief areas both inside and outside the secure area (e.g., to accommodate passengers with short connection times, to minimize time needed for escort service, passenger convenience). In doing so, carriers should consult with service animal training organizations. In establishing animal relief areas inside the secure area, carriers and airports should coordinate closely with the Transportation Security Administration (TSA) and the Customs and Border Protection (CBP) offices serving the airport to ensure that the animal relief area can be used consistent with TSA and CBP procedures."

As to who is responsible for installing and maintaining relief areas, DOT says that this should be done cooperatively by both airlines and the airport operator “in consultation with local service animal training organization(s),” and lists the American Dog Trainers Network and Assistance Dogs International. In lieu of consulting with a local service animal training organization, the FAQs state that a carrier may consult with its disability advisory board members.

If DOT’s Aviation Enforcement Office receives a complaint about a relief area not being available or maintained, the carrier would ultimately be responsible. With the revised rule, DOT effectively makes both authorities jointly responsible.

The FAQs specifically require that if a service animal user requests assistance in finding the service animal relief area, “it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area.” If the presently proposed rules are made final, this responsibility would also be shared with the airport operator.

The FAQs state that a relief area should be designated solely as such to “keep the area free of hazards and distractions,” and to help prevent the spread of waste contamination. Also, the site should be adequate “for larger dogs to use” and “equipped with adequate lighting to enhance usability and security.” Gravel is recommended because it “can be disinfected adequately to reduce the chance of germs being spread between animals or being carried outside of the relief area.”

Areas should be fenced so that dogs can get a little exercise and smell the area before they relieve themselves. Perhaps, as is done by some cruise lines, "dog litter" could be used.

Transportation Security Guidelines for Airport Planning

The Transportation Security Administration’s "Recommended Security Guidelines for Airport Planning, Design and Construction," revised May 2011, observe that:

“Service animal relief areas will often include grassy space, drinking water, cleaning capabilities such as water hoses and disposal containers, and appropriate drainage. Generally, maintenance of grassy areas is only practical on the public landside, not airside, but artificial materials may be used for service relief areas located on the sterile side.”

TSA seems to feel that if airports do not have space for a limited service animal relief area on the sterile side, they “may provide travelers with escorted access to non-designated outdoor areas for the purpose of service animal relief.” In the next paragraph, the TSA guidelines mention that the escort should be “badged.”

The Transportation Security Administration was formerly part of the Department of Transportation, but was transferred to Homeland Security in 2003. Therefore, where security issues may be involved, such as where a relief area is outside of security checkpoints, TSA input will be required.

Conclusion

It is likely that this regulation will be fast-tracked, so people who travel with dogs in the cabin should make their opinions known by the close of the comment deadline on November 28, 2011. Although the proposal may be somewhat redundant in that a service animal relief area already applies to carriers, some carriers have only limited or temporary space in airports, and may not have much influence with airport operators. Therefore, the regulation is important and issues such as the number, placement, and size of relief areas should be specified in the final rules. Also, the availability of assistance will be important for some individuals traveling with service animals, who should now make their needs known to the Department of Transportation, particularly since it seems to be willing to listen.

In sum, users of service animals, and persons who travel with dogs generally, are being given the opportunity to make comments on:

1. Where relief areas should be located, i.e., inside terminals, inside and outside terminals, within a certain distance of a main concourse, and/or reachable within a certain time frame, such as 10 or 20 minutes. Travelers who have had problems with specific airports might discuss those airports, since this may provide the Department with useful data that will apply to other airports.

2. Whether assistance should be provided by airport personnel. Again, individual experiences will help the Department develop a rule that will be helpful to all service dog handlers who might benefit from assistance.

3. What sorts of maps and other information should be provided, what should be placed on airport websites, whether carrier websites should provide the same data or link to airport websites, what signage should be inside airports, and whether airport personnel should generally be informed and therefore able to help passengers find relief areas. Here also individual experiences could be very helpful.

4. Whether airline and airport rules should be identical. In my opinion, this should probably be the case so that situations do not fall through the cracks.

There are many airports with many different issues, and it is quite possible that the Department has not thought of every issue that should be considered in the rules. Since the Department seems to be making a sincere effort to gather additional information from users, and since these rules will affect a great many passengers who travel with dogs, this is one case where I believe comments are important.

Thanks to Patty Dobbs Gross, Joan Esnayra, Anne Wicklund, Caitlin Moore, and Matt Kincaid for help on this blog.

Appendix: Proposed Regulation


The proposed rule regarding service animal relief areas reads as follows:

49 CFR 27.72 Boarding Assistance for Aircraft

(h) Service animal relief areas. Each airport with 10,000 or more annual enplanements shall consult with service animal training organization(s) and cooperate with airlines that own, lease, or control terminal facilities at that airport to provide at least one animal relief area in each airport terminal for service animals that accompany passengers departing, connecting, or arriving at the airport. To the extent that airports have established animal relief areas prior to the effective date of this subsection and have not consulted with service animal training organization(s), airports shall consult with service animal training organization(s) regarding the sufficiency of all existing animal relief areas.

Department of Transportation, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (U.S. Airports), Docket No. DOT-OST-2011-0182, 76 Fed. Reg. 60426 (September 29, 2011).

Friday, September 23, 2011

Do Dogs Display Guilt? Does the Smell of Lavender Relax Them? Curious Findings from a Recent Ethology Conference

Ethology was once the attempt to study an animal's behavior free of human coordinates. At Berkeley, and then at Tower Island in the Galapagos, I tested the ability of intertidal crabs to navigate by the sun and the moon. It was considered important at the time to eliminate human measures and even human terms from a study of an animal's behavior. "Begin with the fact that the animal has survived. It is here. It is successful. Saying it was intelligent is meaningless. All animals are intelligent enough if they are here." Such were the words, or how I remember them, of my senior thesis adviser, a visiting postdoctoral fellow from Oxford who was a student of Niko Tinbergen and is now one of the preeminent evolutionary biologists in the world.

In those days the great lights of ethology were Konrad Lorenz, Niko Tinbergen, and Karl von Frisch, all of whom focused primarily on the behavior of wild animals (though Lorenz, in Man Meets Dog, had considered the behavior of domestic canines). These three shared the Nobel Prize in Physiology or Medicine in 1973.

The study of domesticated animals was not held in high esteem by many biologists then. It was difficult enough to remove human measures from the study of an animal in the wild, but even more difficult when an animal had accepted a relationship with humans, had in a sense accepted human measures into its very being. Yet domestic animals have also survived. In fact they are generally more successful than their wild cousins. Cattle are abundant, but bison are preserved in only a few spaces and most herds have interbred to one degree or another with domestic cattle. Dogs live in the tens of millions, while wolves only exist in many areas because of human protection, or even because humans have reintroduced them into an environment.

"What can you learn from studying an animal in a cage?" I remember an ichthyologist with an ethological bent asking rhetorically. (This from a scientist who did not hesitate to include observations on fish in tanks in his papers.) This reluctance to study domestic animal behavior did not continue as a ban, but rather spawned a new branch of ethology, applied ethology or applied animal behavior. The complexity of removing human coordinates from the study of an animal adapted to some of those coordinates may remain a philosophical issue, but a recent conference convinces me that some things can indeed be learned from studying animals in cages.

The Proceedings of the 45th Congress of the International Society for Applied Ethology (ISAE) have been posted on the website of the U.S. Department of Agriculture. The conference took place this year in Indianapolis from July 31 to August 4. The title of the gathering was Scientific Evaluation of Behavior, Welfare and Enrichment, and a number of the abstracts reproduced in the publication concern dogs. Among issues considered by scientists were whether female dogs prefer to pee on Astroturf as opposed to concrete; whether owners can really tell if their dogs display guilt when greeting them because the dogs know they have done something wrong in the owners’ absence; behavioral differences in shelters between dogs relinquished for the first time and those transferred from other shelters; physiological effects of owner visits to dogs in intensive care units; euthanasia practices in Canada; whether programs where senior citizens walk shelter dogs reduce euthanasia rates of participating dogs; and differences in forepaw preferences in foxes by sex (which turn out to be the opposite of what is found in dogs). Some of the abstracts are described briefly below, but the full research papers will be appearing in scientific journals throughout the year.

To wee or not to wee: hospitalized female canines (Canis familiaris) preferred Astroturf to concrete in a two-way simultaneous presentation choice test. Sally Teer and Louise Buckley. “It is concluded that Astroturf shows promise as an alternative substrate for urination. However, this preference needs additional investigation before fake grass is recommended as an environmental modification.”

Do you think I ate it? Behavioral assessment and owner perceptions of ‘guilty’ behavior in dogs. Julie Hecht and Marta Gacsi. “The experiment used pet dogs … and established the social rule that food on a table was for humans. Dogs had the opportunity to eat after the humans left the room. Owners returned, were unable to see the table and therefore observed dog greeting behavior to decide if the dog ate. Behavior analysis revealed no difference in display of ABs [associated behaviors] during greeting between obedient and disobedient dogs….” The report said that some owners knew their dogs well enough to guess whether they had eaten the food, but owners who only looked at the dog’s behavior on greeting were no better than chance in determining whether the dog had eaten the food on the table.

