Nazi Myth Transformed German Shepherds from Sheep Dogs into Tame Wolves

The German shepherd is a relatively recent creation. The Society for the German Shepherd Dog (Verein fur deutsche Schaferhunde) came into existence in 1899 in Stuttgart, the concept of a retired Prussian cavalry captain, Max von Stephanitz (1863-1936). Sheepdogs in that area were rather polymorphous and were not recognized as a breed, and the Society resolved to change this. The first German shepherd was not exhibited until 1907, but by 1923 there were 50,000 members of the Society, and its popularity had already spread well beyond Germany. The breed was recognized by the American Kennel Club in 1927.

The Aryanism of the German Shepherd

Captain Stephanitz saw his breed as distinctly German, but breeders and owners in other countries venerated the dog for its purity of blood, bravery and loyalty, a dog soldier. German shepherds became popular with police departments in Germany and elsewhere, and an historian at Brigham Young University, Aaron Skabelund, suggests that the dog began particularly to be associated with imperialistic regimes, and even to become a symbol of racism and repression. Skabelund describes German shepherds as being “extremely conspicuous in the maintenance of power.”

In his massive volume, The German Shepherd Dog in Word and Picture, translated into English in 1923 (Anton Kampfe, Jena), Stephanitz wrote that "the German is a real dog-lover, for it is part of his nature ... to enter into the spirit of the Aryan mysticism, which makes us feel at one, interiorly, with clouds, trees, lake and heath, and with all living creation.... This appears in his religious beliefs, for the eagle and the wolf were dedicated to All-Father Wotan, King of Battlefields, Bestower of Victory.... [H]is wolves ... roam the battlefields, crouch at his feet, and are cared for by the Lord of the World himself.... [T]wo stones with bason-like hollows were erected to the right and the left of the ancient altars of sacrifice, from which poured the blood of the sacrifice which had been offered in honour of Wotan, so that his wolves could feast on the entrails of slaughtered enemies."

Stephanitz contrasted this "Aryan" attitude towards canines to that of the Jews:

"In ancient Rome as well, and in Assyria, Babylon and Egypt the dog stood in high esteem. Not so with the ancient Jews however; to them the dog was 'accursed', therefore a part of the later and present day contempt and hostility of the Aryan people for the dog can be traced back to the great influence of the Jews, which in Christian times somewhat altered itself and preferred to act in a manner which was skulking and therefore typically Jewish. In the Old Testament we scarcely ever find the dog in the service of man; on the contrary, more often than not we find him mentioned in a way that makes him hateful and accursed. That this could be the case even in the oldest relics of a genuinely pastoral people, as the ancient Israelites originally were, ... is at any rate an indication of a lack of sympathy between dog and Jew. It could be attributed to the very old feeling of fear and hatred which this unwarlike, pastoral people had for the wolf, and naturally for his successor the dog, and by reason of which they cursed him as the spoiler of their goods, treating him thus in a manner quite unlike that of a hunting folk who were both warlike, and knew how to respect their enemy."

Stephanitz clearly thought the Jewish attitude had affected some "Aryans." Sexism can also be found in Stephanitz’s writings. He said that a German shepherd only renders obedience to the master of the house, “for when a man is in the house, he only obeys the woman with reservations.”

In World War I, German shepherds were mobilized by a number of countries and served in national and colonial armies. Between the wars, the breed so quickly dominated law enforcement that in many places it is still just called the “police dog.” The “Germanness” of the dog obviously appealed to the Nazis, who made it into an icon of the Third Reich. They were picking up on the views of Stephanitz himself, who as noted above had seen the dog as reflecting the character of the Volk and described it, despite its mixed origins and recent breed status, as having an ancient and intimate relationship with Germans. Hitler named his first German shepherd “Wolf.” In Hitler's Table Talk, 1941-1944, Hitler is recorded saying:

"I love animals, and especially dogs.  But I'm not so very fond of boxers, for example. If I had to take a new dog, it could only be a sheepdog, preferably a bitch.  I would feel like a traitor if I became attached to a dog of any other breed.  What extraordinary animals they are—lively, loyal, bold, courageous and handsome!"

Shepherds were used by the Nazis to control prisoners of war and guard concentration camps.

