New Research Reveals More about Seizure, Diabetic, and Migraine Alert Dogs: But Are They Always Service Dogs? If There's Doubt, Will a Doctor's Letter Help?

Recent studies of dogs alerting in advance to migraines and radical shifts in blood sugar levels indicate that these are functions that are likely to become much more prevalent for service animals in the coming years. These skills, and the already well-known ability of some dogs to alert to the onset of epileptic and other seizures, present legal issues that not all of the federal regulatory agencies have fully considered. It is time to do some speculating on that, but I will begin by summarizing three recent studies.

Alerting Reported by Dogs of Migraine Sufferers in Survey

An online survey of migraine sufferers concerning their dogs’ behavior before and during migraine episodes revealed that slightly over half of those responding said they recognized changes in the behavior of their dogs prior to getting a migraine.

The researchers who reported on the survey results were Dr. Dawn Marcus of the Department of Anesthesiology at the University of Pittsburgh (whose therapy dog research was discussed here recently) and Amrita Bhowmick of Health Union in Philadelphia. They note that migraines are episodic disorders “with disabling attacks often preceded by subtle changes during the hours before the painful part of the attack, called the migraine predrome.” This predrome “includes changes in mood; food cravings; digestive symptoms, yawning, frequent urination; neck pain; and neurological symptoms (e.g., difficulty concentrating, dizziness, blurred vision, and sensitivity to noise or lights).”

In a prior (2012) study, Dr. Marcus had catalogued behaviors of pet dogs whose owners had migraines, some reporting changes up to 24 hours before the onset of migraine symptoms. The current survey was designed to obtain a broader sampling. Most participants (94.9%) were women, who typically had migraines less than 8 days a month, though some had chronic migraines occurring more than 15 days a month.

The most common behavior reported was “the dog refusing to leave the migraineur.” The following table describes the different types of alerting behaviors reported, and the time before initial migraine symptoms:

Alerting Behavior	Number (%)
Staring at migraineur	126 (27%)
Barking at migraineur	15 (3.2%)
Sitting on migraineur	103 (22.1%)
Refusing to leave migraineur’s side	364 (78.1%)
Whining	56 (12%)
Pawing at migraineur	101 (21.7%)
Other (e.g., licking, restricting usual activity level, herding migraineur to couch or bed)	130 (27.9%)
Duration between alerting behavior and initial migraine symptoms
0-15 minutes	52 (11.2%)
16-30 minutes	70 (15%)
31-60 minutes	65 (13.9%)
1 to 2 hours	60 (12.9%)
More than 2 hours before migraine	20 (4.3%)
Total identifying alerting behavior before symptoms of migraine attack began	267 (57.3%)
Migraine symptoms usually begin before noticing dog’s behavior	199 (42.7%)

Some participants only reported one behavior in the dog, but others reported more, some more than four behaviors. Over a third of participants who noticed changes in a dog’s behavior regularly began treatment for the migraine as a result of the dog’s alert. This argues strongly that dogs may be a valuable therapeutic addition to the regimen of a migraine sufferer. For additional tasks that a migraine-alert dog can be taught to perform, see the 2015 comment by "Fuzzbutt" at the end of this blog.

UK Training Program for Seizure-Alert Dogs

Stephen Brown of the Peninsula College of Medicine and Dentistry in Cornwall, England, was one of the first medical researchers to look at dogs whose behavior was recognized as changing prior to the onset of a seizure of someone close to them, usually the master. He and a colleague, Laura Goldstein of the Institute of Psychiatry at King’s College London, describe the training regimen of dogs that are being paired with persons with epilepsy. This is the program being implemented by Support Dogs of Sheffield. The patient and the dog are admitted to an assessment center for three weeks, during which:

“The dog is trained to make an extreme focus on the person’s face, referred to as 'look at me' training. When a seizure occurs, the dog is rewarded. The reward, administered by the trainer, is usually a food treat that varies with dog, and this particular reward is only used for seizures. Depending on how many seizures occur, the dog may or may not be acquiring a seizure alert pattern after three weeks.”

The patient and the dog then go home, but video cameras record daily activities in the home. The dog should be alerting to seizures within two months of living with the patient. Dogs vary in what they do to alert, but Strong and Goldstein state that “in a typical premonitory alerting behaviour the dog will seek out the person and engage their attention by getting in their field of vision, staring at them and sometimes barking.”