Assessing quality of life in kenneled dogs. Jenna Kiddie, Daniel Mills, William Hayes, Rachel Neville, David Morton, Dirk Pfeiffer, and Lisa Collins. “Dogs that were transferred from another kennel were easier to handle; those relinquished for the first time avoided handling…. Transferred dogs tended to eat all of their food; dogs relinquished for the first time varied in the amount they ate…. There was a trend for first time relinquished dogs to spend longer walking than transferred or returned dogs. There was a trend for transferred dogs to have higher oxidative stress than first time relinquished dogs…..”

The development of a behavior assessment to identify ‘amicable’ dogs. Tammie King, Linda Marston, and Pauleen Bennett. “The Monash Canine Amicability Assessment (MCAA) was developed using a modified version of the Ainsworth’s Strange Situation Test, during which the dog is explosed to an unfamiliar environment and person in the presence and then absence of the dog’s owner. The protocol was applied to 200 pet dogs…. High amicability ratings … were associated with the dog spending less time near the owner’s chair in the presence of the stranger..., more time near the stranger… and more time in contact with the stranger when the owner was absent…. Stranger Fear was associated with less contact … and less tail wagging … with the stranger when interaction with the dog was attempted, as well as low body posture … throughout the assessment.”

Owner visitation: clinical effects on dogs hospitalized in an intensive care unit. Rebecca A. Johnson, F. Anthony Mann, Charlotte A. McKenney, and Sandra McCune. “The owners were allowed to visit as long as they wished with their dog. The observed visits lasted from 10-99 minutes…. The dogs’ HR [heart rate] increased from baseline (Mean = 100 beats per minute) to 5 minutes after the visit began (Mean = 110…), and increased again at 5 minutes before the owner left….” It seems the dogs knew when their owners were getting ready to leave (my observation). “Dogs’ pain scores decreased from baseline to 5 minutes into the visit….”

Euthanasia practice in Canadian animal shelters. Niamh Caffrey, Aboubakar Mounchili, Sandra Mcconkey, and Michael Cockram. Nineteen percent of dogs and 40% of cats that entered a shelter were euthanized…. Sodium pentobarbital injection (a controlled drug) was the only method of euthanasia used by 61 and 53% of establishments euthanizing dogs and cats, respectively. Pre-medication was used by 58% and 48% of establishments that used sodium pentobarbital to euthanize dogs and cats, respectively.”

Shelter dog behavior improvement: dog walking as enrichment. Charlotte a. McKenney, Rebecca A. Johnson, and Sandra A. McCune. “We hypothesized that shelter dogs participating in a daily dog walking program involving elderly citizens, would have better behavior, higher adoption rates, and decreased euthanasia rates than dogs in a control group not in the walking program.” The results confirmed this hypothesis.

Relaxing effect of four types of aromatic odors in dogs. Yukari Kuwahara, Takayuki Horii, Katsuji Uetake, Yutaka Iida, and Toshio Tanaka. “This study explored the effect of four types of aromatic odors (chamomile, peppermint, rosemary and lavender) on behavior and physiology of 12 na├»ve dogs caged in two experiment institutions…. These results indicate that four types of aromatic odors used in this study have some positive effects, and particularly rosemary and lavender appear beneficial in their relaxing effect on dogs.”

Behavioral assessment in dogs during animal-assisted interventions (MTI). Lisa Maria Glenk, Birgit Ursula Stetina, Berthold Kepplinger, and Halina Baran. “Seven healthy dogs of different sex, age and breed were video-taped during 10-12 consecutive sessions that were carried out weekly in different institutions (inpatient drug withdrawal, prison, school).” The results were not summarized but apparently presented at the conference.

Behavioral and physiological evaluation of welfare in shelter dogs in two different forms of confinement. Paolo Dalla Villa, Shanis Barnard, Elisa Di Fede, Michele Podaliri, Carlo Siracusa, and James A. Serpell. “In Italy, the National Law (281/1991) forbids the euthanasia of shelter dogs if not dangerous or seriously suffering; this leads inevitably to overcrowded facilities where welfare becomes a major issue.” The study compared keeping 5 to 8 dogs in outdoor enclosures against keeping dogs in pairs in smaller enclosures, but results were not included in the abstract.

Difference in pawedness between male and female blue foxes (Vulpes lagopus). Jaakko Mononen, Sanna Tikka, and Hannu T. Korhonen. “Several studies have shown bias to the right in the female and to the left in the male dogs’ (Canis familiaris) forepaw use, but in V. lagopus, ie. another canid species, the situation seems to be rather the opposite. This finding suggests a need for wariness in making any generalizations on the effects of sex on behavioral laterality.”

Do these studies attempt to look at animals free of human coordinates? The Astroturf study is really about dogs in confinement, as is the study about dogs relinquished to shelters and that about visiting dogs in intensive care, as well as the research on seniors walking dogs. The Canadian euthanasia statistics are not behavioral at all. The research finding that owners cannot really see guilt in dogs is more a study of human perceptions than of canine behavior. The use of aroma therapy on dogs involves studying their reactions to stimuli more artificial than dogs often encounter. Only the study of forepaw preferences would have been acceptable as ethology at one time, in my opinion.

On the other hand, perhaps empathy is needed here. The horrors of pounds are made more vivid by the study of the physiological reactions of dogs on being relinquished into a system that will end in death for many of them. It is as if our guilt about mass euthanasia is breaking through the unconscious in applied ethology. I realize that the emphasis on "welfare and enrichment" in this particular conference might have created a bias in the presentations selected, but it seems to me that the field, when it comes to dogs, has almost become an extended study of human guilt.

Scientists may not be able to resolve the existence of god, but they know that sodium pentobarbital is used in more places than Canada.

Thanks to Barfbagger, English Wikipedia, and Wikimedia Commons for the picture of Grapsus grapsus, an intertidal crab found in the Galapagos and along the central Pacific coast of the Americas.

Saturday, September 17, 2011

Creating A Model Law for Dog Parks

Last month Fran Breitkopf and I posted a blog, Dog Park Law 101, in which we discussed statutes and cases that concern dog parks ("dog runs" in some older laws). We noticed how uncommon the phrase is in both contexts.

We contacted Professor David Favre of the Michigan State University College of Law on the issue. He suggested we consider drafting a model law concerning dog parks and we began a systematic review of relevant codes. Our analysis, which has culminated in model-law language, appears on the Animal Legal and Historical Center of the law school.

Anyone who has drafted or studied model laws generally attempts to provide a single statutory system, that is, to produce a single Act. Some cross-reference clean-up may be necessary so that the proposed legislation can fit within the general statutory system, but that should be kept to what is essential for this purpose. In drafting a model dog park law, Fran and I found that we could not easily restrict ourselves in this way. Many states have different laws that might have to be modified to allow for the possibility of dog parks. These include leash laws, dogs-running-at-large statutes, dangerous and vicious dog statutes, dog bite statutes, and abandonment laws. Depending on the state’s statutory system, it may also be advisable to revise general recreation and park laws, animal control authority provisions, dog pound provisions, on and on. We could find no one-size-fits-all solution for how a state should alter its statutory structure to allow for dog parks.

It gets more complicated. Many states delegate dog regulation to county and municipal legislators, and what may have to be altered at the state level in one state may require the attention of another set of legislative bodies in another state. Hopefully we have not made the problem insurmountable for those legislators, of whatever level, who wish to address this issue.

Of course, we have also included suggested rules for dog parks, but that was the easy part. There is substantial uniformity on those rules around the country, though factors such as shade, streams, nearby beaches or wells, proximity to schools, and other matters make for variation from place to place, so even here a one-size-fits-all approach was not completely possible. The picture, taken by Kingsbury Parker, shows Seattle's dog park rules. (Double click on the image for a larger display.)

The fact that in many states dog parks are not considered in general dog-related laws leaves these areas in something of a legal no-man's land. Police and animal control authorities may not want to try to enforce certain laws, such as dangerous dog laws, in a confined space where dogs are essentially violating leash laws and other laws to begin with, and where the authorities may correctly feel that they are being summoned to resolve disputes between pet owners who have different philosophies about what level of aggression should be permissible in such a space. Adopting laws that put dog parks in a defined legal context will provide police and control authorities with some parameters as to how they may approach and resolve situations that arise in dog parks.

We’re going to continue to follow this issue, so we ask dog park users to please give us your thoughts, as many already have. Fran can be reached at brightrose22@yahoo.com, and I can be reached at jensminger@msn.com.

Thursday, September 15, 2011

"Inquirers" Were Little More Than Guests, Retreat Was Little More Than Spa/Hotel, Yet Church Group Battles to Exclude Guide Dog

Optimum Health Institute is a non-profit, religious organization affiliated with the Free Sacred Trinity Church, which describes itself as a “non-denominational church rooted in early Judeo-Christian doctrine.” OHI invites people “from all religious traditions” to attend its “spiritual retreat” in Lemon Grove, California, near San Diego, where they will participate in “prayer circles” and perhaps have their lives transformed by “miraculous healings on all levels.”