The German Shepherd in the Axis

Germany’s alliance with Japan entered the history of the German shepherd. Stephanitz wrote the president of the Society for the Preservation of the Japanese Dog, Saito Hirokichi, that German shepherds and Japanese dogs were closely related, both moving from central Asia, but in different directions (again, possibly true but if so true of all dogs). Despite this praise from Stephanitz for Japanese dogs, Japanese military authorities seem to have preferred German shepherds, importing thousands of them with the help of Stephanitz. In the annexation of Manchuria, two German shepherds being used as messenger dogs, Kongo and Nachi, became Japanese national heroes for supposedly joining a battle, killing a number of enemy soldiers, and giving up their own lives. The Japanese army had 10,000 military dogs by 1944, and used them as messengers, sentries, draft animals, trackers, and patrol auxiliaries. Perhaps 90% of Japanese military dogs were German shepherds (shepado).

The Japanese military’s use of the dogs makes them unpopular still in areas once subjected to Japanese aggression, such as Korea and China. (See Aaron Skabelund, Breeding Racism: The Imperial Battlefields of the “German” Shepherd Dog, Society and Animals, 16, 354-371 (2008).)

The Incipient Guide Dog Movement

Learning that some of his colleagues in the Society were training veteran ambulance dogs to guide wounded veterans of World War I, Stephanitz expressed his doubts. 

“There is a certain connection between the Ambulance dog and the blind man’s dog.  The Ambulance dog Association therefore took up this Service dog type and devoted its considerable resources to secure its training.  According to the statement of blind people who have used such a leader for any considerable time, our shepherd dogs are said to be especially fit and reliable in that service.  The blind man and his dog have been a familiar feature in our streets for some time; formerly, it is true, the dog, generally a poodle, was only known as the receiver of gifts with the hat in his mouth, but the blind-man’s dog of the present day is not used for such a purpose; he must rather be the eyes of his master, lead him safely through the maze of traffic, and promptly call his attention to unevenesses in the road, and obstacles in the traffic, by sitting down.  Experience has proved that a careful training develops the dog to this extent, but again, in this respect, it depends entirely on the leader how long he remains efficient or, vice versa, how soon he becomes slack.  But this leader is a blind man, who unfortunately cannot see, and therefore cannot correct the faults of the dog; accordingly we must not build too fond hopes on the efficiency of these dogs for the sake of the poor blind people themselves, to save them disappointment.  At all events, we cannot lay down a hard and fast rule, for although such an animal may be useful under favourable circumstances with an animal loving blind man—preferably in the country and in small country towns—he can, and must be equally useless under other conditions, as for instance, in the traffic of a great city and in the keeping of a careless man with no real sense for the dog.  In such cases the dog, instead of being a help to the blind man will become a danger.  For my part, I regard him chiefly as a companion for his master to be a source of comfort and pleasure to him in his quiet lonely hours.” 

It was not long after the italicized words were written that they were given the lie, as indicated by the experience of Dorothy Harrison Eustis.

Behavioral Study Debunks Wolf Similarity

One research project on ancestral behavioral patterns in dogs found that the fact that German shepherds have been bred to have the physical appearance of wolves does not mean that wolf-like behavior has come back into the breed. Describing the German shepherd and the Shetland sheepdog, the researchers state that "the physical appearance of these two breeds is more wolf-like than their behavioural scores would predict, suggesting that once a behaviour has been lost from the repertoire it cannot be reconstructed merely by altering the physical appearance of the breed. The German shepherd, which was developed from shepherding stock with the deliberate intention of producing a physically wolf-like animal..., displayed fewer wolf-type signals than did the Siberian husky and the golden retriever." D. Goodwin, J.W.S. Bradshaw, and S.M. Wickens (1997). Paedomorphosis Affects Agonistic Visual Signals of Domestic Dogs. Animal Behaviour 53, 297-304. Stephanitz must have rolled over in his grave (assuming corpses have access to scientific journals).

As has happened with pit bulls in the United States, the glorification of a breed by the wrong people for the wrong reasons can do more harm than good.

Additional Notes

Writing about 1890, Rawdon Briggs Lee described the German national favoritism with regard to dog breeds as being divided between the Great Dane and the Dachshund, both of which had become so popular in England as to be widely admired there as well. Lee makes no mention of the German shepherd dog sharing German national affections, which he might have had to do had he been writing a decade later. R.B. Lee, A History & Description of the Modern Dogs of Great Britain & Ireland (Sporting Division) (1893). Horace Cox, London, 1893, at 186, 530.