The trainers of Support Dogs of Sheffield “regard the mean anticipation period for tonic-clonic seizures to be about 30 min, but shorter times, in the order of 15 min are observed with complex partial seizures. The action taken by the human after the dog alerts varies, and may for example include lying down and placing a cushion under the head, or going to lie on a bed.”

There is nothing psychic about what is going on. The researchers report that those “with knowledge of the field have been occasionally approached by journalists for opinions about psychic abilities of dogs,” some reporters suggesting that psychic ability must explain dogs that alert from other rooms than where the patient is. The researchers respond that “a dog situated in another room in the house typically enters the room and appears to check the human every 15 min or so,” and this happens whether the patient is awake or asleep. This attentiveness, rather than psychic ability, explains what is happening. Also, some dogs will go to other rooms to try to get help for the person suffering from a seizure.

As to what dogs sense when they alert, these researchers state that the “consensus from those who spend time reviewing the video evidence is that dogs probably alert to specific and subtle human behavior.” They note it is possible that dogs may detect changes in respiratory rate or even heart rate, or may detect a change in the master’s smell. Cats might conceivably detect oncoming seizures, but “the typical response of a cat would be to run away rather than stay with the person and this makes them less suitable for the role of an alert animal.”

The program costs £10,000 (about $15,000).

Large-Scale Diabetic-Alert Dog Study to Begin

Another online survey was conducted by scientists at the Behavioral Medicine Center at the University of Virginia and concerned diabetic-alert dogs. The survey gathered information from 36 diabetic-alert dog owners, 23 parents of children and 13 adults with type 1 diabetes. Over 90% of respondents reported dogs alerting to hypoglycemic episodes. Many reported significant decreases in the frequency of severe and moderate hypoglycemia since obtaining such a dog. Most also reported decreased worry about hypoglycemia and greater participation in physical activities after getting a dog. Dr. Linda Gonder-Frederick, the leader of this research team, has advised me that she will be undertaking a large-scale study of the effectiveness of seizure-alert dogs.

Legal Issues with Medical Alert Dogs

In the nature of a law school hypothetical, consider the following fact pattern:

Sarah is a diabetic and has several times gone into diabetic comas. She keeps insulin on hand at all times. She begins to notice that her pet Sheltie tries to push her to sit or lie down from ten to thirty minutes before her blood sugar gets dangerously high or low, with the result that she usually tests herself right away. She credits the dog with alerting her enough in advance that she has had a significant reduction in the number of episodes. She has never trained the dog.

Is this a service animal under federal regulations? It might depend on what agency you ask.

Taking a Medical Alert Dog into a Restaurant

The Department of Justice has issued regulations regarding the rights of individuals with disabilities to bring service animals into places of public accommodation, such as restaurants, theaters, motels, etc. DOJ defines a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” DOJ provides examples of services that service animals can perform, including “assisting an individual during a seizure, alerting individuals to the presence of allergens….” (28 CFR 36.104, emphasis added)

In the 2008 release accompanying this regulation, DOJ noted that a service animal can provide “minimal protection” by doing such things as “alerting and protecting a person who is having a seizure.” The release also refers to “protecting the handler from injury resulting from seizures or unconsciousness.” (75 Fed. Reg. 56266, September 15, 2010) The latter phrase might arguably cover a situation where a dog alerts in advance of a seizure beginning, but it is certainly not explicit.

So, is Sarah’s untrained seizure-alert dog a service animal under DOJ regulations? Arguably not, since it is not “individually trained” to perform the task of alerting, even though that task is for the benefit of a person with a disability. An argument could be made, however, that Sarah’s dog should qualify for admission to a place of public accommodation since it will alert her to a threat in time to take action that will reduce the risks associated with the likely episode.

Bringing an Alert Dog into the Cabin of a Commercial Flight

The Department of Transportation includes diabetes in a list of “physical or mental impairments” (73 Fed. Reg. 27667, May 13, 2008). The same release states:

“Generally, a service animal is individually trained to perform functions to assist the passenger who is a qualified individual with a disability. In a few extremely limited situations, an animal such as a seizure alert animal may be capable of performing functions to assist a qualified person with a disability without individualized training. Also, an animal used for emotional support need not have specific training for that function. Similar to an animal that has been individually trained, the definition of a service animal includes: An animal that has been shown to have the innate ability to assist a person with a disability; or an emotional support animal.”

In guidance issued for airlines, DOT defines a service animal as “[a]ny animal that is individually trained or able to provide assistance to a qualified person with a disability or any animal shown by documentation to be necessary to support a passenger with an emotional or mental disability.” (77 Fed. Reg. 39804, July 5, 2012).