Those coming to Lemon Grove reside in guest rooms, but Robert Nees, Ecclesiastical Superior of the Free Sacred Trinity Church, says that OHI is not a hotel. Rather, “the guest rooms are intended to enhance the monastic experience of the OHI’s holistic health.” There is, however, a focus on “diet, food preparation, and ritual purification.” OHI’s “ultimate goal is to bring the participants to an understanding of their purpose in life and to get them to affirm or reaffirm the reality of God.” OHI claims not to need to evangelize because “all paths eventually lead to Jesus Christ as Lord and Savior.”

Guests, Inquirers, Adherents

All first time guests are “inquirers.” If they return, they become “adherents.” There are about 22,000 adherents of Free Sacred Trinity Church. OHI claims to have helped over 100,000 people, most of whom were apparently first-time visitors, i.e., inquirers in the Church's terminology.

Nancy Stevens attended a program in 2007 and says she was always called a guest, not an adherent. Another individual who visited Lemon Grove about the same time submitted a declaration to the same effect. In 2009, Stevens telephoned OHI to ask about its holistic health program because she was about to undergo cancer surgery. She explained that she used a guide dog but was told she could not bring the dog. She said she would attend for one week with a cane. OHI apparently became concerned and said that Stevens would have to bring someone with her because OHI was worried that she might fall down stairs or put her hand in a juicing machine.

“Plaintiff told OHI representatives that ‘she did not need anyone's assistance, that she was independent and able to care for herself’; ‘she has lived independently for over 20 years’; ‘she has traveled all over the world as part of a paralympic ski team and as the world champion blind woman triathlete’; ‘she travels independently wherever she goes, utilizing public transportation and her excellent mobility skills’; and ‘she has skillfully managed all of her household appliances and food preparation utensils, including knifes, food processors and blenders.’”

OHI held fast to its requirement that Stevens bring someone, but agreed to charge half-price for the companion. As to the guide dog, Nees stated:

“The grounds of OHI are sacred. In order to maintain a pure environment for healing and worship, OHI cannot—and does not—welcome animals.... [I]n the eyes of the Church, based upon the teachings of the Old Testament, OHI's grounds are sacred but animals are not.... Allowing animals into the grounds is antithetical to the promotion of a safe, healing environment at the Institute, particularly for people who have animal phobias or allergies....”

Stevens Files Suit

Stevens sued, seeking monetary damages of $75,000. She also moved “for an order enjoining Defendants from preventing or causing the prevention of a guide dog, signal dog, or service dog from carrying out its functions in assisting a disabled person who attends OHI's detoxification program or who visits OHI's health center in Lemon Grove, California.”

OHI moved for summary judgment, arguing that it was not a business establishment or public accommodation, but rather a religious organization to which disabilities laws did not apply.

The Unruh Civil Rights Act requires that all “persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The act allows for triple damages and attorney’s fees, as well as injunctive relief. The California Disabled Persons Act applies to public accommodations, including hotels and other places to which the general public is invited, and specifies that an “individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose….” Cal. Civ. Code § 54.1

While the Unruh Act refers to “business establishments” and the Disabled Persons Act applies to “public accommodations,” California courts have seen the terms as significantly overlapping. The Unruh Act, in prior cases, has been held not to apply “truly private social clubs” or “a charitable, expressive, and social organization,” but it has been held to apply to a charitable organization that lacks a significant business-related purpose “if the entity’s attributes and activities demonstrate that it is the functional equivalent of a classic ‘place of public accommodation or amusement.’” In looking at a boy’s club, the California Supreme Court said that the club “offers basic recreational facilities to a broad segment of the population,” and was therefore covered (so that a suit for discrimination against girls was allowed). Isbister v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 83, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). See also Warfield v. Peninsula Golf & Country Club, 10 Cal.4th 594, 607 n. 7, 42 Cal.Rptr.2d 50, 896 P.2d 776 (1995); Curran v. Mount Diablo Council of the Boy Scouts, 17 Cal.4th 670, 696, 72 Cal.Rptr.2d 410, 952 P.2d 218 (1998).

Everyone is Welcome (?)

In the case before it, the federal district court noted that OHI does not make decisions about who might attend its program based on religious beliefs. In fact, nonmembers, nonadherents, and nonbelievers are welcome. No activities are required, so people coming to Lemon Grove can use the facility much like a hotel. Thus, “the Court finds that there is no genuine issue of material fact that, as applied to Plaintiff, OHI is a 'business establishment' pursuant to the Unruh Act and a 'public accommodation' pursuant to the Disabled Persons Act.” The court further concluded that OHI violated both Acts and that “Plaintiff is entitled to judgment as a matter of law as to Plaintiff's claim that Defendants violated the Unruh Act and the Disabled Persons Act when Defendants refused to allow Plaintiff to attend OHI alone, without a service animal and with a cane.”

The court noted that OHI has “offered no evidence that any of the people who attend OHI's detoxification program are members of FSTC or OHI and/or that any of them believe dogs defile spaces more than other animals that are not sacred and that roam OHI's multiacre facilities.” If allergies are a big problem, why are there other animals running around the area in the first place? The court held that even if there were “some slight infringement” on OHI’s member’s rights of expressive association, this infringement was justified because of the State’s compelling interest in eliminating discrimination against the disabled.

OHI then argued that even if the California Acts were to apply to OHI, the federal Americans with Disabilities Act would preempt them. That Act (42 U.S.C. 12187) exempts religious organizations or entities controlled by religious organizations from its coverage. Analyzing the legislative history of the ADA, however, the district court concluded that the federal legislation was not intended to displace rights and remedies available to disabled individuals under state law.

“The Court finds that it was the intent of the U.S. Congress that the ADA not preempt more expansive state laws such as the Unruh Act and the Disabled Persons Act. The Court finds that the religious organizations exemption in the ADA does not actually conflict with or otherwise preempt the application of the Unruh Act and the Disabled Persons Act in this case.”

There are a number of provisions that support the court in this respect. Under 42 U.S.C. 12201, the ADA specifies that nothing in it is to “be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities….” See also 28 CFR 36.103, providing that the ADA regulations do “not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.”

It is worth pausing to consider why the defense wanted to put the case under the ADA, which one might expect to be the linchpin of Stevens’ case, while Stevens’ counsel relied so heavily on state law claims. My guess is that it was a strategic decision. Stevens perhaps really wanted the monetary damages that could be obtained under the state law claims, but not the ADA. Although the ADA could have provided injunctive relief, Stevens wanted to come to OHI prior to her cancer surgery. By the time the case was resolved, the surgery would have happened, and the injunction would likely come too late. Damages may have been the only realistic relief.

Service Animal Issue Not Yet Resolved

It would seem the matter was settled, but the court determined that it could not grant summary judgment to Stevens with regard to her ability to bring the service animal.

“With respect to Plaintiff's presence at OHI with a service animal, and giving appropriate deference to Defendants' ‘view of what would impair [their] expression,’ … the Court finds that the competing affidavits submitted by the parties create a genuine issue of material fact as to whether application of the Unruh Act and/or the Disabled Persons Act to Defendants would violate Defendants' First Amendment rights to free expressive association.”

OHI, in its FAQs, states that pets “including service animals are not permitted in any area of OHI. During the detoxification process, guests become very sensitive to aromas, contaminates and pet allergens.” It is to be noted that service animals are not pets, something the court did not remark upon. In any case, the court may be signaling that it is possible OHI can make a “fundamental alteration” argument. In revising the ADA regulations in 2010, the Department of Justice allowed that a service animal could be removed from a public accommodation if “the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation.” 75 Fed. Reg. 56267 The Department of Justice “maintains that the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal.” 75 Fed. Reg. 56271. Thus, the court might look to whether OHI also precludes flowers from being in vases around the facility, or air fresheners from being in rooms, since pollens and chemicals are common triggers of allergic reactions. It is also to be noted that appropriate grooming of the dog might reduce allergic reactions.

OHI would also have to show that there would be no accommodation that could not take possible allergic reactions of the dog into account. The people with significant allergies might be given rooms separated by some distance from the dog, for instance (as is recommended, for instance, by the Department of Transportation in airplane cabins when service dogs are on the same flights as people with severe allergies)

Conclusion

Stevens has a picture of herself with her dog on her website. Stevens may not have helped herself on the service dog issue by agreeing at one point to use a cane instead of bringing her guide dog. It may have been more important for her to go to OHI than win on the service dog issue, and it is not clear at the moment that the case will continue. Since some important issues are involved, it is to be hoped that the court will be able to consider them. Others with guide dogs may encounter problems with OHI and similar facilities in the future, and it would be unfortunate if they have to fight the same battle over again.

Stevens v. Optimum Health Institute - San Diego , 2011 WL 3741055 (S.D. Cal. 2011)

Thanks to Joan Esnayra, Patty Dobbs Gross, and Kristina Chew for comments and suggestions.

