Tuesday, July 26, 2011

Archeologists Argue for Multiple Domestication Events

Genome studies have resulted in different theories as to the epicenter of canine domestication, being either East Asia, the Middle East, or Africa. These conflicting results are further muddied by archeological investigations that place domestication either about 15,000 years ago, consistent with some of the genome results, or perhaps twice that far back, which can also be conformed to some largely earlier genetic studies. Two recent archeological papers and one genetics paper are worth detailed attention in these debates.

Small Dogs in Upper Paleolithic France

A team of French scientists analyzed remains of 49 small dogs (c. 12" to 17" at the withers) dating from 15,000 to 11,500 years ago that were recovered from three sites in France (Pont-d’Ambon, Montespan, and Le Closeau). The excavation sites also produced bones of red deer, wild boar, hare, and even some lions. The Montespan cave, well known for its rock art, also contained a life-size headless bear statue. The first and third pictures here from Bégouën and Casteret (1923) depict animal drawings from the Montespan cave walls, including horse, deer, bison, and perhaps hyena (lower right of the third picture). Dogs are not common in ancient cave art, though a likely instance can be seen in the lower left of the last picture below of the Magura cave in Bulgaria.

Previous excavations had found small dogs in Germany (Oberkassel), Switzerland (Hauterive-Champréveyres), southeastern France (Saint-Thibaud-de-Couz), southwestern France (Pont d’Ambon on a previous dig), and northern Spain (Erralia). The French team notes that these small dog discoveries are “frequently overlooked in the literature,” citing Savolainen and Pang as researchers guilty of this. Their article was undoubtedly in press by the time the controversy between Gray et al. and Klusch and Caprona surfaced, the subject of a prior blog on this site.

The French team considered the possibility that the recently excavated skeletons could be those of dholes, and not early small dogs, because dholes (Cuon alpinus) would be about the same size and had previously been found at a number of Pleistocene sites, though they eventually became extinct in Europe. In addition to prior anatomical studies concerning how to distinguish dholes from dogs, the researchers were able to identify ten additional distinguishing features in the skeletons of the two species. They concluded that the bones came from early dogs, not dholes or wolves (the bones were much smaller than bones of wolves of the same Late Glacial period). The picture shows two dholes at the Port Lympne Wild Animal Park in Kent, UK. The range of dholes in the wild is now restricted to Asia, particularly India and Southeast Asia.

The Montespan cave bones were dated 15,500-13,500 BP (before the present), those from Le Closeau about 13,000 BP, and those from Pont d’Ambon from 12,900 to 12,400 BP. The dog from Saint-Thibault-de-Couz could be dated 12,027 to 11,311 BP, and appears to have been even smaller than the dogs described in the present study, though whether such a decrease was correlated with time or some other factor could not be stated. “The only secure conclusion that we can draw is that these small Western European dogs are smaller than the contemporaneous large dogs in Eastern Europe, namely in Russia.”

It appears likely that dogs were sometimes eaten. Cutmarks on bones appeared in some cases to result from “butchery disarticulations.” (See Figure 6 in the paper.) The researchers cite other studies indicating dog consumption was widespread in Neolithic times and possibly earlier. They argue that the number of bones indicating butchery, at least at Montespan, suggest that eating dogs “appears to have been irregular and anecdotal in terms of subsistence strategy.” The cave dwellers preferred horse, reindeer, and chamois.

Some broken bones that were repaired “suggest complex relationships between these early dogs and the late Upper Paleolithic hunter-gatherer populations.” That is, some level of domestication had begun. The time frame suggested by the authors is consistent with domestication occurring around 16,300 years ago (Pang et al. (2009)), though the distribution of domestic dogs so far from previously suggested epicenters of domestication requires explanation.

Large Dogs in Paleolithic Belgium

Another piece of archeological research attempts to push the date of domestication back considerably further. A team of scientists from Belgium, Russian, England, and Germany, further has argued that fossil canids found in Belgium, Ukraine, and Russia, dating from 31,000 years ago, were large dogs, not wolves, though the dogs from the various excavations were not found to “form a homogenous genetic group.” The researchers thus argue for domestication as early as the Aurignacian, stating the issue as follows:

“Our hypotheses are that changes in dog morphology compared to wolf morphology appeared rather abruptly, that they were linked to the effects of domestication and that these changes became fixed in the dog population. If evidence cannot be not found to support these hypotheses, the alternative hypothesis would then be that substantial morphological differences were present between Pleistocene wolf populations, before domestication, and between lineages of wolves that led later on to recent wolves and dogs.”

Germonpre et al. analyzed skulls from a period where hunting game included mammoths and rhinoceros. Fox and wolf bones at the locations probably reflect the use of their hides in making fur clothing.

The skull morphology of the specimens was found to be similar across the studied group but distinct from the skulls of wolves. The dogs had a shorter and broader snout than wolves, shorter skulls, but a wider braincase. The researchers speculate that large dogs could have helped with “tracking, hunting or transport of large, ‘ice-age’ game, possibly mammoths on the Russian Plain.” They note that the skull shape “resembles that of the [Central Asian Shepherd dog] which was originally used as a flock guardian and as a protector against predators such as bears, striped hyenas and wolves.” I question whether transport, if this means pulling by some sort of harness system, could have occurred in this stage of the human-canine association.

The team suggests that “[o]nce the Palaeolithic dogs were established, their skull morphology seems to have remained stable,” noting that other early dogs “equally display a remarkable similarity in skull shape that persevered for thousands of years.”

In addition to morphological analysis of bones, the researchers extracted DNA, and used stable isotope analysis of bone collagen, a technique for reconstructing past animal diets. The diet of wolves appears to have been more restricted than nearby humans, though analysis of two large canids that were identified in previous research as wolves indicate some consumption of marine fish. The authors of the current research raise the possibility that these canids were in fact dogs whose eating habits had begun to track those of the humans near which they were beginning to live. Such a dietary parallel, of course, would be consistent with the refuse heap argument advanced by the Coppingers regarding the process of domestication, though they would date the process from the formation of permanent settlements, much later than the dating suggested by Germonpre et al. Arguably, however, groups of wolves could have become sufficiently associated with cave-dwelling humans, who after all are in something of a permanent settlement during the long periods some caves were occupied, leading to some selection in the surrounding wolf populations, without the occurrence of a completed domestication event.