I revised this blog in December 2011 because I had received several emails saying that I was unjustly suggesting that Stephanitz was a Nazi. He was not, and died in 1936, before the worst atrocities of the Nazi regime. There are websites stating that Stephanitz was ruined by the Nazis. Nevertheless, as Joachim Köhler argued in Wagner's Hitler (Polity Press, 2000), some responsibility for those atrocities can appropriately be projected backwards to those who refined or repeated the philosophy that ultimately led to the death camps. As the descendant of German Americans who arrived in America in the late 18th century but many of whom continued to speak German until the early 20th century (including my father, whose Missouri village was told to stop speaking the language when America entered the First World War), I have asked all my life, as my father did, how far guilt can or should extend. I am also aware that Stephanitz made many valuable contributions to the study of dogs. The matter is not simple. Even those who attempted to correlate their own thinking with the Nazi philosophy, such as Martin Heidegger and Carl Jung, could be brilliant men.

In Conflicts Between Packs of Feral Dogs, Generals Know Who Will Watch Their Backs

Some of the most interesting work on the social behavior of feral dogs has been done in Italy. (See particularly the many interesting papers of Luigi Boitani on feral dogs in the Apennines. The picture shows such a dog.) Continuing this focus of Italian research is a recent paper by two scientists from Parma and one from Rome, looking at the participation of members of a feral pack in conflicts with another pack.

In any conflict between groups of animals, some animals will cooperate in the attack or defense, but others will shirk the responsibility. Anyone who has seen a war movie knows this, and it is true of dogs as well. With dogs, like humans at war, the entire pack may benefit from the actions of a relatively small number of aggressive individuals. Cooperation is important for a group, particularly for a smaller group in conflict with a larger group, and the shirking of responsibilities by eligible participants—called “cheating” in the recent research—can have negative consequences for the group.

Groups of feral dogs have a complex social organization with a dominance hierarchy. The researchers noted that conflicts are more likely to be instituted by a group if the opponent has a lower ratio of potential fighters to companions (noncombatants). The research was done in a suburban area, traditionally called Muratella, on the southwestern outskirts of Rome. The area included a nature preserve, Tenuta dei Massimi, with grasslands and wooded areas. Dogs used this area to find resting sites and establish dens for puppies. Food, generally meat from a slaughterhouse, was brought to a central road by volunteer dog caretakers in the early morning.

There were about 100 adult dogs in the area, generally not socialized to humans though dependent on them for food. Dogs were periodically trapped, sterilized, and then returned to the area by civic authorities, but there were still many intact animals during the period of the study, which began in May 2007. There were 11 packs in the area, three of which the researchers focused on and named Corridoio, Curva, and Piazza. The individuals in the groups were sexed by genital morphology, but when this was not apparent, by how high they raised their hindlegs in urinating. Corridoio had 11 individuals, Curva 10, and Piazza four. In November 2007, Curva pack absorbed another pack of six dogs, making it the largest group.

Dogs were watched in daylight hours through binoculars. Two groups within a few hundred meters of each other meant an intergroup conflict might occur. Interindividual distance tended to decrease between a group’s members as they got closer to another group (closing ranks as it were). A pack member was considered to be actively participating in an intergroup conflict if it moved forward at least 10 meters and lunged at opponents when the two packs were less than 20 meters apart. Most interactions did not actually involve aggressive physical contact—jumping on, scratching, biting—but rather threatening displays with furious barking and snarling, staring, and with raised tails.

An individual was regarded as defecting if it was within 50 meters of companions at the time a conflict was initiated but did not approach opponents aggressively. Individuals who approached opponents after the conflict without showing signs of aggressiveness were also scored as defecting. A “leader” in a conflict was defined as the dog that came closest to opponents, by at least half a body length over other companions, or as the only dog to have physical contact with opponents. A leader was not discernible in about half the interactions.

Packs responded to a threat in four possible ways: (1) retreat, (2) counterattack, (3) bark defensively without approach, or (4) display no response. A pack was regarded as having lost if it retreated or obtained no access to food when the contested resource was food. The researchers spent 1,147 hours in the field in 2007 and 2008 and observed 392 intergroup conflicts.

The researchers found that specific dogs were more likely to participate in conflicts the more “affiliative partners”—something close to friends—they had in the group. Close kinship was often involved in such relationships, as has also been observed in wolves. Thus, dogs that know they have friends to back them up are more likely to enter conflicts with other groups. A major finding of the study was that the proportion of cooperating animals within a pack tended to decrease with an increasing number of pack members present. Thus, cooperation tends to decrease as winning appears more likely. Some dogs may realize that their contribution will not be necessary and prefer to avoid the risks involved. Bonanni, R., Valsecchi, P., and Natoli, E. (2010). Pattern of Individual Participation and Cheating in Conflicts Between Groups of Free-Ranging Dogs. Animal Behaviour 79: 957-968.