Addendum. I received an email asking that I provide an example of where I thought a guide dog could be excluded based on a “fundamental alteration” argument. One situation that comes to mind is a petting zoo. California and Arizona have statutes that provide that zoos may exclude guide and other service dogs from places where such a dog might come in direct contact with zoo animals. The zoo must provide a kennel for the service dog at no charge, and must also provide a sighted person to accompany the blind person (Calif. Civ. Code. § 54.7(d)); Az. Counties Code § 11-1024.F). This is reasonable given that zoo animals cannot be expected to distinguish service dogs from other dogs. If—and I don’t think this is at all likely—OHI were able to carry the day on a fundamental alteration argument, the Church should not be able to charge for a person who accompanies a blind person during a stay at the facility. I believe that attempting to do so would violate the ADA.

Thursday, September 8, 2011

WikiDogs: Canines in the Leaked U.S. Diplomatic Cables

The U.S. diplomatic cables released by WikiLeaks contain numerous references to “canine” and “police dog,” though not all of these references are about non-human species. A cable from Embassy Harare in 2000 refers to Mugabe’s protean guard as being “loyal in a canine way.” Most cables refer to canine teams that were trained or deployed with the support of the State Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL), and the cables appear to have been sent to advise Washington that the countries where the embassies are located are appreciative of the canine teams and Washington’s support. Some cables provide estimates of the amount of drugs that have been seized, or describe dogs discovering bombs and IEDs.

The picture shows an INL-funded dog at a Ciudad Juarez car bomb site. Not all dogs mentioned are narcotics and explosives detectors. Cadaver dogs are referred to in several cables. Dual-function dogs are mentioned occasionally, though the embassy officials writing the cables were more concerned with the successes of the dogs than their training regimens. The officials were, in other words, providing fodder for summary reports to be written by DC State Department staff showing that money for canine programs is being well spent in the field.

The amount of expertise in embassies regarding specialized canine work is probably not that high in general. The State Department’s Inspector General noted in a 2010 report, Limited-Scope Review of the Bureau of Diplomatic Security's Oversight of Explosives Detection Canine Programs, that Department of State personnel in Iraq and Afghanistan did not have expertise in explosive detection canines and had to rely on the canine contractors themselves on issues such as whether dogs were being effectively trained or testing samples were being stored properly.

Not all cables have a positive tone. Austria has provided training for police from a number of countries including Afghanistan and Kazakhstan, as has Germany. Several officials speaking at a 2009 International Canine Conference in Kazakhstan were critical of a number of the canine programs of many of the countries in central Asia. Tajikistan was criticized for letting dogs die from lack of care. Although Uzbekistan has one of the best programs in the region, a cable from the embassy in Kazakhstan noted that it was doubtful, because of local hostility, that Tajikistan would be willing to let its officers train in Uzbekistan. An Austrian official criticized trainers in central Asia for not using real drugs in training narcotics detection dogs, though there has been a history of prosecuting canine trainers in some countries for selling drug samples they had been given for training purposes and some of the trainers did not want to risk such an accusation. A 2006 cable said that Tajik Border Guards were using trained drug detection dogs as guard dogs, leaving them outside in sub-zero temperatures. The embassy cable said that “the Border Guards have made no sincere effort to integrate the dogs into their work program.”

Cables from Kuwait describe a large canine unit (80 dogs in 2009) used to guard oil fields in the country, with canine units stationed at every refinery gate. Although over 500 trainers have come to the U.S. for training in Front Royal, Virginia, and El Paso, Texas, training is increasingly being done in the regions where narcotics and explosives detection dogs will work. The cables refer to canine training centers in Azerbaijan, Belgium, Brazil, Colombia, Guatemala, the Dominican Republic, El Salvador, Tajikistan, and Trinidad. Even though some countries may not have effective canine units, there seems little doubt that most countries that receive U.S. aid in narcotics enforcement have been anxious to get more canine teams. Countries that are currently attempting to increase their numbers of canine units include Bahrain, Bangladesh, Bulgaria, the Dominican Republic, El Salvador, Finland, Honduras, Kenya, Kosovo, Panama, Paraguay, Peru, Turkey, Turkmenistan, and Uzbekistan.

Although the cables indicate the State Department has been very positive to training provided in Bad Kreuzen, Austria, there has been some friction with Germany, which also provides international training. The Berlin embassy informed the State Department in 2008 of an agreement the Germans made to train representatives of the Iran Revolutionary Guard Corps. The embassy referred to Germany’s “credulity” in accepting “talking points” from Iran.

Cables sometimes refer to programs that have failed to keep their canine programs effective, including the Dominican Republic (dogs reaching the end of their useful lives) and the Philippines (in 2006, country’s armed forces lacked “even a basic canine explosives detection program”). Cables sometimes mention friction between other countries regarding the use of dogs. When the King Abdullah of Jordan visited Baghdad in August 2008, he apparently insisted on having his soldiers sweep the meeting location with dogs, something that offended the Iraqis. Dr. Tariq Abdullah told Americans: “If we visit Amman again, I too will insist that we (canine) sweep the King’s palace and that we bring our own tea and orange juice, as the Jordanians did.”

(King Abdullah is not the only one who thinks bomb dogs are a good precaution to have in Baghdad. In a redacted report released by the U.S. State Department Inspector General in May 2013, Inspection of Baghdad and Constituent Posts Iraq (ISP-I-13-24A), the IG states that several "security programs at Embassy Baghdad are atypical.  The sense and warn system (identifies, tracks, and warns employees of income rocket and mortar fire), biometric access control (daily iris scans or fingerprinting of local employees), emergency reaction teams, and explosives detection dogs are but a few."  The annual cost of the canine screening program is listed in the report as amounting to $50,939,224.)

When it comes to dogs, the U.S. and Cuba may not be so far apart. Although Cuba originally learned many of its canine training techniques from the Stasi (the East German secret police), a U.S. Coast Guard officer assigned to the U.S. Interests in Havana Section visited the Cuban National Canine Training Center in 2008. (See The Dogs of the Stasi.)

One curious fact that is revealed in a cable from the embassy in Kazakhstan is that drug traffickers in the area try to disguise shipments of heroin by coating the packaging with powdered wolves’ teeth. Chalk up another stupid reason for killing wolves.

The following are countries and canine issues mentioned in the cables. The numbers in parenthesis correlate with the 51 cables listed at the end of this blog. The maps are taken from CIA World Factbook.

Afghanistan. The U.S. Mission has, according to a 2008 cable (7), supplied canine units for border work in Afghanistan. Although a U.S. police trainer began training Afghani military personnel, training was taken over by the Austrian Ministry of Interior’s Canine Center (see Kazakhstan’s 2009 conference discussed below), which trained at least three Afghani personnel in Austria. A 2007 cable described an attempted IED attack at Kabul Airport (21):

“At approximately 1000 hours local time on 18 April, a pipe bomb was detected aboard a fuel truck shortly after it entered the north (military) gate to Kabul International Airport. The truck had just passed through an Afghan National Army (ANA) checkpoint and, according to witnesses, the driver appeared not to know where he was going. He had pulled up to the sallyport of an INL construction site, then apparently changed his mind and backed up to start in another direction. The truck was reportedly loaded with kerosene or diesel for ground vehicles. An ISAF [International Security Assistance Force] CANINE team detected explosive residue on the truck and immediately seized the truck and locked down the area. The canine team had been deployed inside the ANA perimeter in response to intelligence that an IED may be on its way to the airport. On further investigation, the pipe bomb was discovered at arm's length in a fuel hose adjacent to the main fuel tank. An EOD team disposed of the device, which contained 1.5 pounds of high explosives and an electronic remote firing mechanism. Questioning of the driver and helper has indicated initially that both denied awareness of the bomb.”

Azerbaijan. A 2009 cable refers to Azerbaijan opening a canine training center (8).

Bangladesh. A 2009 cable says that the Rapid Action Battalion of Bangladesh has a canine corps of 51 dogs (9), up from the 44 noted in a 2007 cable (11).

Belgium. A 2009 cable from the Brussels embassy states that the Belgian Canine Support Service has trained teams to search for drugs, and that these teams are used mostly at airports and train stations.

Colombia. Narcotics detection dogs are frequently mentioned as being used at borders, such as at Ipiales, on Colombia’s southern border with Ecuador (1).

Cuba. Despite the absence of formal relations between Havana and Washington, a 2008 cable (10) states that Cuban authorities have provided the U.S. Coast Guard officer assigned to the U.S. Interests in Havana Section “exposure to Cuban counternarcotics efforts, including providing investigative criminal information, such as names of suspects and vessels, debriefings on drug trafficking cases, visits to the Cuban National Canine Training Center and the anti-doping laboratory in Havana.”