The Pleistocene dogs yielded unique mitochondrial DNA sequences, from which the study concluded:

“Belgian large canids carried a substantial amount of genetic diversity. Since dogs were domesticated from gray wolves, ultimately the first dogs would have carried a wolf-like genetic sequence, and hence will be not identifiable genetically as the first dogs. Only after isolated breeding, it is possible that certain genotypes in the Palaeolithic dogs drifted to high frequencies and might therefore be distinguishable from those of the source wolf population. Thus one would only expect to see a differentiation of dogs and wolves after several thousands of years due to the bottleneck caused by selective breeding during early domestication. At the same time certain (e.g. morphological) traits were probably expressed and selected for, or just arose by drift. After this initial phase of domestication a relaxation of constraints occurred. Wolves after the domestication (i.e. dogs) were insulated from the full force of negative selection because humans cared for them, e.g. providing food and physical protection – therefore (slightly) disadvantageous traits could still survive and produce offspring. These individuals in their natural environment would probably not have contributed to the next generation’s gene pool. Later, exponential population growth increased genetic diversity to the high levels that are observed in dogs today. Since the domestication of dogs is, in evolutionary timescales, a rather recent event, the lineages of wolves and dogs have not separated yet, and therefore do not allow rigorous identification of the analyzed specimens. Given the proposed timescale for the dog domestication of only a few ten thousands of years and the mtDNA mutation rate, this is not unexpected. However, due to extensive breeding in the last couple of hundred years, the soaring population size of dogs has provided a sufficiently large genetic background to accumulate relatively high levels of mtDNA diversity.”

Several thousand years for genetic differentiation of dogs from wolves seems rather longer than might be required considering Belyaev's foxes, even without the artificial selection used in the farm fox experiment). The authors of the first study discussed above refer to the second study and express skepticism that there could have been domestic dogs in the Aurignacian:

“In our opinion, it is not excluded that these original canids were representatives of local divergent populations of wild wolves, and, though interesting and plausible, the proposal of so early dog domestication still needs to be confirmed by further discoveries. Therefore, in the present state of knowledge, the earliest undisputable dogs do not pre-date the beginning of the Late Glacial (c. 18,000 cal BP).”

This objection would not, however, be inconsistent with the alternative hypothesis proposed by Germonpre et al., namely that “substantial morphological differences were present between Pleistocene wolf populations, before domestication, and between lineages of wolves that led later on to recent wolves and dogs.” Thus, there could have been a large proto-domestication period during which various wolf groups had sufficient proximity to, and some dependence on, human populations, resulting in some selection within those wolf groups of traits that allowed for the proximity.

Recent Dog-Wolf Hybridization in Scandinavia

A short communication released in 2010 by some of the scientists involved in the genome research pointing to an East Asian origin for canine domestication discusses some results that don’t fit into that theory. The research group built on the finding that mtDNA haplotypes of dogs were distributed in six phylogenetic groups, clades A to F. Clade D is restricted to North Europe, Siberia, Southwest Asia, and the Mediterranean, and therefore did not originate in East Asia (Pang et al. 2009). Clade D was found to consist of two subclades that separated at least 50,000 years ago, well before most estimates of domestication. Subclade d1 is found in North Eurasia and d2 in Southwest Asia and the Mediterranean, from which the group concludes that they are likely to have separate origins from wolves. Subclade d1 had a frequency above 30% in native breeds in its core distribution area in Northern Scandinavia, indicating “a major separate influx of ‘wolf genes’ into the dog gene pool.”

The researchers studied 328 female lineages of Scandinavian and Arctic Spitz breeds, including Lapponian Herder, Jämthund, Finnish Lapphund, Norwegian Elkhound, finding he proportion carrying d1 to be, respectively 75%, 74%, 65%, and 46%, but Swedish Vallhund and Norwegian Buhund did not have the haplotype at all. They find this distribution remarkable and “the only example of a mtDNA haplogroup found only in a specific type of dogs from a restricted geographical area and in the majority of the individuals in this area.” Neolithic dog samples from southern Sweden did not include any evidence of Clade D. Because the study is of mitochondrial DNA, this indicates crossbreeding between female wolf and male dog, whereas identified crossbreeding between the two groups has more often involved male wolves and female dogs.

Based on frequency of mutation estimates, the research team concluded that haplogroup d1 originated between 480 and 3,000 years ago, resulting from crossbreeding of wolves with an already established dog population, not from independent domestication. The researchers take a stab at correlating this with human history:

“The sharing of the d1 haplotypes between the Lapphund breeds associated with the non-Indo-European speaking and nomadic Sami and some hunting breeds connected to Indo-European speaking farmers … is notable. Possibly, efficient hunting and herding dogs were items of trade between the two populations. The direction of this trade is not clear, but an origin of d1 among the Sami related breeds is indicated, as all these breeds have d1 haplotypes, while only some breeds linked to the Indo-Europeans have this haplotype….”

This kind of analysis is going to be increasingly important if domestication is to be put in an anthropological context. It must be determined not just when the dogs were interacting with humans, but who those humans were, where migratory patterns took them, and what other human populations interacted with them.

Archaeology vs. Genetics

Pionnier-Capitan et al., the first paper discussed above, consider how their findings may correlate with the series of genome studies seeking the time and place of domestication. Contrasting the single domestication event argued for by Savolainen et al. with the multiple event findings of vonHoldt et al., the French team states that the morphological diversity of early dogs “are in accordance more with a multiple origin than a unique common East Asian origin.”

The French team refers to the “large morphological diversity” of the Late Glacial Western Eurasian dogs, noting the medium size of some (17" to 24" at the withers), such as the Natufian dogs, the large size of others, such as those found at Eliseevichi I (greater than 24" at the withers), and the small to very small dogs described in their own study and others (12" to 17" at the withers). A connection of the small dog haplotype to Middle Eastern gray wolves was argued recently, to which the East Asian camp has responded. The fact that dogs crossing over the land bridge appear to be the only source of domesticated dogs in the Americas indicates that separate domestication events do not easily happen, but the archeological evidence remains to be fully correlated with the work of the geneticists.