2011 Paper. Bonanni and fellow researchers published a paper in the January 2011 issue of Animal Cognition describing the ability of packs of dogs to assess the size of an opposing group relative to the size of their own group. The authors state:

"The overall probability of at least one pack member approaching opponents aggressively increased with a decreasing ratio of the number of rivals to that of companions. Moreover, the probability that more than half of the pack members withdrew from a conflict increased when this ratio increased. The skill of dogs in correctly assessing relative group size appeared to improve with increasing the asymmetry in size when at least one pack comprised more than four individuals, and appeared affected to a lesser extent by group size asymmetries when dogs had to compare only small numbers. These results provide the first indications that a representation of quantity based on noisy mental magnitudes may be involved in the assessment of opponents in intergroup conflicts and leave open the possibility that an additional, more precise mechanism may operate with small numbers."

Bonanni, R., Natoli, E., Cafazzo, S., and Valsecchi, P. (2011). Free-Ranging Dogs Assess the Quantity of Opponents in Intergroup Conflicts. Animal Cognition, 14(1), 103-115.

Police Dog Bites Are More Serious Than Bites by Pet Dogs and More Often Result in Hospitalization and Surgery

Do bites by police dogs differ from bites by pet dogs? Without having thought at all about it, I probably would have assumed that the difference would come from the fact a police dog is often trying to subdue someone who is running away, while a house pet might be inclined to bite someone playing too rough or too long, or doing something else the dog doesn’t like. There are other differences, according to a trauma physician who looked at records of bite victims of the Los Angeles Police Department K9 Unit form 1988 to 1990. Dr. Meade also looked at bite victims at the King-Drew Medical Center, an LA inner city public hospital.

Police dog bite victims were bitten multiple times 73% of the time and hospitalized 42% of the time, while domestic dog bites were multiple only 16% of the time and resulted in hospitalization 6.9% of the time. Police dog bite victims were male 98% of the time and female only 2% of the time, while with domestic bites the victims were male 69% of the time and female 32% of the time. Children under 13 were bitten by police dogs almost never (0.2% of the time), while 74.8% of police dog bites were of individuals from 13 to 29 years old. Domestic dog bites were of children 29% of the time and were spread more evenly across age ranges. Police dog bites involved angiograms 8.9% of the time and operations 4% of the time, while angiograms were rare (0.1%) in domestic dog bites, and operations resulted 2.3% of the time.

Police dogs in the study were generally of larger breeds, such as Malinois and Dobermans, weighing from 70 pounds up. The dogs were taught to bite down hard, using their full mouths, including incisors in the front and molars at the back in order to strengthen their hold on a suspect. They were trained to “bite and hold,” i.e., not to let go until commanded to do so. Officers generally allowed dogs to continue to bite suspects as long as they struggled and fought to free themselves. This is called “bite until passive.” There were other differences. Police dogs bite the torso or limbs close to the torso, while domestic dogs more often catch a hand. The figure above shows the percentage of bites by body area, with police dog bites on the left and domestic dog bites on the right.

There were racial patterns. Caucasians made up 41% of LA County under the 1990 census but received only 7% of police dog bites. Hispanics made up 37% of the county population and were 32% of police dog bites. African-Americans made up 10% of the county population, yet were 60% of police dog bites. The article did not look at deployment patterns of police dogs and contained no discussion as to the disparity in the ethnicity of police dog bite victims. Judges have sometimes questioned whether racial factors might be present in the use of police dogs. See the dissent of Judge Logan of the Tenth Circuit in U.S. v. Moore, 22 F.3d 241 (10th Cir. 1994), questioning whether sniff searches at the Albuquerque train station might have indicated racial profiling. See also Chavez v. Illinois State Police, 27 F.Supp.2d 1053 (N.D. Ill. 1998), where the basis of a civil rights action concerned possible targeting of African-American and Hispanic motorists for drug sniffs.

Peter C. Meade, Police and Domestic Dog Bite Injuries: What Are the Differences? What Are the Implications about Police Dog Use? Injury Extra 37(11), 395-401 (2006). DNA testing has begun to be used to determine if a specific dog was involved in an attack. This could be useful in eliminating the need for rabies vaccinations in some cases. Brauner, P., Reshef, A., and Gorski, A., DNA Profiling of Trace Evidence--Mitigating Evidence in a Dog Biting Case. Journal of Forensic Sciences 46(5), 1232-1234 (2001). Matching a dog's mouth to bites is complicated as density of tissue and other factors can affect the bite pattern. See Bush, M.A., Thorsrud, K., Miller, R.G., Dorion, R.B.J., and Bush, P.J. (2010). The Response of Skin to Applied Stress: Investigation of Bitemark Distortion in a Cadaver Model. Journal of Forensic Sciences, 55(1), 71-76.