Dominican Republic. A 2006 cable (48) stated that the Dominican Republic “maintained its counternarcotics and explosive detection canine units at its international airports and major sea ports. canine units at the five major airports in the country received updated explosives training and certification in 2006. The DNCD is purchasing canines for training in drug detection. Plans are underway to establish a CANINE training location utilizing an Army base that is currently in use.” The cable also says that the U.S. provided the country “equipment and training to maintain the explosive detection canine units.” A 2010 cable (49) states that a number of dogs in the country’s drug detection program “have met their useful life and are in the process of being retires. Four to six dogs will be retrained in the program for another year or two.”

El Salvador. In November 2004, the State Department’s Bureau of International Narcotics and Law Enforcement Affairs financed the construction of a canine training facility at Planes de los Renderos, just outside of San Salvador. A 2009 cable from the San Salvador Embassy (31) describes U.S. support:

“We have continued to invest in the CANINE program by purchasing training aids and sending instructors to NAS Colombia and NAS Guatemala for training. The Salvadoran police have been committed to developing the program, and their dedication is finally producing positive results. From January through July of 2006, CANINE alerts have detected eleven kilograms (kg) of marijuana, five kg of cocaine, and three kg of heroin, with a combined street value of US$365,000. The CANINE program instructors recently trained four currency detection dogs, and we expect undeclared currency seizures to increase at the international airport.

“Building upon this success, we recently completed the construction of five training cabanas and a rest area at the CANINE facility. With these new editions, El Salvador is now fully competent to train guides and dogs in narcotics, currency, and EXPLOSIVES DETECTION. Despite these capabilities, we have no intention of competing with NAS Guatemala with regards to regional training. We offer an alternative training facility in the event that NAS Guatemala cannot accommodate regional training needs, as well as a CANINE training venue for the International Law Enforcement Academy (ILEA) and other international training agencies.”

Germany. Germany is sometimes cited providing canine support. A June 2006 report (2) from the Embassy in Kabul mentions that the “German Police Project Office (GPPO) was constructing a facility to house 60 canines scheduled for delivery to Kabul in December 2006, 15 of which were to begin training in January 2007 for deployment to border control points. The Berlin embassy informed Washington in May 2008 (17) Germany provided Iranian police with canine detection training in May or June 2008 “as part of a counternarcotics protocol signed by the German Interior Ministry with Iran in November 2007.” The cable referred to Germany’s “credulity in accepting standard IRIG [Iran Revolutionary Guard Corps] talking points on Iran’s activities in Iraq and Afghanistan.”

Honduras. A 2005 cable from Honduras (40) reports that the State Department has provided support for the canine program of the Honduras Frontier Police, including training for handlers and dogs, veterinary services, food, and supplies.

India. In a 2008 dispatch from the U.S. Consulate in Kolkata (16), the West Bengal Police ruled out a bomb as the cause of an explosion 200 meters from the Consulate.

Iraq. Iraq searched refugee camps with canines in April 2009 (18). When the King Abdullah of Jordan visited Baghdad in August 2008, he apparently insisted on having his soldier’s sweep the meeting location with dogs, something that offended the Iraqis. Dr. Tariq Abdullah told Americans (19): “If we visit Amman again, I too will insist that we (canine) sweep the King’s palace and that we bring our own tea and orange juice, as the Jordanians did.”

Israel. A 2004 cable from the U.S. embassy in Tel Aviv (20) detailed that Hamas took credit for killing an Israeli soldier and his dog near Karni Crossing with an IED during a search for weapons.

Kazakhstan. Kazakhstan has requested canine support from the U.S. (22), and according to the Department of State website posting in 2009, has had 94 officers receive counternarcotics canine training. In 2008, the State Department initiated a canine program and funded the purchase of three dogs and sponsored the attendance of three Kazakhstani officers at a two-month course at the Canine Center in Bad Kreuzen, Austria (23). Further:

“The training of the first three dogs was meant to acquaint Kazakhstanis with the Austrian method of training dogs for the search of drugs and allow Kazakhstani and Austrian officials to exchange experience in this area. The Austrian method uses training approaches that minimize stress and conflict and maximize psychological work with the dogs. The training of instructors was followed by a series of interagency training programs in Kazakhstan. Through its grant to IOM, INL is renovating sections of the CANINE facility at the Military Institute of the Committee for National Security.”

From the wording, it is not clear if the Americans are taking credit for the Austrian approach or deferring to it. A 2009 cable (42) indicates that the INL funds participation of Kazakh officers to the extent of $40,000. Further:

“[Kazakh officers] trained at the Austrian Ministry of Internal Affairs' CANINE Training Center successfully conduct training programs at their agencies. Through this program, INL intends to increase the number of instructors trained in Austrian methodology. Kazakhstan is also developing a textbook to train CANINE specialists, including chapters on the Austrian methods. Additional information on training methods in other countries is also necessary to increase the effectiveness of Kazakhstani methods.”

Some of these facts made it into the Kazakhstan—U.S. Foreign Assistance Performance Publication for Fiscal Year 2009. A 2009 cable (41) indicates the INL funded “a study on canine socialization when housed with their handlers,” and that the Kazakh canine service had shifted to dry food for dogs, “which is healthier than the previously-used cooked food.” The cable contained some very curious facts about smuggling drugs in the area:

“Traffickers continue to search for new concealment methods. Recently, traffickers attempted to mask the scent of heroin from canines by coating shipments with powdered wolves' teeth. Traffickers also soak clothing in a heroin solution. When the clothing is delivered the heroin can then be extracted.”

A 2010 memo posted on the INL website, describes an undated competition in which Kazakh canine teams defeated teams from Kyrgyzstan, Tajikistan, Turkmenistan, and Russia. “The competition, won by the team from Kazakhstan, helped develop professional relationships between canine services of the participating countries and proved a popular performance incentive for the trainers.”

Kazakhstan’s 2009 International Canine Conference. An International Conference on the Role of Canines in the Fight against Drug Trafficking, Extermism and Terrorism was held in Almaty, Kazakhstan on March 26-7, 2009 (5). Five Central Asian countries, Austria, and Germany “discussed coordination and the possibility of unified CANINE standards in the region.” Most countries did not appear to have effective programs:

“In general, most national representatives complained that insufficient budgets resulted in poor quality dogs and undertrained handlers. Only Uzbekistan touted its accomplishments but deferred from volunteering to be a regional breeding center.” The Kazakhstani program was seen as adequate and sustainable and Kazakhstan volunteered to host regional training, including for Afghanistan. There was additional evidence about why some countries did not have adequate programs:

“Alexander Bodnar, head of the CANINE Department of Kazakhstan's Military Institute, presented his views on the reasons that CANINE programs in Central Asia have not succeeded. He stated that there are no regionally accepted methods of training CANINE specialists and dogs. Moreover, there are an insufficient number of dogs meeting the selection requirements for special training. These countries do not sufficiently fund their CANINE programs and the budgets provided are not sufficient to purchase quality dogs. Law enforcement agency headquarters generally do not understand the needs of the CANINE services and the importance and abilities of their CANINE services. Bodnar also complained of an insufficient number of instructors and managers in Central Asia capable of conducting training for CANINE specialists. He proposed retraining current CANINE specialists as opposed to training new ones. He also stated that there is very little communication among CANINE instructors in the region.”

Bodnar said that some dogs at the canine center of the Tajik Border Guard Service died because of insufficient care. The Drug Control Agency in Tajikistan does, according to Bodnar, take good care of its dogs. Bodnar was also critical of Kyrgyzstan. A Kyrgyz official seemed to agree:

“Pavel Sukhodolskih, Head of the CANINE and Cavalry Services of the Border Guard Service of Kyrgyzstan, discussed the activity of criminal groups within large flows of migrants. Currently, the Border Guard Service, the State Customs Committee, and the Drug Control Agency have 54 dogs trained in searching for drugs and explosives; however, they are only able to cover 20% of the Kyrgyz border with Kazakhstan. Sukhodolskih complained that of a lack of pure-bred dogs, lack of professional instructors, insufficient equipment, and absence of methodological literature hamper efforts to train specialists.”

Although the Uzbek government representative touted his countries canine program, noting that his trainers had worked with experts from Austria, Kazakhstan, France, Russia, and Germany, the U.S. embassy cable contained a parenthetical comment: “(COMMENT: There is some question if all Central Asian countries, particularly Tajikistan, would be willing to attend training in Uzbekistan. END COMMENT).”

An Austrian participant was broadly critical of canine training in Central Asia:

“Josef Schuetzenhofer, the Head of the Austrian Ministry of Interior's CANINE Center, discussed existing problems and prospects for future cooperation. Since May 2005, he has had an opportunity to learn about the CANINE systems in Uzbekistan, Turkmenistan, and Kazakhstan. He maintained that there is a lack of quality work dogs, a lack of breeding dogs, and improper dogs are purchased. All services should pay attention to the selection of dogs, proper training of puppies, training dogs in a less stressful manner, training with proper equipment, and humane treatment of dogs. In the future, Schuetzenhofer would like to see an increase in the use of CANINEs, interagency cooperation, and the use of real drugs for training, as well as bigger budgets better used, and an improvement in breeding programs.”