Sources: M. Pionnier-Capitan, C. Bemilli, P. Bodu, G. Celerier, J.-G. Ferrie, P. Fosse, M. Garcia, and J.-D. Vigne (September 2011). New Evidence for Upper Palaeolithic Small Domestic Dogs in South-Western Europe. Journal of Archaeological Science, 38(9), 2123-2140; E.L. Jones (November 2009). Climate Change, Patch Choice, and Intensification at Pont d’Ambon (Dordogne, France) During the Younger Dryas. Quaternary Research, 72(3), 371-6 (finding intensified rabbit use during a period of climate change by the inhabitants of Pont d’Ambon); R. Bégouën and N. Casteret (1923). La Caverne de Montespan . Revue Archéologique de Picardie, 33; M. Germonpre, M.V. Sablin, R.E. Stevens, R.E.M. Hedges, M. Hofreiter, M. Stiller, and V. Despres (2009). Fossil Dogs and Wolves from Paleolithic Sites in Belgium, the Ukraine and Russia: Osteometry, Ancient DNA and Stable Isotopes. Journal of Archaeological Science, 36(2), 473-490; M.V. Sablin and G.A. Khlopachev (2002). The Earliest Ice Age Dogs: Evidence from Eliseevichi I. Current Anthropology, 43(2), 795-799 (“the idea of a single locus of domestication is not supported (Morell 1997). It seems probable that humans tamed wolf pups in many parts of the world and therefore that several subspecies of wolf contributed to the ancestry of the dog. We suggest that the specimens of dogs reported here [in the Dnieper basin on the Sudost River] were domesticated in situ from local northern wolves.”); R. and L. Coppinger (2001). Dogs: A Startling New Understanding of Canine Origin, Behavior & Evolution. New York, Scribner; J.-F. Pang, C. Kluetsch, X.-J. Zou, et al. (2009). mtDNA Indicate a Single Origin for Dogs South of Yangtze River, Less Than 16,300 Years Ago, From Numerous Wolves. Molecular Biology and Evolution, 26, 2849-64. See also C. Vila, P. Savolainen, J. Maldonado, et al. (1997). Multiple and Ancient Origins of the Domestic Dog. Science, 276, 168-9 (showing Savolainen had earlier accepted a multiple origins approach); R. Hawkins, A. Jansen & Waidman (2004). Arrianus: De Lange Jacht en Lurecoursing. Eburon, Amsterdam (in Dutch) (discussing instances of multiple domestication events for other species besides dogs).

Thanks to Hans Hillewaert for permission tor reprint the picture of the dhole. Thanks to I, Nk, and Wikipedia for permission to use the Magura cave photograph.

Thanks to Richard Hawkins and Brian Duggan for ever generous wisdom and advice.

Friday, July 22, 2011

Jumping into Cars: New Fact Situations, but Courts Continue to Apply Faulty Logic

Every officer patrolling with a narcotics detection dog knows that if the dog jumps through an open window or door of a vehicle during a sweep, the dog’s action does not violate the Fourth Amendment if the officer did not ask the occupants to roll down the window or open the door so that the dog could jump in and the officer did not encourage the dog to jump in during the sweep. (See, e.g., U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989).)

There have been numerous variations on this basic holding in the last 20 years, but three recent cases show that there are always new twists under old law. What happens if the officer asks a passenger to exit the vehicle, the passenger does not close the door after he gets out, the officer begins to close the door but leaves it open, and the dog later jumps through the open door and alerts? Does the officer’s action in beginning to close the door amount to encouragement for the dog to jump inside?

What if a window in the car might have been rolled down by an officer prior to a sweep and the dog stuck his nose through this open window during the sweep but did not alert? Did the dog’s action in sticking his nose through the open window mean that the dog’s later alert outside the vehicle violated the Fourth Amendment? Does it have to be determined who rolled the window down to answer this question? Even if the officer did roll down the window (which was not established in the second case discussed below), was the dog’s action illegal if the officer provided no encouragement?

Finally, if a dog jumps through an open car door and attacks a child in a safety seat, could the officer be liable? Under what circumstances? There was no liability in the third case discussed below, but if the circumstances had been different, there might have been.

Who Left a Car Door Open, and Why?

In U.S. v. Batista, 2011 WL 1636401 (D.Md. 2011), two men driving a Chevrolet Impala on Interstate 95 in Maryland were pulled over for having a burned-out license plate lamp at 1:41 a.m. Several factors led Corporal Armiger to believe the men might be engaged in drug trafficking. There was a strong odor of cologne inside the car. The license the driver handed the officer was wet and smelled of cologne. The car lacked any personal items or luggage. The passenger, Batista, had a New York driver’s license, while the driver, Nunez, had a Florida license. The car was registered to a third individual from New York.

Armiger called for backup. He frisked Nunez and asked him to move to the rear of the vehicle. He asked Nunez where they were going. Nunez said Delaware, but the car had been traveling south, away from Delaware. Batista, questioned separately, said they were driving to Baltimore. Dispatch advised Armiger that Batista was on federal supervised release and was a known member of the Latin King and Queen Nation gang. Armiger brought his dog, Justice, to scan the vehicle.

Nine minutes into the stop, Justice alerted to the odor of narcotics as soon as he approached the vehicle, then hopped in the car. When he exited the car he made another alert. Armiger searched the car and found two packages of heroin in a secret compartment. Batista and Nunez were arrested.

The court first concluded that extending the traffic stop was justified based on facts that properly raised suspicion. The defendants argued that the sniff inside the car was unconstitutional. The court described the facts and their constitutional implications as follows:

“[T]he Defendants contend that the officers ordered Nunez out of the vehicle and left the door open because they intended to ‘facilitate’ a sniff of the interior… [S]tandard police procedure dictates that the occupants of a car must exit and remain outside for the duration of a canine scan. At the time that Corporal Armiger ordered the scan, Nunez was already outside of the vehicle. The video fails to establish whether Batista or Officer Lubacker opened the passenger's side door. The video does show, however, that Officer Lubacker started to close the door but stopped. It is unknown whether he intentionally left the door open or not.

“If Officer Lubacker left the car door open to give Justice a better smell of the inside, that is permissible. If Lubacker left the door open as an invitation to jump inside, that would be impermissible. The Fourth Amendment is offended only if the dog fails to alert outside the car and the officers ‘facilitate’ the dog's entry into the car by letting him in or by leaving a door or window open in hopes that the dog will jump in.

“In the instant case, there are several dispositive facts. First, Corporal Arminger testified that Justice alerted as soon as he approached the car. Thus, probable cause was established before Justice hopped in. Second, from the video-recording, it does not appear that Officer Lubacker left the door open in order to invite Justice to enter. The stop unfolded quickly, and Justice alerted moments after Officer Lubacker stepped around the open door.”