Car Bomb Fragments Hold Enough Scent for Trailing Dogs to Follow Terrorists

A car bomb detonates on a roadside and destroys half of an American tank as it passes by. Parts of the steering wheel from the car holding the bomb and alligator clips from the bomb itself are recovered by a forensics team within an hour. A scent transfer unit is used to extract scent from the surface of the steering wheel and from an alligator clip. Three hours after the explosion, two bomb dogs arrive. One is scented to the gauze pad made by the STU using the fragment of the steering wheel. The other is scented from a pad created by the STU from the alligator clip. The first dog trails towards a village half a mile from the explosion site and into a small house where three men are sitting. The dog alerts to one of the men. The second dog takes a somewhat different path into the village and goes into a government building where it leads its handler to an empty office.

What are the odds that a dog will follow the trail of the man who drove the car to the location of the explosion by being scented on the pad created from the steering wheel? What are the odds that the other dog would follow someone who participated in making the bomb? The answer to each question is, according to recent research, better than 90% (94.3% under specified experimental conditions). What are the odds that a dog will alert to someone who participated in the bombing? According to the same researchers, 82.2% (somewhat less where trailing does not begin at the blast site). These results were obtained in a study conducted near Phoenix, despite the fact that decoys, debris collectors, cameramen, and researchers were laying tracks over those of the driver and the bomb maker before the dogs began trailing.

The research assumes that highly trained identification dogs are available (this is not explosives detection work) and provides a very strong argument that experienced canine-human teams should be available for deployment to locations where car bombs and IEDs have been detonated.

Car Bomb Experiment. A peroxide-based car bomb with a 5 kg charge of liquid peroxide and liquid nitromethane, boosted by a two ounce piece of C4 with an electronic blasting cap was placed in the front passenger floorboard of a pickup truck, along with a nylon bag and simulated IED componentry, such as wires, duct tape, alligator clips, and a metal box. Post-blast debris was collected by three individuals who were present at the start of each trial for dismissal by the dog. The post-blast debris used for human scent sources was the steering wheel, driver’s side, door, and the nylong bag. Scent was collected with a scent transfer unit (STU-100), run at the highest setting for one minute. Gauze pads were placed in glass jars.

Prior to detonation, one human target (called “Terrorist” in the study) handled the nylon bag and IED componentry, while another (“Driver”) was seated inside the driver’s seat of the pickup, handling the steering wheel and column, the driver’s side mirror and the door. Both targets then walked from the vehicle into the village, about half a mile, and then did a Y split and separately entered buildings. These targets carried GPS units to document their paths from the blast site to the end of the trail. The experiment was conducted in southwest Arizona.

Six other people were in the experiment area as decoys while the Terrorist and Driver were running their trails. Three camera crew members were at stationary locations, and two researchers were present for documentation. The canine teams did not know the identities of the decoy, the two researchers, and the two targets. In order for a canine team to successfully complete the exercise, the dog would have to follow the trail of the target odor, ignore non-target humans in the experiment, and identify the specific target without prior knowledge of direction of travel or the identify of the specific target.

Thirteen canine-handler teams were involved in various parts of the study. The dogs had been trained in scent trailing, not tracking, and could thus work at some distance from the footsteps of the individuals trailed. Dogs were from one year to ten and a half years of age, with varying degrees of training and experience. Seven of the dogs had been certified by the Bloodhound Handlers Coalition.

Trailing began about four hours after the trails were walked by the targets. Post-blast collection operations and repositioning of cameras laid cross tracks over the trails previously laid by the targets. The canine teams were started at the front bumper of the truck and presented with a scent source without any information on the direction of the trails walked by the targets.

IED Experiment. Improvised explosive devices can be powerful enough to damage even heavily armored vehicles (as shown in the Department of Defense photo above, an incident unconnected with the experiments described here.) The researchers created a roadside device from two 60 mm mortars, boosted with a two ounce piece of C4. The mortars were placed about 15 ft from the passenger side of a delivery truck in a hole dug by hand about 4 inches deep. A lunch pouch containing a walkie talkie, wires, and alligator clips was also placed in the hole to simulate IED componentry. Post-blast collection was conducted by 25 people walking a grid in all directions from the blast site. Here also the two individuals collecting scent were present at the start of each trial for dismissal by the dog. Debris used for scent sources were pieces of the woven handle of the insulated lunch pouch.