The embassy cable said that all dog training programs in Kazakhstan use drug substitutes for training, partly because trainers refuse to use real drugs. Administrative and criminal cases were initiated against canine officers in the past for misuse of training samples. The cable also concluded that “all services in Kazakhstan will unanimously move to the Austrian methodology of training dogs.”

The INL website describes providing three dogs in 2008 that were trained in Austria and then sent to training facilities in Kazakhstan.

Kenya. A cable from January 2009 (30) states that the Kenya Revenue Board will be acquiring four more dogs from the U.S. to improve and expand its Canine Enforcement Program.

Kosovo. The Kosovo Police Service swept a truck at the Kulla border with dogs that alerted (24). A large amount of cocaine was found.

Kuwait. The Oil Sector Services Company (OCCC) was reported by the embassy in Kuwait in 2009 (25) to be putting together an “80 team strong canine unit trained by a U.S. company. An earlier report (26) indicated that canine units were to be stationed at every refinery gate.

Mexico. The El Paso Canine Center in Texas has, according to the INL website INL website, trained dogs for the Mexico City Airport.

Additional Note. In a presidential memorandum to the Secretary of State published in the Federal Register on September 21, 2015, President Obama stated "the United States has provided scanners, x-ray machines, other non-intrusive inspection equipment, as well as trained canines, to enhance Mexican authorities' ability to detect illicit goods at key checkpoints and ports of entry along the border, resulting in significant seizures of illicit drugs, currency, weapons, and explosives."  This may indicate that both narcotics and explosives detection dogs are being supplied by the U.S. to Mexico.  Presidential Determination on Major Drug Transit or Major Illicit Drug Producing Countries for Fiscal Year 2016, 80 Fed. Reg. 57063 (September 21, 2015).

Panama. A 2005 cable (45) states that the “United States has provided Panamanian Customs with training, operational tools, and a canine program that has become a linchpin of the Tocument International Airport Drug Interdiction Law Enforcement Team. During 2005, the canine program was dramatically expanded, allowing it to operate outside the confines of the airport.”

Paraguay. A 2005 cable (46) states that “the continued purchase and training of new canine units have helped to increase overall cocaine seizures for the past three years.” The cable refers to INL funding and says that the government of Paraguay “does not have the resources to carry out these essential activities.”

Peru. The Lima Embassy in 2008 (27) described dogs finding $120,000 hidden in a nylon stocking strapped to a man’s body, and later finding cocaine on a flight bound for Turkey. The U.S. is helping fund canine narcotics detection teams for Peru (28, 29).

Philippines. A 2005 cable indicates that dogs were used in putting down a prison riot (43). A 2006 cable (44) stated that the Armed Forces of the Philippines lack “even a basic canine explosive detection program.”

Ports. Turkey has sniffer dogs at the Port of Izmir (4), though the embassy cable states that there is no device to screen containers. Argentine customs officials use mobile cargo scanners, but also have a canine unit (6). Finland, according to a 2009 cable (15) has “enhanced its use of narcotics detection canine units at key ports of entry into Finland.” The cable says this is seen by Finland as primarily having a deterrent function.

Tajikistan. A 2006 cable (13) notes that International Law Enforcement and Narcotics, a bureau in the Department of State, was critical of the Tajik use of dogs:

“In late 2005, INL funded a program to provide the Tajik Border Guards with drug-detecting dogs. The Border Guards cannot account for all the dogs provided, and post has previously suspected that local Border guards sold the pups of these dogs for personal profit. During October and November visits to the Bog and Bakhorat border posts, EmbOffs [embassy officers] observed other INL-donated dogs posted outside in sub-zero temperatures to serve as watchdogs, which adversely affects their intended purpose of detecting narcotics. COMMENT: Post is deeply disturbed by the misuse of INL-provided dogs. While this project is designed to help fortify the border from the illicit narcotics transit, the Border Guards have made no sincere effort to integrate the dogs into their work program. Post's Senior Law Enforcement Advisor attended an unproductive National CANINE Strategy Interministerial Subcommittee meeting. The Interministerial group has failed to come up with government resources to maintain the dogs. As a result, Post has decided that until the National CANINE Strategy is finalized with clear delineation of responsibilities among the Tajik law enforcement agencies, we will not conduct any dog-related program. Nor will we agree to provide additional dogs, unless they are first neutered and spayed to preclude breeding for sale. END COMMENT. “

Nevertheless, in 2009, another cable from Tajikistan referred to building a new Drug Control Agency canine training facility, though apparently without U.S. support (14).

Trinidad. A 2007 cable (50) describes Trinidad’s canine academy program, funded by the Department of State:

“The K9 Academy is composed of 18 canines and their respective handlers: 9 explosive detection canines (or bomb dogs), 6 tactical/narcotics dogs, 2 straight narcotics and 1 cadaver-finding dog. The bomb dogs, who work with the Explosive Detection and Disposal Unit, have responded to numerous threats in all parts of the country. Their debut in service came with a series of small and still unsolved explosions in Port of Spain in mid-late 2005. The dogs were also put into regional service when the Indian Black Cat Commandos requested a dog and handler to search for bombs at Providence Stadium in Guyana during the Cricket World Cup in Spring 2007.

“The seven canines that make up the Tactical Narcotics team have been instrumental in the discovery of over 350kg of marijuana, 1 kg of heroin and 9 kg of cocaine between May 2006 and May 2007, valued at approximately USD 670,000, as well as finding arms and ammunition. The CADAVER DOG has found one body so far and works with the Homicide branch of the Police Division.

“The K9 Academy continues to grow. The renovated kennels can now house 36 canines. In an effort to integrate female officers, the necessary accommodations are being constructed at the academy. Recertification is required every year and as a result, one of the initial K9 officers has reached the level of assistant instructor. Due to the popularity and prestige of the unit, a competitive candidate waiting list now exists.

“Post's INL program contracted with CSI International to conduct the initial training and certification. Since then, the Government of Trinidad and Tobago has retained CSI for a two year period to oversee the continuous training and re-certification of the dogs. President and CEO of CSI, Anthony Piegare continues to receive high praise from handlers and the Police Service as a whole, for his level of expertise, commitment to excellence and to the program. Post appreciates his willingness to work as a partner to the program, ensuring its success.”

A 2010 cable (51) provided an update on the canine program:

“All of the dogs continue to be used extensively at the airports and other points of entry, in addition to being used in the EXPLOSIVE DETECTION unit. They have conducted over 200 operations including search of outgoing and incoming passenger's baggage, import and export cargo, courier packages, major high profile events and during several bomb threats. They have assisted in the capture of over 25kg of marijuana, and approx 5kg of cocaine. When seen carrying out their duties, these canines convey a sense of security to the public. However, these dogs have been over-worked and may need to be replaced soon.”

Turkmenistan. A 2010 cable (36) indicates that “the Turkmen government has a particular interest in canine training, anti-cyber crime technology, and training in hostage negotiations.”

U.S. Support for Other Countries’ Canine Programs. The U.S. sometimes provides support for programs of other countries training sniffer dogs, such as Turkey’s Golbasi National Dog Training Center (3), Dominican Republic anti-narcotics officers, who went to Miami for training (12), the Trinidad and Tobago Canine Training Academy (32), and Bulgaria’s Training Center at Balchik (47).

Uzbekistan. The Embassy in Tashkent reported in April 2006 (33) that Uzbekistan’s use of dogs at borders was “thorough and professional.” The amount of U.S. funding is unclear (37, 38). France provides some training (39). In 2008, a cable (34) said that the Uzbeki Customs National Canine Training Center “has become a regional center for the World Customs Organization and has begun training officers from Afghanistan, Tajikistan, Kyrgyzstan, Iran, Mongolia, and Turkmenistan. A 2009 cable (35), however, complained that at the Temez River Port there “is only one canine available to examine incoming agricultural cargo from Afghanistan, and it tires after no more than 20 minutes in the intense summer heat.” The State Department's 2010 Trafficking in Persons Report stated that Uzbekistan "routinely compels children and adults as laborers in the country's annual cotton harvest. During the 2009 fall harvest, school children were forced to pick cotton in at least eight of 14 regions in the country." It must be wondered if efficient border guards always have humanitarian interests in mind.