The court distinguished U.S. v. Winningham, 140 F.3d 1328 (10th Cir. 1998), where the officers opened the door of a van themselves and reasonable suspicion had been exhausted before the dog arrived. No other cases were discussed in this context, and the court pronounced the law to be as follows:

“[T]he law allows the police, during a traffic stop, to open a car's windows or doors to afford the dog a better field of scent. This rule might be different if, during a police stop, the driver and the passengers were constitutionally entitled to remain in the sealed car. Such is not the case, however. The police are allowed to require the driver to roll down his window and exit the car. Before the scan begins, the police are entitled to require all of the car's occupants to open their doors and step outside. It would be foolish to require the police to close all of the doors and windows, and wait a time for the wind to blow the escaped air away, before the scan can begin.”

This seems to mean that if a suspect exits a car and does not close a door, an officer is not obligated to close the door before the dog is brought to sniff the car. The court’s statement, previously quoted—“If Lubacker left the door open as an invitation to jump inside, that would be impermissible”—does not provide a practical distinction from leaving the car door open to provide the dog with “a better smell of the inside,” which the court finds permissible. Any officer informed of the distinction will explain that he left the car door open to facilitate the sniff not to allow the dog to enter the vehicle. The dog will naturally go towards the point of greatest concentration of the odor so the two explanations of the officer’s actions are, as far as the dog is concerned, indistinguishable. This is a distinction without a difference and not the kind of logic on which constitutional law should hinge.

A Nose Through an Open Car Window Was Harmless

In U.S. v. Ayala, 2010 WL 2541845 (N.D. Okla. 2010), police conducting surveillance saw a possible drug deal happening at a gas station in Tulsa. Erlin Ayala drove away, after which an officer on patrol, Anthony First, saw the vehicle drift across a lane on I-244 and pulled it over onto the shoulder of the highway. First had been informed that a similar vehicle might have been involved in the drug deal. First smelled strong perfume or air freshener coming from the interior. There were two men in the vehicle and both appeared nervous. First took the driver, Ayala, to his car while he processed the information Ayala gave him. Knowing that a police unit with a drug dog was on call, First requested the assistance of the canine unit. Detective Daryl Johnson and his dog, Max, arrived.

“Johnson testified that he followed his standard practice of starting the dog sniff at the passenger side headlight and walking Max counterclockwise around the vehicle. Due to the high volume of traffic on I-244, Johnson anticipated that he would have to lead Max around the vehicle about four or five times, because traffic tended to distract Max during a sniff.

“During the first walk around the vehicle, Max focused on a seatbelt sticking out of the passenger side door. Max became distracted and began walking around the vehicle a second time. Max focused on the trunk, but again became distracted and continued to walk around the vehicle in a counterclockwise direction. On the third time walking around the vehicle, Max focused on the open driver side window, he arched his neck, and his nose crossed the window threshold. However, he did not alert to the presence of drugs. Instead, Max initiated a clockwise walk around the vehicle and, about 15 to 25 seconds later, stopped at the passenger side door. Max sat down next to the passenger side door, and alerted Johnson that he detected the scent of illegal drugs.”

Johnson told First about the alert and First searched the vehicle, finding methamphetamine in a bag. The occupants of the car were arrested.

Ayala filed a motion to suppress, saying that the police may have rolled down the window to aid the dog during the sniff, something that the government did not clearly rule out as a possibility. The court first determined that there was reasonable suspicion to extend the length of the traffic stop for the purpose of calling for a drug dog. Citing U.S. v. Vazquez, 555 F.33d 923 (10th Cir. 2009), the district court held that if “a drug dog breaches the interior of the vehicle during a sniff, this does not violate the Fourth Amendment if the dog acted instinctually and entered the vehicle due to an act of an occupant, rather than the police officer.” The court noted that in the third walk around the vehicle, despite the drive side window being completely open, Max paid no more attention to it and alerted 15 to 25 seconds later on the opposite side of the vehicle. “The mere fact that Max's nose may have entered the vehicle does not constitute a Fourth Amendment violation, unless defendant can show that police took some action to cause or facilitate the drug dog's entry into the vehicle.”

“Defendant argues that is was unlikely that he would have been driving the window down if it was raining. First testified that he approached the vehicle from the passenger side, and defendant argues that he did not need to roll down the driver side window to speak with First. There is no evidence that Johnson rolled the window down before starting the dog sniff, and First's testimony does not address this issue. First testified that he opened the driver side door to check the vehicle's NADAR sticker, but he did not testify that he rolled down the driver side window. Defendant argues that the government cannot carry its burden to show that a constitutional violation did not occur if the government fails to explain how the window was rolled down. However, the Court will not presume that constitutional error occurred merely because there is no evidence on a particular factual issue. The government has established that First had reasonable suspicion to initiate a traffic stop and extend the traffic stop for a dog sniff. There is no dispute that Max stuck his nose or snout into the driver side window, but this is not a constitutional violation unless the police engaged in some conduct that facilitated Max's partial entry into the vehicle. Without some evidence that police rolled down the driver side window, the Court will not presume that a constitutional violation occurred.

“Even if the Court were to assume that police rolled the driver side window down or directed defendant to roll the window down, the Court finds that this act did not cause Max to alert and was harmless. Max did stick his nose in the driver side window, but Max did not alert at that time. Instead, Max initiated a clockwise walk around the vehicle and focused on a seatbelt sticking out of the passenger side door. This occurred about 15 to 25 seconds after Max stuck his nose into the driver side window of the vehicle, and there is no evidence that Max alerted because of his slight entry into the driver side window. Instead, Johnson's testimony shows that Max initially focused on a seatbelt sticking out of the passenger side door and Max returned to this location to alert Johnson to the presence of drugs in the vehicle. Thus, there is no evidence that Max alerted because the driver side window was rolled down and the Court will not suppress evidence for this reason.”

The motion to suppress was denied.

Potential Liability for a Dog Scratching a Child

In Neal v. Melton, 2011 WL 2559003 (6th Cir. 2011), two deputy sheriffs, riding with a police dog, saw a blue Cadillac that matched the description of a vehicle suspected as being used to deal drugs and called in the license plate. A database check revealed the plate was registered to a Buick, and had expired. The deputies activated their emergency lights and the video camera in the patrol vehicle, after which they saw something thrown from the Cadillac, though this was not visible in the dashboard video.