Therefore, Sarah’s dog satisfies DOT’s understanding of “service animal” for purposes of going into a cabin of a commercial airplane. Should Sarah get a letter from a medical professional? Letters can be required for psychiatric and emotional support animals under 14 CFR 382.117(e), but that regulation provides that the letter is to state that the “passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV).” Since this is not the case with many alerting functions of dogs, the letter is not required. Nevertheless, I think it is a good idea if Sarah’s physician is willing to write it. First, it will add convincing evidence that the dog is really a service animal, not a pet that Sarah is trying to fly with in the cabin. Second, if the dog is not as well behaved as it should be, the airline staff will be less likely to invoke their right to exclude it because of disruptive behavior.

Migraines can be associated with mental illness or not, but because DOT has not referred to migraine-alert dogs in its Federal Register releases, I would recommend getting a letter for such a dog in any case.

Living with an Alert Dog

Fran Breitkopf and I analyzed the complex area of assistance animals in housing law in an article in the American Bar Association’s general practice journal, GP Solo, some years ago, which we have supplemented here on occasion. Although there are different issues at play depending on the type of housing involved, generally speaking a reasonably well-behaved assistance dog, after whom the owner picks up and keeps from disturbing the neighbors, will be entitled to a reasonable accommodation. If an apartment owner or co-op board is particularly adamant about a no-pets policy, a letter from a medical professional could be important.

For what medical professionals should include in a letter for a patient with a medical alert animal in any of the contexts discussed above, see the article that Dr. J. Lawrence Thomas and I recently wrote for the Journal of Forensic Psychology Practice, Writing Letters to Help Patients with Service and Support Animals. All of the eight issues that we list for a psychologist or psychiatrist to consider before writing such a letter are as important for a medical doctor or other professional who is not treating a patient for a psychological condition. See So What Can Psychologists Say, and What Should They Say? beginning on page 111 in the journal.

Possibility for Fraud

I was recently asked what kind of dog I would say Chloe is if I wanted to fake service dog status and, say, get her into a restaurant. After thinking for a minute, I said that I would probably call her an alert dog, perhaps a migraine alert dog. I have no obvious physical disabilities and Chloe, a highly obedient therapy dog, would not be expected to demonstrate any skill on the spot. If traveling, such a dog would make it easier to get around not having a letter from a psychologist. If asked what she does, I would explain that she paws my knee upon detecting that I may be about to have an episode. There would be no real way to check this.

This is what concerns many trainers in the service dog industry. Not all people who think like this—and unfortunately some do—will have dogs as obedient and socialized as Chloe. Disruptions by poorly trained or bogus service dogs make it harder for well-trained service dogs to be accepted in public environments. Even if an untrained animal might qualify for service dog status under the law, owners should respect the fact that other service dog users have highly trained animals that have worked long and hard to belong in public environments. (News reports recently described a dog trainer whose business ran afoul of various state authorities in New York. The trainer had been claiming to train dogs to alert to oncoming seizures.)

Conclusion

I was recently contacted by a family with a dog that recognizes the onset of precipitous and dangerous drops in blood pressure suffered by a member of the family. I wanted to know if there was any literature on this and sent out emails to some of the authors of the studies above and others. There appears to be no research on this phenomenon at present, but I have no reason to doubt that it is actually happening. Anecdotal accounts on some of the websites associated with hypoglycemia alert dogs indicate that other people are noticing the same thing when their blood pressure drops. If this continues to be observed, I suspect that it will in time be studied and perhaps a new branch of the service dog industry will begin.

I strongly recommend that people who have animals that begin to spontaneously alert to medical conditions have the dogs trained. Early studies found that dogs became so distressed at the onsets of severe seizures that they sometimes injured themselves or attacked people nearby. A few dogs even died. It is a good idea, in my opinion, to reward a dog for specific behaviors in advance of a seizure so that the alerting pattern becomes consistent. Training is also important for teaching an owner to understand how to work with a dog that is providing such an important service. More important for some, training will likely insulate the dog against claims that it is not really a service animal.

Thanks to Dailyah Rudek, Bart Sherwood, Fran Breitkopf, and Ronald Keats for comments and corrections.

For a summary of some subsequent papers on autism research and dogs, see my May 19, 2014, blog.  

Sources:

Brown, Stephen W., and Goldstein, L.H. (2011). Can Seizure-Alert Dogs Predict Seizures? Epilepsy Research, 97, 236-242.