Prior to detonation, the lunch pouch and componentry were handled by two targets, one of whom, Target 3, walked a trail from the blast site into the village and into a structure in the village. Target 4 was taken to a stationery school bus, then walked to another structure. These targets were also equipped with GPS units. Two camera crew members were at stationery locations in the experiment area as were additional researchers present for documentation purposes. Again, the canine team had to follow the trail of a target, ignoring non-target humans, and identify the specific target without prior knowledge of direction of travel or the identity of the target.

Trailing began about three hours after the trail was walked by Target 3. The second part of the experiment began six hours after the trail was walked by Target 4. Target 4 did not begin walking from the blast site but from a roadside device at a school bus some distance from the blast site.

Results of Car Bomb Experiment. The researchers noted that the scents of both human scent targets were probably commingled on post-blast items. Thus, it was not considered incorrect for a canine team scented on the “Terrorist bag” to identify the driver. All canine teams properly dismissed decoys and researchers as target human odors, though one dog displayed aggressive behavior towards a cameraman and the exercise was terminated. The dog had been following the correct trail, however. In sum, 12 of 12 dogs followed the correct odor trail, but only eight of 11 made a correct identification at the end of the trail. Thus, 100% of teams followed the correct trail, but 72.7% made the correct identification.

Results of IED Experiment. In the first part of this experiment, both human scent targets handled the same IED componentry. Some dogs followed the trail of Target 3 and identified him, but other teams, because of a change in the wind, followed the odor trail of Target 3 but picked up the odor of Target 4 at a turn in the trail and identified Target 4. Both identifications were considered correct. No false identifications were made of the decoy and two researchers near the building containing Target 3, but one team did not follow the correct human odor trail away from the blast site. Thus, 91.7% of teams followed the correct trail and the same percent correctly identified the target.

In the second part of the IED experiment, ten of 11 teams correctly trailed to the area where Target 4 was located but only five of these teams correctly identified Target 4, while one team identified Target 3 (still correct because of joint handling of componentry). Two teams falsely identified decoys, which only happened in this part of the experiment. Thus, the teams were 91% correct on trailing but only 54.5% correct as to identification.

Summary of Results. Combining the car bomb experiment and the first IED experiment produces an overall success rate of identification of 82.2%, but incorporating the second part of the IED experiment as well lowers the overall success rate to 73.5%. The article says little about how the dogs identified the targets, but does mention that in two cases the handlers apparently forced identifications. There were a total of 25 correct identification and two false identifications in all segments of the experiment. Canine teams followed the correct trails in 33 of 35 trailings, giving a success rate in trailing of 94.3%.

The research study was conducted by three researchers from Florida International University. Allison M. Curran, Paola A. Prada, and Kenneth G. Furton, Canine Human Scent Identifications with Post-Blast Debris Collected from Improvised Explosive Devices. Forensic Science International 199 (2010), 103-108.

Perhaps some speculation concerning the evidentiary significance of this research is appropriate. Of course, the courtroom value of the evidence might be affected by whether it would be introduced in a military court. Quite likely, in a theater of war, this approach would be used to arrest suspects, but not to conduct full trials without additional evidence. The fact that there were 25 correct identifications and only two false identifications suggests a diagnostic ratio, for forensic purposes, of 12.5. This puts the evidence into a significant category and into the range of human visual lineups. The scent from the steering wheel, however, might be of limited value since scents on the wheel could be from anyone who drove the car, not just the driver who put it near the road where it exploded. Although the dogs might begin trailing at the location of the explosion, in a relatively contained environment such as a rural village, an argument could be made that other drivers might have walked near the location.

Additional Note. An article set to appear in the Journal of Forensic Sciences in 2012, by Shate G. Hoffman, Shawn E. Stallworth, and David R. Foran, Investigative Studies into the Recovery of DNA from Improvised Explosive Device Containers (2011: DOI: 10.1111/j.1556-4029.2011.01982.x), concludes that "recovering DNA from IED containers is a viable approach for aiding in the identification of those who may have been involved in an IED event."