One of the officers retrieved the dog, Solomon, to conduct a sweep and the dog alerted to the driver side door by sitting. The handler then said he would search the vehicle and returned the dog to the police car, but apparently did not secure it because when the second officer opened the passenger door for the passenger to exit, the dog “trotted toward the Cadillac and entered the now-open front passenger car door.” There was a child in a safety seat in the back of the car and when the dog got close to the child, the mother protested. The handler circled the car to remove the dog, which was in the car for 14 seconds. The driver and passenger, who sued on excessive force and other claims, said that the dog scratched the child when it was in the car.

The search of the vehicle lasted nine minutes and produced no drugs, while the total stop was 22 minutes. The individuals were permitted to reenter their vehicle and depart.

The Sixth Circuit held that the two officers “did not ‘through means intentionally applied’ use Solomon to seize Lexus [the child] or exert force upon her, even though their negligence allowed the dog to come into contact with her.” The circuit court cited Hanson v. City of St. Paul, 2007 WL 4224052 (D.Minn. 2007), which held that a dog biting a third party was not actionable under § 1983 even though the officer intentionally released the dog “because the dispositive inquiry under the Fourth Amendment was not whether the officer intended to release the police dog, but whether he intended to seize the injured party.”

The court found that the continued detention of the vehicle and its occupants required reasonable suspicion, but that there was reasonable suspicion because the vehicle matched the description of a vehicle reportedly tied to criminal activity. Also, the officers believed something had been thrown from the vehicle, which the plaintiffs did not contest. The reasonable suspicion supported the sniff, which produced at least one positive alert, according to the majority. The Sixth Circuit determined that qualified immunity should apply to the actions of the officers.

One judge, concurring in part and dissenting in part argued that it was “not obvious from the videotape that the dog alerted,” meaning that there was a genuine issue of material fact that could not support summary judgment on the issue of whether there was an unreasonable search and seizure.


Dogs trained to detect narcotics or explosives will generally go towards the source of the scent, and jumping through an open window or door will often accomplish this objective, as well as focusing the suspicion of the officers on the scene. It is not a behavior to be uniformly discouraged, though allowing it to happen when a baby is in a car could, under slightly different circumstances than those described in Neal v. Melton lead to substantial liability.

The reference to the dog’s behavior as being instinctual, appearing in Ayala and in Vazquez and other cases, creates a false dichotomy. Police dogs are often trained in agility, which can include teeter totters, ramps, ladders, catwalks, and rings to jump through. Wooden frames may be shaped and painted to look like windows. Additionally, many dogs are routinely trained to sniff the interior of vehicles by going through an open door. Dogs trained in this manner may jump through car windows or enter doors as a result of training, not because of any supposed window-entry instinct. Although it might be argued that officers in the situations described in these cases facilitated the entry of the dogs into the vehicles by adopting training regimens that encourage dogs to go through objects like windows, the threshold question should remain whether on the scene of the stop the officer actively encouraged the entry into the vehicle.

Prosecutors should realize that defense counsel may also begin to make cueing arguments in jumping cases, since active encouragement may not always involve a direct or intentional command. Defense counsel should make sure that defense experts study videos for evidence of cueing dogs to enter cars. Defense counsel should also explore the agility aspects of a dog’s training. In civil cases, such as the third case described above, counsel for plaintiffs should seek the dog’s training records in discovery to explore the extent of the dog’s agility training. Combined with any biting history, this might tip the scales towards the plaintiffs in a civil case.

This blog was written by John Ensminger and L.E. Papet. For the history of jumping cases, see Police and Military Dogs (forthcoming Taylor & Francis/CRC Press).

Saturday, July 16, 2011

Red Cross, Iron Cross: Ambulance Dogs in World War I

Kaiser Wilhelm II knew the value of Red Cross dogs (Sanitätshunde). Visiting a hospital behind German lines on the eastern front, he saw a soldier on one cot, a dog beside him on the next. He was told the story:

"Lieutenant von Wieland led a party of men in an attack on the Russian trenches. Seeing the task hopeless on account of the Russian fire, he, wounded, sent back the men who had set out with him and lay there in the blood and muck and filth of the battlefield: The Russian fire was so murderous that no one dared bring him in. Presently a dark form bounded from the German trenches, rushed to Lieutenant von Wieland's side, grasped his coat between his teeth and, foot by foot, dragged him to safety. Once, but only for a moment, did he loosen his hold, and that was when a bullet creased him from shoulder to flank. The blood gushed from the wound, but the dog took a fresh hold and finished his job at the edge of the trench where willing hands lifted the lieutenant down to safety. They had to lift the dog down, too, because just then a bullet broke both his forelegs.”

The emperor gave each an iron cross, handing one medal to the man and tying the other to the dog’s collar. A picture of the lieutenant with his dog, Steif, was included in Theo Jager’s book, Scout, Red Cross and Army Dogs and is the second picture here.

Numbers and Breeds

Jager, writing his book on military dogs as the war raged, estimated there to be 10,000 Red Cross dogs on the various fronts by late 1916, the highest numbers of which were in the German and French armies. The Russians had great numbers of trained dogs as well, though Jager does not estimate how many were used for mercy work.

Jager did not think any particular breed was particularly predictive of the value of a war dog:

“It is character and training that is wanted; nobody has time in days of war to worry about ancestry. Character is the hardest thing to breed and the aristocrat with a shifty eye goes into the discard. In time of need democracy asserts itself. Size, weight, and health may be determined. Then comes training—and there character shows.”

A note on terms is necessary. While many references to ambulance dogs clearly refer to dogs whose functions were those of most Red Cross dogs, to reconnoiter battlefields for the wounded, some references to ambulance dogs are more specifically meant to apply to a dog or team of two dogs that could pull a stretcher, usually mounted on wheels. I use the broader definition here.


Captain von Stephanitz, in his book on the German shepherd, described the ambulance dog as a “German product.”  He explained that it was originally intended to amalgamate messenger and ambulance dog training, "but it was soon realised that a combination of such different tasks was not suitable. So far as I know, a man from Dusseldorf, the animal painter Herr Bungartz, was the first to call attention to the necessity of making a radical distinction between these two types of Army Service dogs. In 1893 he then founded the "Deutscher Verein fur Sanitatshunde" (the German Society for Ambulance dogs)...."