Ensminger, J., and Breitkopf, F. (2009). Service and Support Animals in Housing Law. GP Solo, 26(5).

Gonder-Frederick, Linda, Rice, Pam, Warren, Dan, Vajda, Karen, and Shepard, J. (April 2013). Diabetic Alert Dogs: A Preliminary Survey of Current Users. Diabetes Care, 36(4), e47, doi.so.2337/dc12-1998.

Marcus, Dawn A. (February 2012). Canine Responses to Impending Migraines. Journal of Alternative and Complimentary Medicine, 18(2), 106-108.

Marcus, Dawn A., and Bhowmick, Amrita (2012). Survey of Migraine Sufferers With Dogs to Evaluate for Canine Migraine-Alerting Behaviors. Journal of Alternative and Complementary Medicine (in press).

Studies prior to 2010 are summarized in Service and Therapy Dogs in American Society, particularly at pp. 64-72.

Negligent Euthanasia at Fort Worth Pound Deprives Family of Dog: Texas Supreme Court Allows Only Trivial Compensation

Avery, the dog of Kathryn and Jeremy Medlen, escaped from their back yard on June 2, 2009, and was picked up by Fort Worth Animal Control.  The Medlens did not have enough money to pay the fees to get him out of the pound but promised to return on June 10 when they would have the money. The Medlens were told by Animal Control officials that a “hold for owner” tag had been placed on Avery’s cage to notify employees that Avery was not to be euthanized.  On June 6, an employee of the shelter, Carla Strickland, put Avery on the list of animals to be euthanized anyway. He was put to death on June 7.

Fort Worth Animal Control Main Facility

The Medlens returned for their dog on June 10 and learned his fate.  The Medlens sued Strickland, alleging that her negligence was the proximate cause of Avery’s death.  They sued for “sentimental or intrinsic value” because Avery had little or no market value, but was to them irreplaceable.  Strickland excepted to the claim for intrinsic value and the trial judge ordered the Medlens to amend their pleadings to state a claim for damages recognized at law.  The Medlins filed an amended petition but continued to seek damages based on intrinsic value.  The judge dismissed the lawsuit and the Medlens appealed.

A picture of the dog and the Medlens was published by ABC News.

An 1891 Texas Supreme Court Case  

The Texas Supreme Court had stated more than a century ago, in 1891, in the case of Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891), that dogs could be valued specially based on their usefulness or services to a master.  In that case, three dogs were poisoned.  One of the dogs was described as a Newfoundland that “was trained to signal the arrival of any person at appellees’, who could tell from his bark if the person was man, woman, or child.”  The owners of the dogs sought $25 for the loss of each of the three dogs as actual damages and $75 of exemplary damages. The Texas Supreme Court concluded in the case:

“There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. We cannot say that the verdict in this case is not based upon actual damages, and when the evidence, as it does in this case, justifies a verdict for either actual or exemplary damages, or both, we will not presume that the finding of the jury was based on grounds not proper. We find no error in the record, and report the case for affirmance.”

Fort Worth Court of Appeals

The Medlens argued that the Texas Supreme Court had on occasion accepted intrinsic or sentimental value as a basis for damages, though it had not done so in the case of a pet.  Thus, sentimental value had been allowed in City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) for the loss of family correspondence, family photographs, and keepsakes.  Intrinsic value had been allowed for shade or ornamental trees in Porras v. Craig, 675 S.W.2d 503 (Tex. 1984).  Sentimental damages were allowed for the loss of a wedding veil, watch, and other items in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963). 

In Bueckner v. Hamel, 886 S.W.2d 368 (Ct. App. 1994), plaintiff sued defendant for shooting two of his dogs.  Damages of $1,825 had been awarded in that case, more than market value, perhaps including stud value.  The appeals court accepted this valuation of actual damages but did not address whether intrinsic value was involved.  A concurrence in the case stated:

“Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”

In Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Ct. App. 2004), the Austin Court of Appeals held that a trial court could not award damages for mental anguish, counseling costs, and loss of companionship when plaintiff’s dog escaped from a groomer and was run over.  The Fort Worth Court of Appeals disagreed with “our sister court’s interpretation.” This court noted that Heiligmann had stated that dogs could be of “special value to the owner,” and argued that “the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet.”

The appellate court, applying these cases to the Medlens’ loss of Avery, concluded that “the special value of ‘man’s best friend’ should be protected,” and reversed.  Strickland, now on the hook for much more than Avery’s market value, appealed to the Texas Supreme Court.