(1) Embassy Bogota, December 2009, ID 10BOGOTA244, 2010-01-22.
(2) Embassy Kabul, June 2006, ID 06KABUL4317, 2006-09-21.
(3) Embassy Ankara, May 2004, ID 04ANKARA3756, 2004-07-06.
(4) Embassy Ankara, December 2004, ID 04ANKARA6649, 2004-12-01.
(5) Embassy Astana, April 2009, ID 09ASTANA660, 2009-04-17.
(6) Embassy Asuncion (Paraguay), January 2008, ID 08ASUNCION62, 2008-01-29.
(7) Embassy Astana, November 2008, ID 08ASTANA2352, 2008-11-26.
(8) Embassy Baku, November 2009, ID 09BAKU918, 2009-11-25.
(9) Embassy Dhaka, November 2009, ID 09DHAKA1014, 2009-11-03.
(10) U.S. Interests Section Havana, December 2008, O8HAVANA952, 2008-12-24.
(11) Embassy Dhaka, November 2007, 07DHAKA1785, 2007-11-13.
(12) Embassy Santo Domingo, November 2003, 03SANTODOMINGO6906, 2003-11-28.
(13) Embassy Dushanbe, December 2006, 06DUSHANBE2191, 2006-12-07.
(14) Embassy Dushanbe, December 2009, 09DUSHANBE1454, 2009-12-24.
(15) Embassy Helsinki, November 2009, 09HELSINKI1429, 2009-11-16.
(16) Consulate Kolkata, January 2008, 08KOLKATA22, 2008-01-18.
(17) Embassy Berlin, May 2008, 08BERLIN685, 2008-05-22.
(18) Embassy Baghdad, April 2009, 09BAGHDAD1106, 2009-04-24.
(19) Embassy Baghdad, August 2008, 08BAGHDAD2724, 2008-08-25.
(20) Embassy Tel Aviv, December 2004, 04TELAVIV6197, 2004-12-07.
(21) Embassy Kabul, April 2007, 07KABUL1412, 2007-04-25.
(22) Embassy Astana, October 2008, 08ASTANA2079, 2008-10-20.
(23) Embassy Astana, December 2008, 08ASTANA2380, 2008-12-02.
(24) Embassy Pristina, January 2007, 07PRISTINA21, 2007-01-10.
(25) Embassy Kuwait, September 2009, 2009-09-15.
(26) Embassy Kuwait, December 2006, 06KUWAIT4562, 2006-12-04.
(27) Embassy Lima, March 2008, 08LIMA398, 2008-03-06.
(28) Embassy Lima, August 2005, 05LIMA3419, 2005-08-09.
(29) Secretary of State, 09STATE32018, 2009-04-02.
(30) Embassy Nairobi, January 2009, 09NAIROBI12, 2009-01-02.
(31) Embassy San Salvador, September 2009, 06SANSALVADOR2267, 2006-09-14.
(32) Embassy Port of Spain, April 2006, 06PORTOFSPAIN445, 2006-04-10.
(33) Embassy Tashkent, April 2006, 06TASHKENT777, 2006-04-21.
(34) Embassy Tashkent, December 2008, 08TASHKENT1471, 2008-12-17.
(35) Embassy Tashkent, April 2009, 09TASHKENT437, 2009-04-03.
(36) Embassy Ashgabat, January 2010, 10ASHGABAT94, 2010-01-20.
(37) Embassy Tashkent, February 2009, 09TASHKENT220, 2009-02-26.
(38) Embassy Tashkent, November 2009, 09TASHKENT1958, 2009-11-03.
(39) Embassy Tashkent, October 2010, 08TASHKENT1218, 2008-10-21.
(40) Embassy Honduras, March 2005, 05TEGUCIGALPA540, 2005-03-10.
(41) Embassy Astana, December 2009, 09ASTANA2196, 2009-12-22.
(42) Embassy Astana, October 2009, 09ASTANA1768, 2009-10-02.
(43) Embassy Manila, March 2005, 05MANILA1199, 2005-03-15.
(44) Embassy Manila, October 2006, 06MANILA4396, 2006-10-18.
(45) Embassy Panama, December 2005, 05PANAMA2375, 2005-12-07.
(46) Embassy Asuncion, April 2005, 05ASUNCION488, 2005-04-11.
(47) Embassy Bucharest, July 2005, 05BUCHAREST510, 2005-07-07.
(48) Embassy Santo Domingo, November 2006, 06SANTODOMINGO3438, 2006-11-03.
(49) Embassy Santo Domingo, February 2010, 10SANTODOMINGO226, 2010-02-10.
(50) Embassy Port of Spain, August 2007, 07PORTOFSPAIN786, 2007-08-09.
(51) Embassy Port of Spain, February 2010, 10PORTOFSPAIN136, 2010-02-01.

Wednesday, September 7, 2011

Florida Court Sets Unreasonable Expectation on Dog to Distinguish Trace Amounts from Residual Drug Odors

Near midnight on August 14, 2007, James L. Wiggs was pulled over by a Sarasota County Deputy for running a red light on U.S. 301. While one deputy prepared to write a citation, Deputy Indico conducted a sniff of the car with Zuul, a German Shepherd acquired from Hungary, that Indico had begun training in February 2007. Zuul alerted and a search of the vehicle produced cocaine.

Indico and Zuul had completed an 80-hour narcotics training course offered by the Sarasota Sheriff’s Office and a 400-hour patrol course. A patrol course often focuses on suspect apprehension, but it is not clear that a class of this length would be limited to that topic. The court did not discuss Indico’s experience prior to being paired with Zuul, which would be relevant in determining whether the training he received with the dog was adequate. The team was certified by the Florida Department of Law Enforcement (FDLE) and the National Police Canine Association (NPCA). The certification process had been completed in April 2007.

Zuul’s training was described by the court as follows:

“The dog was trained to detect different scents of narcotics by placing the drug on top of a bean bag so the bag absorbed the scent. Then the bean bag was introduced to the dog in the form of a hide-and-seek game in which the dog used his nose to locate the bean bag. Eventually, the dog was introduced to the actual narcotic. Zuul was trained to detect marijuana, cocaine, methamphetamine, and heroin.

“Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

“Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.”

It is to be noted that 0.1 gm is a very small amount of material for training; even 100 grams (about 3.5 ounces) is low as well. The amounts perhaps suggest that the dog was being taught to recognize very small amounts of narcotics of a level that would commonly indicate personal use, which the local prosecutor may have been willing to consider a prosecutable level.

To receive NPCA certification, Indico and Zuul had to achieve 75% accuracy, and had to find narcotics in two out of four vehicles and in two out of three rooms in a building. The FDLE certification included apprehension, tracking, and building searches, but did not involve narcotics detection training. They also trained on a weekly basis. Monthly training logs of the team were introduced into evidence.

Deputy Indico kept a monthly report of their field activity, and the reports from April 2007 to August 2007 were also introduced into evidence. When Zuul gave a positive alert but no drugs were found, Indico documented any history of the vehicle or its passengers with drugs, generally deriving the information from interviews of the individuals involved. “If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert.” This is tantamount to accepting hearsay evidence as indicating that residual odor was present, which is weak support for such an argument, but it must be noted that Indico was documenting what information he was provided.

The Florida appellate court reviewed each of the sniffs Zuul had made between May and August of 2007, and calculated that the team had been summoned to 17 vehicle stops, ten of which resulted in an alert with no discovery of drugs. Only four post-alert vehicle searches, including the one involving Wiggs, the defendant in the case before the court, resulted in the discovery of drugs. In all but three of the stops where alerts did not produce drugs, Indico recorded that an occupant of the car admitted to smoking marijuana or had some history involving drugs or people who used drugs, though Indico generally did not follow up regarding the histories he noted.

Reliance on Harris

The Florida appellate court based its decision in large part of its analysis on the Florida Supreme Court case of Harris v. Florida, 989 So.2d 1214, 2011 WL 1496470 (2011), which we discussed previously. In that case the Florida Supreme Court favored a line of Florida cases that had, among other things, considered the dog’s selection, training, and field track record (including false alerts) in determining whether probable cause existed from a dog’s alert. (See discussion of Florida v. Foster, 390 So.2d 469 (Ct. App. 1980) in Police and Military Dogs.)

The appellate court noted the Supreme Court’s emphasis on a dog’s field records:

“[A] dog's alert to residual odor, though different from a false alert, may not indicate that drugs are actually present at the time…. The [Florida Supreme Court] rejected the State's argument that field records are meaningless because dogs do not distinguish between the odor of drugs that are present and residual odors. Instead, the court determined that evidence explaining unverified alerts would allow the trial court ‘to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.’”

The Supreme Court had also emphasized the lack of evidence concerning the dog’s training, and that the prosecution failed to present any quantification of the dog’s success rate in the field because it did not introduce the dog’s field performance records and could not explain the significance of the dog’s unverified field alerts. (Of course, the prosecution may not introduce the field records because of a desire to avoid providing evidence it considered weak and which the defense could attack and perhaps exclude.) The Supreme Court concluded that because the prosecution failed to establish a reliable alert, it failed to establish probable cause, and the motion to suppress should have been granted.

The appellate court in Wiggs believed the same analysis provided by the Supreme Court in Harris should lead to the same result from the facts before it. The appellate court found Zuul’s field performance records to be “problematic.” The court found that Zuul’s accuracy rate was approximately 29%, which it derived from dividing the four alerts leading to drugs by the 14 alerts in total. The court said this “accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert.” The court rejected the prosecution’s argument that, given the admitted drug usage and drug histories recorded in most of the cases, the field accuracy rate was 100%. The prosecution probably overstated the case, since there were some instances where no drug usage or history was noted, meaning that the accuracy rate, even from the prosecution’s perspective, was at most 79% (11/14), but more likely about 64% (9/14). The appellate court acknowledged Indico’s records on prior use or history, but said “the explanations were not specific enough to establish that existence of residual odors on which Zuul should have alerted.” The court thus emphasized what it considered to be poor recordkeeping.