Stephanitz wrote that the Medical Department of the Ministry of War had at first shown little interest in the use of ambulance dogs, but a demonstration was held in July 1914 "on the range at Zossen under conditions as nearly corresponding to those of war as possible.  In this trial, which was continued throughout the night, dogs of the Ambulance Dog Society and of the Berlin Police Department had been allowed to compete, besides the dogs of the SV [the German Shepherd Society]." The demonstration was successful and ambulance dogs were introduced gradually as the war unfolded.  The Ministry of War established the Ambulance Dog Replacement Depot at Fangschleuse near Berlin "for the purpose of keeping up the strength of the dogs in the various establishments."

To increase the supply of police dogs, the police dog authorities were approached:

“[C]areful tracking, which was the characteristic of the work of the Police dogs, in the Security Service (and especially that of the Country Police), corresponds exactly to the work required of the Ambulance dog.  When the searching Police dog barked on finding a man and did not merely content himself with pointing him out, this barking was allowed by the first trainers of the Ambulance dog.  These Police dogs, moreover, should be allowed to ‘point’, or at any rate this method of detection could be developed in them in case of need. The Police dog could not be dangerous to a wounded man, and he was trained not even to bite a criminal when he had found him.”

To put this in modern terms, a dog trained in suspect apprehension would not be useful, but one trained to a passive alert could be used.  Stephanitz also argues that the dogs were able to distinguish the particular smell of the wounded. The postcard above shows an ambulance dog leading a medic to a wounded soldier. 

Stephanitz saw ambulance dogs as unsuited for trench warfare, but useful for open warfare:

"In trench warfare or in defensive actions, there is little opportunity for the Ambulance dog to function.  His real chance comes when the troops are advancing in the open.  An opportunity for such open warfare was only given, after the first two weeks, on the Easter, the South Eastern and the Southern Fronts.  There, that is to say, in Russia, Roumania, and the Balkans, Italy, and even in Asia Minor, our Ambulance dogs fully justified the confidence placed in them, whenever they arrived in time and in sufficient numbers.  It is not yet known, and probably never will be, how many thousands of wounded owe to them their lives and their restoration to health, but the future of the Ambulance dog with the Army is now everywhere assured."

Dogs were deployed particularly at night when the battles were not raging and it was impossible to try to find the wounded with lights, which would expose soldiers to the enemy.  “The Ambulance dogs must run to, fro, and about in an area of something like 220 x 54 yards, smelling out the tracks of the wounded, and announce them to their leaders. “  Stephanitz asserts that well-trained dogs never pointed out corpses. 

Although the easiest way for a dog to announce that it had found a wounded soldier was to bark, it was determined that the enemy, who could shoot in the direction of the sound.  “The greatest silence therefore is just as imperative as the avoidance of any light, and thus the return of the dog to make his report is the only possible method.”

The problem was what the dog should bring back.  As shown in the picture here, dogs were first taught to bring back objects, such as a soldier’s cap, but this soon presented problems. 

“If the dog does not find any object close to the man which he can take up, he will try to tear off such a proof of identification from the wounded man himself.  This might not only be a serious matter of anxiety to a seriously wounded man—especially when the dog tries to drag something off—but might cause him to make repelling motions which might incite the dog to snap at him.” Thus, a leather ‘sausage’ was hung from the dog’s collar by a leather strap.  The dog (sometimes the wounded soldier) put this object, also called a ‘bringsel’ (the object to be brought) into his mouth and returned to the ambulance dog leader, nicknamed the “Wow-Wow-Lieutenant.”  The leader then leashed the dog and it took him back to the wounded man. 

The bringsel method was devised by a psychoanalyst named Pfungst from Berlin, who according to Stephanitz, “had no experience with dogs at all.”  Stephanitz preferred that the dog be trained to return on finding a man and just lead the leader (handler) to the wounded man.  He explained his objection to the bringsel:

“The first condition of success is that the dog should conduct his search without anything likely to hinder him.  A dog who must be able to overcome every obstacle in his way, who in case of need must jump or swim, and at all events must gallop more often than not, must not be let or hindered by anything in his movements, for in his search, he must force himself through jungle and high crops, through dense under-growth and hedges, through high thorns, vines and tangled nets of wild growth, through barriers of branches or barbed wire, in fact, everywhere where man cannot go and penetrate. Even a simple collar, however, involves the danger that he may become caught and that he will be unable to get loose again in spite of all his efforts.  This generally means the end, not only of the dog, but also, which is the principle thing, the search for the wounded is made impossible.” 

Stephanitz does not suffer fools lightly.  He describes efforts to put objects on dogs even more dangerous than the bringsel:

“Well meaning theorists wished to hand on our Ambulance dog—after the picture of the well-known St. Bernard dog ‘Barry’ with that inevitable little cask of cognac on his back—a wonderful collection of leather equipment, surmounted by a mighty Red Cross, and hung with little bells and lanterns; nay, they even wished to pack on his back rainproof covers and groundsheets, emergency Field Dressings, bottles with ‘a drop of comfort’, maps and emergency rations, and even to put rubber galoshes on his feet.  The grim earnestness of the War soon did away with all such contraptions….” 

Jager, in his book, agreed with E.H. Richardson that the Germans did not respect the Red Cross insignia of men or beasts, and saw the saddles the dogs wore as a target for German snipers.  From the account of Stephanitz, it appears the Germans believed the same lack of respect to be true of the English.  Jager knew how effective the German ambulance dogs were, and quoted from the diary of a captured German Red Cross worker:

“We left for the battle field at two o’clock in the morning. We could only work on the lead, as we were less than 400 meters from the French lines. 'Treu,' my dog, in a short time found five wounded, three severely wounded and two slightly wounded, which even with the sharpest eyesight you could not have found, they were so well hidden. They had been out on the battlefield for a day and a half.”

German soldiers rescued because of Red Cross dogs established a hospital for sick and wounded animals at Jena.


The Bulletin of the German Shepherd Dog Club of America also reported that the French army was using Belgian sheep dogs to seek out injured soldiers who were unable to walk or crawl to an open space where they could be discovered. The Societe Nationale des Chiens Sanitaires had eight training and breeding kennels. Further, the Bulletin stated:

"The dogs are trained not to bark when they find a disabled soldier. They are taught to disregard dead soldiers. Each dog has a box containing first aid remedies and appliances tied to its neck. Upon locating a helpless soldier the dog goes up close to him so that the box may be opened. The animal tears a piece of the uniform from the soldier and then returns to the kennel to which he is attached.”