Texas Supreme Court

The lawyers for the Medlens likely realized they had lost on the second appeal when they saw that the opening words of the Supreme Court’s opinion consisted of a quote from Lord Byron concerning a Newfoundland dog’s monument: “Beauty without Vanity, Strength without Insolence, Courage without Ferocity, And all the Virtues of Man without his Vices.”  Courts tend to adopt such flowery language when they are going to find that the law does not support the sentiment behind the quote but they want to associate themselves with that sentiment rather than the result they are actually imposing.  Such was the case here.  The Court piled it on in the first paragraph: “Even the gruffest among us tears up (every time) at the end of Old Yeller.”

The Court stated the problem it was facing:

“In today's case, involving a family dog that was accidentally euthanized, we must decide whether to adhere to our restrictive, 122–year–old precedent classifying pets as property for tort-law purposes, or to instead recognize a new common-law loss-of-companionship claim that allows noneconomic damages rooted solely in emotional attachment, a remedy the common law has denied those who suffer the wrongful death of a spouse, parent, or child, and is available in Texas only by statute.”

The Court concluded that though “relationship attachment is unquestionable,” it was nevertheless “uncompensable.” The decision of the Fort Worth Court of Appeals was held to be an unwarranted extension of the law regarding the loss of a pet. As to Heiligmann, the Supreme Court stated:   

“[A] dog's ‘special or pecuniary value’ refers not to the dog-human bond but to the dollars-and-cents value traceable to the dog's usefulness and services. Such value is economic value, not emotional value based on affection, attachment, or companionship. In short, Heiligmann's use of the word 'special' does not authorize 'special damages' and does not refer generically to a dog's ability to combat loneliness, ease depression, or provide security. The valuation criteria is not emotional and subjective; rather it is commercial and objective.”

The Court distinguished Porras, involving the destruction of shade trees, by stating that the recoverable “intrinsic value” there was the “ornamental (aesthetic) value” and “utility (shade) value” of the trees, which were “not rooted in an owner’s subjective emotions.” The gravamen of the Medlens’ claim, according to the Court, was “fundamentally a form of personal-injury damage, not property damage,” akin to loss of consortium, which is a category of recovery “available only for a few especially close family relationships.” 

“Therefore, like courts in the overwhelming majority of other states, the Restatement of the Law of Torts, and other Texas courts of appeals that have considered this question, we reject emotion-based liability and prohibit recovery for loss of the human-animal bond.”  The cases that do not fit within the “overwhelming majority” are at the end of a footnote to the statement.  They involve cases in Florida, Louisiana, and New York (Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla. App. 1978) (jury could consider mental pain and suffering when dog suffered injuries while under veterinarian’s care); Barrios v. Safeway Ins. Co., 97 So.3d 1019 (La. App. 2012) (allowing recovery for mental anguish when owner was nearby and suffers psychic trauma because “clearly, pets are not inanimate objects”); Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (Civ. Ct. 1979) (plaintiff that discovered dead cat in casket meant for her dead dog was entitled to damages beyond market value)).  (All links are to the cases as posted on the Michigan State University College of Law Animal Legal and Historical Center.  See also Note by Rebecca F. Wisch: Quick Summary of Pet/Companion Animal Damages, listing additional decisions.)

The Texas Supreme Court received amicus briefs from animal welfare organizations and noted that these organizations were arrayed on both sides of the issue, with the majority opposing allowing emotion-based damages:

“Several animal-welfare groups—organizations that understand the intense grief and despair occasioned by a pet's death—insist that relational-injury damages would adversely impact pet welfare. For example, the American Kennel Club, joined by the Cat Fanciers' Association and other pro-animal nonprofits, worry that ‘pet litigation will become a cottage industry,’ exposing veterinarians, shelter and kennel workers, animal-rescue workers, even dog sitters, to increased liability: ‘Litigation would arise when pets are injured in car accidents, police actions, veterinary visits, shelter incidents, protection of livestock and pet-on-pet aggression, to name a few.’ As risks and costs rise, there would be fewer free clinics for spaying and neutering, fewer shelters taking in animals, fewer services like walking and boarding, and fewer people adopting pets, leaving more animals abandoned and ultimately put down. The Texas Veterinary Medical Association sounds alarms of ‘vast unintended consequences,’ asserting its members would have no choice but to practice defensive medicine ‘to safeguard against potential claims of malpractice.’ The unfortunate outcome, they contend, would be higher prices for veterinary care, thus fewer owners bringing in their pets for needed treatment. Families, particularly lower-income families, will avoid preventive care for their pets, not seek needed care for ill or injured pets, and be more apt to euthanize a pet. The Texas Municipal League and other government associations worry about police officers and animal-service employees being second-guessed for split-second decisions they must make in the field when they encounter loose and potentially dangerous animals. Not all dogs are good-natured, they warn, and government workers must be free to take swift action to protect citizens rather than worrying about lawsuits that, even if successfully defended, drain finite taxpayer resources. Various insurance groups caution that expanded damages would spike the cost of insurance across the board, not just for veterinarians but also for homeowners and automobile drivers, ‘inflat[ing] the value of property loss far above that which insurance contracts have been written to cover with serious consequences for the affordability and availability of insurance in Texas.’”