“In five of the unverified alerts, the deputy merely testified that the vehicle had a ‘drug history.’ However, the deputy did not explain what this history entailed or why it ensured that drugs had once been present in those vehicles. In four of the unverified alerts, Deputy Indico testified that someone in each vehicle had used narcotics recently. However, there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect. The absence of this information leaves us unable to evaluate the significance of these unverified alerts. The evidence simply does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs' vehicle. Thus, we are not inclined to consider these nine unverified alerts in Zuul's field accuracy rate.”

The appellate court allowed that one of the alerts not producing drugs nevertheless involved an odor of marijuana strong enough that even Indico could smell it, but that adding this to the accuracy calculation still only brought it up to 36%.

The appellate court also noted the lack of detail regarding the alert to Wiggs’s vehicle:

“No evidence was presented about the nature of the alert, the search of Wiggs' vehicle, or the location of cocaine therein. Thus, it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself. The State has failed to make a connection between Zuul's alert and the discovery of the drugs in this case.”

This criticism is valid, but should also be directed to Indico’s supervisor, who should have seen that Indico’s recordkeeping was inadequate. The appellate court concluded that the motion to suppress should have been granted.

Concurring Opinion

Judge Altenbernd, concurring in the result, was nevertheless “inclined to believe” that the dog’s alert, combined with Wiggs’s sweating and nervousness, along with the imprisonment he told the Sarasota County Deputy about, “should have been enough to permit this search….” This judge raised the issue that was not faced in the majority decision:

“It seems obvious that Zuul is alerting on residual drugs that do not lead to the discovery of arrestable quantities of drugs. It is not that Zuul is alerting when there are no drugs to smell; he is alerting to molecules of drugs left behind in vehicles where drugs have been used or transported. Thus, in Harris, the court is requiring that law enforcement train dogs to distinguish between the odor of minute quantities of drugs and larger quantities of drugs. If that cannot be done for a particular drug, it seems we will need to abandon dogs as a method of obtaining probable cause for that drug.”

This analysis must be questioned. The Florida Supreme Court in Harris was concerned that an absence of field records meant that the prosecution could not establish any aspect of the dog’s performance in the field and no correlation with training records could be made. That was not the case here.

Judge Altenbernd also questioned the use of percentages:

“The dog is merely providing roadside information to help an officer decide whether there is probable cause to perform a search. Even if Zuul helps locate an arrestable quantity of illegal drugs only 36 percent of the time, I am not entirely convinced that evidence seized, based in part on his alert, must be suppressed. The notion that the exclusionary rule will be applied if a dog does not achieve a success rate of any particular percent, whether 25 percent or 75 percent, is establishing a bright line that I am not currently convinced to be constitutionally necessary.”

Courts have often looked at accuracy rates, and have not always expected them to be high. See U.S. v. Donnelly, 475 F.3d 946 (8th Cir. 2007) (accuracy rate of 54%, along with numerous other factors, was sufficient to provide probable cause for search); U.S. v. Limares, 269 F.3d 794, 797 (7th Cir. 2001) (dog gave false positives between 7% and 38% of the time).

Finally, the concurring judge noted that an explosives sniffing dog at Miami airport would not be retired even if his alerts only produced explosives 36% of the time.

Defects in the Opinion

The court’s reliance on Harris is perhaps inevitable, but it is our opinion that more of a distinction should be made between that case and this one than has been made by the appellate court. There, the handler had virtually no field records. Here, the handler had records of every single sniff and every single alert. Where alerts did not result in drugs being found, the handler had consistently made an effort to find out if residual odor was possible. The court seems to feel that some level of recordkeeping would allow for scientific determination of whether residual odor was detected by Zuul, or if something else explained the alerts, such as cueing (an issue not raised in the case). Better recordkeeping could have been required, but would not have proven the existence of residual odor.

Dogs have different levels of minimum thresholds, which is what residual odor is, meaning that the alerts where there was some drug history could have all been correctly made. Indeed, the court’s logic might mean that a dog alerting more accurately, producing more alerts to small concentrations of illicit chemicals, would provide less acceptable evidence than a dog not able to detect such small concentrations. The result would be that the better dog might have an alert thrown out while a dog with less skill could have his retained because he would not detect small and residual concentrations. The judiciary should not be creating law that favors the less accurate instrument over the more accurate instrument.

Indico could have more carefully documented the circumstances that might indicate the dog was alerting to residual odor, but in many cases the occupants of a vehicle were making an admission against interest and might be inclined to put their prior usage further back in time to reduce potential risk from the admission. Looking up records of prior crimes and encounters with the police would hardly produce a complete description of when the drugs that left the residue were actually present, though the effort should have been made.

The appellate court is correct in saying that “it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself.” This could eliminate a great many alerts, since a dog may sometimes alert at a part of a vehicle relatively distant from the location where drugs are found. Other factors come into play. The driver might smoke a joint, throw it away, but then open the car door with the hand that held the joint. Cocaine, on the other hand, may never be in direct contact with the user’s hands.

The court complains that “there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect.” Some higher level of precision might be reached if sophisticated forensic testing were required to determine a dog’s threshold, but these thresholds vary from dog to dog and day to day, and requiring such precision in order to justify use of a dog would effectively mean that the inability to precisely calibrate a dog would become an argument against using them at all. No exact molecular level of illicit chemicals in the atmosphere would guaranty that illegal drugs are present. Too many factors affect the diffusion of chemicals—the type of drug, the amount of it present, how it is packaged, where it is hidden, temperature, humidity, wind level, the dog’s health, and so forth. These factors would be relevant to the operation of any chemical detection apparatus. The dog’s alert is an indication that some level of narcotic chemicals are in the atmosphere. That is what it is trained to detect. An actual presence of chemical odor detected by a properly trained and certified canine, with adequate documentation of field work that does not negate the skill of the dog, should be enough for probable cause.

The court then states that the “evidence does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs’ vehicle.” The question should not be whether the dog only recognizes a threshold amount of chemical such that a search will inevitably result in a finding of drugs, but whether there is a sufficient probability that a search is justified. A large amount of drugs removed several days or hours before the sniff may leave as much odor as a small amount of drugs presently in the vehicle but well hidden and tightly packaged. The dog cannot be expected to distinguish between these two possibilities as this court seems to require.

The concern in Harris, as we read it, was that there were no field records for the dog involved. The Florida Supreme Court there stated:

“Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog's reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog's performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.”

Thus, the Florida Supreme Court concluded that field records were essential to determining the dog’s reliability. Although that court was concerned with alerts that did not produce drugs, the primary focus of the argument was that the dog should be found to be reliable in finding drugs. The point of field records is not to establish the ratio of false alerts to residual alerts, but to provide another tool for assessing reliability by determining whether there might be a trend in the dog’s alerting pattern that would indicate that its accuracy has declined, an issue that should be attended to through additional training. There were no field records in Harris, making this part of the evaluation impossible. The Harris court acknowledged the prosecution’s argument in that case that it was impossible to distinguish a false alert from an alert to residual odor, but said that because “the State did not introduce field performance records, the State was not able to explain the significance of any unverified alerts in the field.” In Wiggs, there were field records. Comparing the field records and the training records, the argument could be made that Zuul was alerting to residual odors a significant portion of the time. No such argument could be made in Harris. The burden should be on the defense, once field records were produced, to establish that they indicate the dog’s skill has not remained at the appropriate level. That was not done by the defense here. The defense merely raised the possibility that the field records indicated a high proportion of alerts to residual odor. Saying that the proportion of residual alerts was high does not establish that the dog must have been falsely alerting a high portion of the time as well. That is the assumption that the appellate court seems to have accepted.

Since Zuul’s training records in the present indicated a consistent level of accuracy, the number of alerts not leading to the discovery of drugs here could argue that the dog was sometimes alerting to residual odor. A smart drug dealer will not travel around with drugs in his car unless he is making a purchase or delivery. The behavior patterns of criminals in the Sarasota area should not be a reason for negating the alerts of a dog.

When we reviewed Harris, we concluded that it was correctly decided. We based that judgment on the fact that the court determined that defense counsel had the right to review field records, and a lack of such records meant that significant evidence concerning the dog’s behavior was not being made available to the defense. Here, those records were provided. The fact that the dog’s field records are inconsistent with its training records can be more easily explained by the presence of residual odor than by some sudden and unexplained drop in the dog’s accuracy. Alternatively, the defense could have argued that the dog was being cued in the field, an argument that could have had some cogency if evidence for it had been presented. Still, that would be an argument based on the handler’s failures, not the dog’s. The appellate court’s determination to lay the blame on the dog is misplaced, not only as to this case, but also as to canine detection law in general.

This case was poorly reasoned and decided incorrectly. There were deficiencies in Indico’s practices, but they were not of such a level that the appellate court should not have deferred to the trial court’s determinations.

This piece was written by John Ensminger and L.E. Papet.