What happened in the French army when a dog returned with evidence of a wounded soldier is described as follows by the Bulletin:

"The better trained dogs return to the kennel, bark and turn back in the direction from which they came to indicate that they have found an injured soldier. A corps of surgeons are attached to the kennels and they follow the dogs to the injured men. Many times soldiers are found at the bottom of deep ravines, and other sequestered places where only dogs with a keen sense of smell could locate them. Sometimes it takes a whole day to get a soldier he has found because of the hazardous work of carrying him to a road.”

As can be seen in some of the previous passages, there are statements that Red Cross dogs were trained not to bark, as well as statements that they were trained to bark in certain circumstances to bring help to a wounded combatant. A training picture here shows a dog waiting for stretcher bearers where the wounded are lying.

A French dog, Prusco, that looked like a white wolf, was credited with saving more than a hundred men, and after one battle allowed three soldiers in sequence to hold onto his collar while he dragged them to a depression where they could be safe from enemy fire.


An article appearing the British Medical Journal in 1910 indicates that the training being developed by Edwin H. Richardson, then a major, was being kept secret, as were his conclusions regarding the best cross-breeds to use for ambulance dog work. The article describes the equipment of a British ambulance dog:

“[T]he dog is equipped with a waterproof canvas saddle, with a pocket at each side. In these pockets are placed eight triangular bandages, while slung round the dog’s neck is a small cask of brandy or rum, and a bell for use after dark. A biscuit for himself is a wise provision.”

The article, which was not signed and was only a few lines more than a page, describes Richardson’s efforts to interest the British War Office in ambulance dogs:

“[A]fter the Russians had gone to Major Richardson for dogs, the War Office requested him to attend the camp at Stobs for the autumn manoeuvres, and he was attached to the 42nd Black Watch. General Sir Charles Tucker, commanding in Scotland, put the dogs through very severe tests, and as a result recommended their adoption, but the War Office has made no move. Major Richardson has been trying to arouse the sympathy and interest of the War Office for the past seven years, but he need not be discouraged—seven years counts as but one day in a conservative country like ours; if once, however, Great Britain is brought to feel quite sure that ambulance dogs do good work on the battlefield, every other dog in the country will be trained and equipped for the fray. We are slow to move, but we never do things by halves.”

This Merry Old England gibberish turned out not to be the case. Richardson soon became less enthusiastic:

“Most of the countries I have mentioned [Germany, France, Italy, Russia] had been experimenting with ambulance dogs for searching for the wounded, and I also had given a good deal of attention to this service, but it was found unworkable under modern conditions of trench warfare."

As the war began, Richardson settled on training ambulance dogs:

“When my offer of sentry dogs was rejected in the first days of the war, I turned to another branch of work in which I had frequently experimented in previous years—tracing the wounded on the battlefield. These dogs were, of course, used with ambulance sections. At this period a war of movement was the only method conceived, and also we in this country were convinced of the inviolability of the sacred symbol of the Red Cross, whether on man or beast, hospital or ship. Had these conditions obtained in this war, ambulance dogs would have been of great assistance. As it was, however, when the French army hurriedly sent some of their ambulance dogs with their keepers to the front in the earliest feverish days, the first thing that happened was that, although both men and dogs wore the Red Cross, the enemy brutally shot them all down whenever they attempted to carry out their humanitarian work. It was also found that, when the opposing forces settled down into trench warfare, the opportunities on the Western front were closed. The only ambulance dogs that were used with any success were those with the German army when the Russians were retreating on the Eastern front.”

Richardson concluded that “it has been found that ambulance dogs can only render service to the wounded in a war of movement.” In the end, Richardson devotes perhaps no more than a page to ambulance dogs in the entire of his long book on British war dogs.
United States

The Surgeon General of the U.S. Army, W.C. Gorgas, testified before the Congressional Committee for Military Affairs as America prepared to enter the war that Germany had 6,000 Red Cross dogs. Gorgas gave this number as a means of trying to get the War Department to devote more attention to expanding the American program, arguing that the few dogs the U.S. had at Fort Vermont at the time were but a drop in the bucket to what the U.S. should have had.

Training Red Cross Dogs

Dogs were trained to distinguish the uniforms of their country from that of the enemy. Jager quotes extensively from an article in Red Cross Magazine concerning the training of Red Cross dogs:

“Army or Red Cross or Sanitary dogs, as the Germans call them, are first trained to distinguish between the uniform of their country and that of the enemy. Then the dog must learn the importance of a wounded man, as being his principal business in life. News of the wounded must also be brought to his master. He must not bark, because the enemy always shoots. There are various ways in which the dog tells his master of his discovery. One method is, if no wounded have been discovered, to trot back and lie down, whereas, if he has found a wounded man he urges his master to follow. United States Consul Talbot J. Albert of Brunswick tells of a method in use in the German army, in which the dogs have buckled to their collars a short strap, and they are trained, when they find a wounded man in hunting over the battlefield at night, to grasp the straps in their mouths and so return, thus signifying that there is a man in uniform alive out there. Then they lead the way back to him. This invention was necessary to overcome an evil that became evident among dogs taught to retrieve: that is, to bring back some piece belonging to the wounded man, his cap, glove, or something from the neighborhood, such as a piece of cord, a stone, or a bunch of grass. The trouble with the method was that the dogs, in their abundant zeal, never returned without something from the injured man, and usually they took that which first struck their eyes. This was most often a bandage, which the dog would tear off. If taught to bring back a cap and the soldier had none, the dog would very likely seize him by the hair.”

Dogs were never trained to scent out the dead. Jager describes the training of war dogs as involving only one trainer, but sees the dog’s loyalties going to members of his unit:

“While they are the property of the company and will come in touch with all members of the company more or less daily, a rule should be made, that no one fondle or coax them or try to distract their attention from whatever work they may have in hand. They should not be interfered with, even if not in training at the time, or on duty. They must recognize in their trainer, and next to him in the few members of the squad, their only masters. When they have completed their training, it is time enough to teach them to obey anyone, in case of need, belonging to that company and to transfer their fidelity to any soldier in the familiar uniform. A well trained dog will soon get the proper esprit de corps and will know and obey every member of the unit to which he is attached.”

Jager thus distinguishes the war dog from the police dog, “who knows but one master.” Another difference is that a police dog may be taught to 'give tongue,' but not most war dogs. Jager divides the training of war dogs into obedience lessons and field lessons. The obedience lessons were Heel, Down, and Retrieve. He considered Down as “the greatest obedience exercise that a trainer has and for that reason it should be ground into the very being of the dog.” A picture above shows a red cross dog in down position leading two soldiers moving forward face down.