These are not negligible considerations, and the Court argued that the costs of allowing damages for emotional loss in pet situations might be best be calculated with a cost-benefit analysis.  For this, the Texas legislature is better equipped than the judicial system: 

“Perhaps the Legislature will enact a more generous valuation formula for family pets. Valuation derives fundamentally from values, and elected legislators may favor scrapping the 'property' label and reclassifying companion pets as something more elevated. The Legislature has passed a wrongful-death statute for humans; it has not (yet) for animals. Given the competing public-policy considerations, we believe if there is to be expanded recovery in pet-death cases, it, too, should be confronted legislatively, not judicially.”

The Court noted that some state legislatures had put limits on non-economic damages in losses of companion animals, including Tennessee ($5,000), Maryland ($7,500), Illinois (case must involve aggravated cruelty or torture, not ordinary negligence). 

Of course, had the Texas Supreme Court affirmed the appellate court, the legislature would have received pressure from various elements in the pet industry to put a cap on the limits that could be awarded for animal loss.  This would have been a powerful force in getting the legislature to move. 

Conclusion

The opinion of the Texas Supreme Court is not to be pilloried, as the Court clearly wants the legislature to wake up and do its duty to the citizens of the State of Texas and their pets.  Nevertheless, I disagree.  The common law can and does recognize social change, and social change regarding the values of pets there has certainly been.  A change in the law to accept damages for emotional suffering is appropriate, and the legislature could then decide whether there should be limits on such awards. 

I suspect that many animal owners, myself included, would not have a problem with certain limits on recoveries.  Veterinary expenses would substantially increase if veterinarians had to pay the kind of malpractice insurance premiums that physicians pay, part of which is based on damages that can arise from emotional suffering.  Dog pounds, however, are too often poorly run, and I have covered cases of negligent euthanasia before.  The Fort Worth Court of Appeals was right to lay blame where it belonged and place monetary responsibility on those who were careless. 

Strickland v. Medlen, 2013 WL 1366033 (Texas 2013), reversing No. 02-11-00105-CV (Tex. App. Dist. 2 2011). 

Thanks to Suzanne Boule for thoughts on this issue.  She says that kill shelters are virtually unknown in France and Germany.  Thanks also to Dennis Civiello for noting that one should check out the positions of various canine organizations on such issues in deciding where to donate or bequeath.  You might learn that an organization does not have animals in mind as much as its own revenue sources. 

Sidestepping the Supreme Court: High Electrical Usage Justifies Front-Door Sniff in Texas

Sergeant Robert Clark, working on a narcotics task force, initiated an investigation of a grow house in December 2010 after receiving an anonymous tip.  The tip was that hydroponic marijuana was being grown at a house near Houston, Texas, in Harris County.  He drove to the location to determine whether he could observe indicators of a grow house.  In addition to seeing a vehicle belonging to the individual about whom the tip had been given, the Texas appellate court states:

“At the address, he observed the windows were tightly covered; the yard was a little unkempt; and even though two vehicles were in the driveway, the home appeared vacant, all of which are typical indicators of a grow house. He traveled to the home several more times that week in a ‘drive-by surveillance,’ and on each of these occasions, he observed other indicators typical of a grow house, such as exterior lights on during the daytime hours and no vehicles on the premises. On one of these occasions, he saw another vehicle, registered to appellant, leaving the home.”

Sergeant Clark executed a subpoena on Centerpoint Energy and learned that the electrical usage at the home was unusually high, and had increased significantly from March 2010 to December 2010.  Prior to March, usage had been low, indicating either that it had been vacant or possibly that the electrical meter had been bypassed, which is common with grow houses.  Later, it was established that the meter had been bypassed, then repaired, resulting in the increased usage from March on.  Centerpoint Energy listed the account for the home in the name of Wesley Jerome Wright.