Attacking Probable Cause from a Drug Dog’s Alert: Look at the Dog’s History and Check the Dashboard Video

A Salt Lake City police officer was staking out a house for drug and gang activity. He checked the plates of a Cadillac parked in front of the house and found that it lacked insurance and its registration had expired. When a man and a woman got into the car and began to drive away, the officer stopped them. Two minutes later an officer arrived with a K-9 patrol dog with narcotics detection training. This officer thought the car matched the description given of a vehicle involved in a robbery. While the first officer’s questioning continued, the second brought his dog to the passenger side of the Cadillac, where, according to the handler, the dog alerted. The handler then allowed the dog, named Oso, inside the car where the handler said that he alerted to the front seats. He opened a fanny pack on the seat and found a Ruger semiautomatic handgun.

The driver, William Vincent Clarkson, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1) (“It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm or ammunition….”). Clarkson moved to exclude the canine evidence based on the dog’s lack of reliability. The trial court denied the motion, saying that the officers reasonably relied on Oso’s alerts, and noting that in Illinois v. Caballes, the Supreme Court said only that a sniff should be performed by a “well-trained narcotics-detection dog.” 543 U.S. 405, 409 (2005).

Clarkson appealed. The Tenth Circuit held that there was a reasonable articulable suspicion for the initial stop, the questioning of the driver, a pat-down of the driver to check for weapons, and the initiation of the dog sniff. What the Tenth Circuit was not satisfied about was whether the dog’s alerts (outside and inside the car) had provided probable cause for the subsequent search. The Tenth Circuit said that probable cause could not simply be established by the fact the officers had no evidence the dog was not reliable. The circuit court said that this would amount to a good faith justification for a search and “would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it.”

The circuit court did not think it was asking for much. All the prosecution had to do was show that the dog had been certified, or that its training had been sufficient to reach a certification level. Oso had, in fact, not been certified, as an injury prevented him and his handler from completing the final two weeks of an eight-week training program. It would generally have been relatively simple to establish that the dog could do the job anyway but two things got in the way: the defense counsel was not asleep at the wheel, as too often happens with canine evidence, and the whole traffic stop was caught on video. These two factors merged when the defense hired an expert, Steven Nicely, who noticed that Oso’s alerts from the handler’s descriptions were not consistent with what was visible on the video of the traffic stop, where the dog seemed primarily to bark outside the vehicle and did not lie down inside the vehicle as the handler had described.

Nicely also noticed that the video demonstrated that Oso did not stay with a “closed-mouth sniff” through the procedure. Nicely testified that without actively sniffing, Oso would have been unable to properly detect drugs. Even more serious, Nicely suspected that the handler might have been cueing the dog to alert when they approached the passenger side door. The handler also told Nicely that he was thinking of changing the dog’s alert from a passive alert (usually sitting or lying down) to an aggressive alert (such as scratching or biting). That meant that the dog’s alert had not been fixed, which meant to Nicely that Oso had not received enough training.

The dog’s training records were apparently so sparse that Nicely could not form an opinion as to what the dog had actually learned. The district court held that the defendant had satisfied his burden of demonstrating that Oso was unqualified to serve as a narcotics detection dog at the time he was deployed in this case. The search of the vehicle was therefore not supported by probable cause. The handgun was suppressed. U.S. v. Clarkson, 2007 WL 2406942 (D.Utah 2007), 551 F.3d 1196 (10th Cir. 2009), on remand, 2009 WL 1651043 (D.Utah 2009).

Nicely has become the bane of detection dog handlers. As far back as 1996, defense counsel in a traffic stop set up something of a sting operation to see if Illinois state troopers were targeting black and Hispanic drivers for traffic stops and dog sniffs. A private investigator involved in this effort was stopped and a trooper’s dog alerted, resulting in a fruitless search. Nicely provided a report that persuaded the court that the handler was not automatically entitled to qualified immunity. A recent Eight Circuit case quoted Nicely as saying that an Iowa state trooper was not a well-trained detector dog handler and his dog was not a well-trained detector dog. U.S. v. Winters, 600 F.3d 963 (8th Cir. 2010). Nicely’s testimony has not been restricted to narcotics detection dogs. In a 1998 Texas case, he testified that an accelerant detection dog’s handler was not training his dogs in such a way as to produce reliable results. Another witness argued that the dog may have detected mineral spirits, not gasoline. Fitts v. State, 982 S.W.2d 175 (Tex.App. – Houston 1998).