The court’s narrative of events describes the use of a narcotics detection dog:

“On December 6, 2010, Sergeant Clark initiated a ‘knock and talk’ investigation at the home. When he arrived, he observed a vehicle registered to appellant in the driveway, the blinds to the home tightly closed, and the home's exterior lights on during day-time hours. Sergeant Clark called other uniformed law enforcement officers for assistance, as well as a narcotics-detection dog. Once other officers, including Deputy James Savell, arrived on the scene, they approached the home in raid gear and prepared to raid the home. The officers knocked several times without any response. They heard music inside the home. At the front door, they detected the odor of ‘skunk weed,’ a strong-smelling type of marijuana. Once the officers detected that odor, and after knocking again at the door with no response, the narcotics-detection dog was asked to conduct an “open air sniff” of the exterior of the front door; the dog alerted to the presence of marijuana. Deputy Savell then left the premises, sought and obtained a search warrant of the home, and returned to the scene.”

The warrant was then executed:

“Armed with a search warrant, the officers again approached the home in raid gear, knocked on the door and received no response. They entered and once inside, officers detected the strong odor of marijuana and saw that a bedroom and garage had been converted to hydroponic grow rooms containing in total 155 live marijuana plants, with an estimated value of $138,000. Another room contained marijuana that already had been dried and harvested. Officers observed equipment and supplies associated with hydroponic marijuana cultivation and packaging. The rooms of the home were insulated and carefully controlled with lighting, ventilation, and temperature apparatuses. Two of appellant's separate fingerprints were identified and lifted from a metal halide light shroud in one of the growing rooms. The kitchen had no food and very few typical kitchen items. The home contained little furniture and no clothing, and appeared as if no one had lived in the home recently. There was one bed, but it did not appear as if anyone had slept there because it was covered with other items. Inside the home, officers found documents, some of which were dated over one year old, belonging to several other individuals. According to officers who executed the search warrant, although a single person could tend to a hydroponic operation of this complex scale, that person would need to be at the home at least every one to two days.”

A neighbor told Sergeant Clark that he had seen Wesley Wright at the home the day before, and he was able to give a history of Wright’s use of the home, initially with his wife, then after Wright’s divorce with other people.  An arrest warrant was issued for Wright a week after the raid and Wright turned himself in to authorities. 

Wright filed a motion to suppress with the trial court, arguing, among other things, that the dog’s open-air sniff was a warrantless search without probable cause that was prohibited by the Fourth Amendment.  Wright presented some evidence that he had leased the premises from February 2010 but kept the electrical bill in his own name because of the tenant’s poor credit.  Wright’s current wife stated that she and Wright had gone to collect rent or tend to the yard on occasion but had not entered the house.  She testified that they left a car overnight outside the house once because it would not start, but her testimony was inconsistent with some of that given by the neighbor.  The police were unable to locate anyone with the name that Wright gave them for the tenant, and they question whether such a person even existed. 

A jury found Wright guilty of a narcotics offense and he was sentenced to eight years in prison.  He appealed.

Appeal

Among other issues raised on appeal, Wright argued that:

1. Sergeant Clark lacked probable cause to conduct a “knock and talk” investigation.
2. Though the alert of a trained and certified narcotics-detection dog provides probable cause for the issuance of a search warrant, this court could not consider the statements in the affidavit regarding the narcotics-detection dog.  This is because the officers lacked reasonable suspicion that drugs or contraband were at the location before using the narcotics-detection dog, and without the alert by the narcotics-detection dog, the affidavit does not show probable cause for issuing a search warrant.

These arguments were not made during the trial, however, and the appellate court determined that Wright had “thus failed to preserve error as to these complaints.”  Also, on appeal, Wright “has not asserted his trial-court arguments that the use of the narcotics-detection dog itself was an impermissible search or that probable cause was required before the officers could use the dog.  Thus, these arguments are not before this court.” It is not clear why Wright’s counsel did not preserve these issues for the appeal. 

As to the effect of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which had not been issued before appellate briefs were filed in Wright, the Texas appellate court stated:

“The information in the affidavit other than the statements regarding the narcotics-detection dog was acquired independently from the use of the dog and in a lawful manner. Thus, even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, the search warrant would not be rendered invalid if, putting aside the statements in the affidavit regarding the dog, the remaining information in the affidavit clearly established probable cause.”