Courts have not always been impressed by Nicely, however. See U.S. v. Prokupek, 2009 WL 2634446 (D.Neb. 2009) (“The Court does not find the Defendants' expert, Steven Douglas Nicely, credible. His relevant experience is lacking. The other expert testimony clearly established Rocky's certification and reliability using accepted familiar standards. Rocky positively alerted and indicated to the presence of drugs in the car, and Prokupek clearly appeared under the influence.”). Even more critical was U.S. v. Olivares-Rodriquez, 2010 WL 1137498 (N.D. Iowa 2010), a case where the handler said the dog gave an aggressive alert outside a vehicle that turned out to contain cocaine. The dog jumped up against the rear bumper, gave a scratch, then repeated this action twice more. Nicely argued that the handler, by tapping the vehicle, and saying “Drugs, check!” was cueing the dog. The prosecution’s expert argued that the handler was just indicating where the dog should sniff. The court agreed with this expert, and leveled a jab directly at Nicely:

“The court further finds that although Nicely appears to have considerable experience in the area of dog training, his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous.”

Sentences like these will ricochet among litigators looking for experts in cases with canine aspects, and the district court’s assessment could reduce Nicely's value to the defense bar. I advise experts who testify a lot, and particularly who expect an income from testifying, be careful what cases you take, and don’t always work for the same side.

For more on how a dog's history can be brought into a probable cause hearing, see the decision of the South Dakota Supreme Court in State v. Nguyen, 726 N.W.2d 871 (Sup.Ct. 2007). The court found three divergent views as to how a drug dog's reliability may be shown:

1. Jurisdictions deeming a dog reliable solely by showing dog was trained and certified.
2. Jurisdictions deeming a dog's training and certification prima facie evidence the dog is reliable, shifting the burden to the defense to challenge the presumption.
3. Jurisdictions that require or allow a dog's field activity reports, along with evidence the dog is trained and certified, to be considered in determining reliability.

The court also noted that a number of appellate courts have found the decision ultimately rests with the trial court. See also the Ohio appellate decision, also involving Nguyen, State v. Nguyen, 157 Ohio App.3d 482, 811 N.E.2d 1180 (2004).

Let Us Now Praise Gerun Moore

Gerun Moore with Chloe and a nurse on his 100th birthday.

Chloe and I are a therapy dog team. When anyone asks as to who gets the therapy in “therapy dog,” I usually explain that we visit patients in hospitals, children in special education schools, residents in nursing homes, and so forth, implying that those we visit are the ones getting the therapy. Perhaps I also describe how Chloe cheers up the nurses, receptionists, janitors, parking lot attendants, and so forth. But I suspect that if I were honest, I should say that the first recipient of the therapy Chloe dispenses is me. My life has been vastly changed by Chloe, in more ways than I can count.

A case in point is Gerun Moore, a resident in a nursing home we visited for several years in Youngtown, Arizona. The second oldest resident of the home (the oldest still lives at 107), Gerun was soon one of Chloe’s biggest fans on our visits there. He became our first stop, sitting outside the nursing station, always happy to see her but happy to see me as well. He asked me about myself, about what I did, how long I’d had Chloe, and would tell me about dogs he had owned. On March 12 we attended his 100th birthday (it was actually March 13, but that being a Saturday they moved it up a day so more people could attend).

Gerun lived life to the full, and there were children and grandchildren, and more distant generations at his birthday party. He had grown up in New Orleans, where his father was a musician and played with the likes of Louis Armstrong and Bix Beiderbecke. Gerun followed in his father’s footsteps and was once a member of the Louis Prima Orchestra, living in many places in the United States during the seven decades of his career. He told me about playing at a party the night World War II ended. Gerun was part of history and I wish I'd heard more.

Gerun was not the sort of musician who let the jazz clubs turn him into a smoker or a drinker. He wrote a book, Numbers Will Tell, and found a second career in lecturing around the country on the strange findings of numerology. I once expressed doubt that I would live as long as he had. “You’ll get there,” he said, “just stop worrying.” There was wisdom in his gaze, but no guile. He looked into Chloe’s eyes with the same innocence and simplicity that she looked into his. He calmed her. He calmed me. Somehow we were always a little different after we talked to him, which is why we always began our visits by going to him.

Gerun died on April 11, 29 days past his 100th birthday. I wonder what he would have made of that number - one hundred years, 29 days. Perhaps I’d have to calculate the number of days from March 13, 1910 to April 11, 2010. If men become angels, Gerun is surely among them, tapping time and spinning riddles on the plains of heaven. “Such a good girl. Such a good girl,” with the rasp of an old crooner. Some believe that dogs have a sixth sense. Perhaps Chloe hears him still.