The non-canine evidence in the affidavit included:

“(1) information from a credible and reliable source indicated the electrical power meter at the home had been bypassed and altered to display a lower usage reading; (2) Sergeant Clark knows, via training and experience in investigating indoor hydroponic marijuana-growing operations that electrical meters are often bypassed to avoid detection; (3) information from a credible and reliable source further indicated that Centerpoint Energy Company fixed the meter in February 2010; (4) once the meter was repaired the power usage sharply increased to rates roughly five times that of adjacent houses of similar size; (5) every window in the residence had mini-blinds that were tightly shut, which was known to Deputy Savell to be a common characteristic of marijuana grow houses; (6) area residents reported that individuals were only at the house on a sporadic basis, which was known by Deputy Savell to be a common characteristic of marijuana grow houses; (7) a vehicle registered to appellant was observed at the residence; and (8) appellant has a prior arrest and conviction for narcotics distribution.”

Thus, Justice Kem Thompson’s majority opinion concluded:

“Even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, we would conclude that under the totality of circumstances the remaining information in the affidavit would clearly establish probable cause that contraband or evidence of a crime would be found at the described location.”

The court therefore affirmed Wright’s conviction.

Dissent

Justice Tracy Christopher dissented, arguing that she “would hold that, after removal of the dog sniff alert from the affidavit, the remaining facts in the affidavit are insufficient to clearly establish probable cause.”  She agreed that the removal of the evidence from the illegal search could arguably leave enough other evidence to establish probable cause, but argued that this was not true here.  She noted that Jardines involved similar information:  “an uncorroborated crime stoppers tip that marijuana was being grown at the house, tightly closed blinds, and an air conditioner that kept cycling without stopping, indicating high electrical usage.” 

As to the anonymous tip, Justice Christopher said that “Clark never established the informant’s credentials in any meaningful way.”  This should perhaps have been of more concern to the trial court. 

As to the electrical usage, the affidavit did not establish how it was calculated that the house’s usage was five times what would be expected in the neighborhood. The mini-blinds that were “tightly drawn” and the testimony of individuals being seen at the house on only a sporadic basis were “innocent facts,” according to the dissent. 

The vehicle sometimes parked outside the house was not associated with any crime. 

Justice Christopher concluded:

“In sum, we have uncorroborated, possibly stale, excessive electrical usage, closed blinds, and sporadic sightings of the residents of the house. This cannot be enough to clearly establish probable cause that a crime is being committed. Because the majority concludes that it is, I dissent.”

Jardines

The authors are preparing a law review article analyzing Jardines, along with Harris, the other police canine case issued by the Supreme Court in the last term and will reserve a more complete evaluation of those decisions for that venue. 

The Supreme Court opinions in Jardines, both the majority opinion, the concurrence, and the dissent, largely restricted their debate to the issues surrounding the use of the dog.  To get more of the non-canine facts, one must look at the prior trail of appellate decisions, particularly that of the Florida Supreme Court (Jardines v. Florida, 73 So.3d 34 (Fla. 2011).  The affidavit submitted to obtain the warrant in Jardines consisted of the following:

1. A “crime stoppers tip that marijuana was being grown at the describe residence.
2. Surveillance at the residence included the observation of “no vehicles in the driveway.”
3. The officer “observed windows with the blinds closed.”
4. The smell of live marijuana plants was detected when the officer was on the front porch with the dog.
5.  The officer “heard an air conditioning unit on the west side of the residence continuously running without recycling.”

Thus, the only significant differences between the facts of Wright and those of Jardines were the greater effort made in Wright to determine the pattern of electrical usage of the premises and the description of the visits of the defendant by one of Wright’s neighbors.  Whether this is enough to justify the opposite result to that mandated by the U.S. Supreme Court may be determined in subsequent appellate proceedings in Wright. 

Conclusion

It often takes years for the significance of a Supreme Court decision to become apparent.  Because the Court was so divided in Jardines, lower courts may feel less constricted in applying its pronouncements to situations that are similar.  Police will want to get more evidence before they bring a dog to a front porch than was the case in Jardines, but how much more will only become clear as courts handle variations in facts of front-door sniffs in the coming years.  It should not be assumed that the same facts as in Wright will lead to the same result in other jurisdictions. 

Wright v. Texas, No. 14-12-00285-CR, 2013 WL 1908932 (App. Ct. 2013).  On “knock and talk” as an investigative technique, see Craig Bradley, “Knock and Talk” and the Fourth Amendment, 84 Indiana Law Journal 1099 (2009).

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