Field lessons specific to war dogs were:

1. S-sss, S-sss. Jager describes this as a command and caution to increase the dog’s attention, given in a whisper, and may be given with the hand signal for Down in order to preclude barking.
2. Advance. A command to send the dog forward into the immediate area to detect hidden or advancing enemies and avoid a surprise attack. This command is taught in stages until the dog can reconnoiter without a handler.
3. Report. This is taught so that the dog can deliver a report from an advance post. This command is also taught in several stages.
4. Report—Advance. This command is used after a dog has been sent from a unit at the front to bring back help, and the commander of the base determines to let the dog guide support to the forward unit. The dog may also receive the command, Slow, that it not lead the support unit too quickly into the same danger the advance unit has encountered.
5. Guard. This command is used when the dog is to assist in guarding prisoners. Guard—Attack is used to recapture an escaped prisoner.

The fourth command, Report-Advance, was particularly relevant to Red Cross dogs. Although Jager was American, he was writing before the U.S. experience in World War I had been formed, so his information about American war dogs is solely concerned with training.

Although police dogs were a fairly new phenomenon when World War I began, Richardson had noted in his book, War, Police and Watch Dogs, published in 1910, that tracking dogs could be retrained to serve as ambulance dogs, while dogs that accompanied police on their rounds would likely make good sentries and scouts.


It appears likely that Richardson downplayed the importance of Red Cross dogs in World War I, perhaps reflecting the earlier secrecy that was applied to some of his work, or perhaps from lasting bitterness at the resistance he found in the British military establishment to the use of dogs in war. Nevertheless, deploying the dogs must have been a wrenching decision where the fronts remained fixed for so long and the enemy did not respect the Red Cross badges on either men or dogs.

Descriptions of most canine functions in World War I partake of a limited range of primary sources, many largely anecdotal and infused with propaganda. I suggest that an excellent thesis topic for someone working towards a doctorate in military history would be to study the field records of all the armies in the war, particularly German records, for specific references to the deployment of canines on the fronts.

Sources: T.F. Jager (1917). Scout, Red Cross and Army Dogs (Arrow Printing Co. New York); Ambulance Dogs (December 10, 1910). The British Medical Journal, 2((2293), 1589-1590; E.H. Richardson (1920). British War Dogs: Their Training and Psychology. Skeffington & Son, Ltd. London; (1910). War, Police and Watch Dogs. William Blackwood & Sons, London; Captain von Stephanitz (1923). The German Shepherd Dog in Word and Picture. Anton Kampfe, Jena, Germany.  See also The Animals in War Memorial, Brook Gate, Park Lane, London W1.

Thanks to Brian Duggan and Richard Hawkins for recommending sources.  Thanks to Ronald Keats for finding a rare cache of World War I postcards showing German ambulance dogs at work.

Friday, July 8, 2011

Getting Paid for Taking Service Dog Cases: Thank the Law Gods for Appellate Courts

In October 2005, Charles Williams, a paraplegic, entered a Hilton Hotel franchise in Long Beach, California, with his service dog and requested a room. He was refused accommodations and told to leave the premises. In 2009¸a jury found that the Hilton franchise had violated California’s Unruh Civil Rights Act and had negligently trained and supervised its employees, awarding Williams $14,200 in damages, but rejected Williams’ claim for intentional infliction of emotional distress. The trial court granted the Hotel’s motion for summary judgment notwithstanding the verdict, finding that Williams’ negligence claim as to the Hotel's training of employees was not supported by substantial evidence.

The parties also stipulated to a permanent injunction after trial. The Hotel agreed to post signs that service dogs are welcome, modify its policies so that no weight limitations would apply to service animals accompanying a disabled guest, not to require a cleaning fee or deposit for service animals unless authorized by statute, and implement training standards for personnel regarding the rights of disabled persons to be accompanied by service dogs.

Williams was represented by two lawyers and applied for statutory attorneys’ fees. Samuel Jackson claimed 145.15 hours at an hourly rate of $550, totaling $79,832.50. Aaron Stites claimed 487.4 hours at a rate of $295, totaling $143,783. The trial court concluded that the case was not a difficult one, did not involve a large number of witnesses, numerous documents, or complicated transactions. The court described it as “a very simple case that would be won or lost on the issue of plaintiff’s credibility.” The court disallowed all fees claimed by Jackson, but allowed that a reasonable amount of time for Stites was 80 hours, for which the court awarded him $23,600.

The trial court thus decided that Jackson should receive nothing for interviewing Williams, inspecting the hotel property, reading depositions of the Hotel’s employees, reviewing various documents prepared by Stites (an attorney recently admitted to the California bar), conducting voir dire, preparing witnesses, giving the opening statement, and examining Williams at trial. The trial court apparently felt that Stites should have been able to conduct the case without any of this support or help, and presumably without virtually any preparation at all. This would make disability rights a very unappealing area of practice, which may have been the idea. (Presumably this trial court would feel that the book I wrote covering the law of service and therapy dogs could have been written in much less time than the two years it took me.)

There is good reason for appellate courts. The appellate court accepted that the trial court has latitude in awarding attorney fees, “and its determination will be upheld unless there is a manifest abuse of discretion.” The trial judge can rely on its own expertise, but is to consider (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, and (4) the contingent nature of the fee award. When a trial court severely curtails a fee award, the appellate court may reasonably presume that it concluded the fee request was padded.

Williams contended on appeal that only the first of these four matters was considered by the trial court, the difficulty of the case. The appellate court noted that the amount of compensatory damages awarded the plaintiff does not control the appropriate level of attorneys’ fees where constitutional rights are vindicated. Trial courts can, however, reject attorneys’ fees on claims that are unsuccessful, as was true of some of the claims here. Of course, part of the lack of success here was the judge's decision to set aside part of the jury's verdict.

“Even if the trial court could reasonably deny attorney fees for claims that it felt were unnecessarily pleaded, the court could not ignore that in addition to obtaining damages for Williams personally, plaintiff's counsel benefitted the public by securing a permanent injunction…. The purpose of the Unruh Act's attorney fees clause is to encourage vigorous enforcement of civil rights—an important public policy—by allowing injured parties to seek redress and attorney fees in situations where they would not otherwise find it economical to sue.”

The appellate court found that the trial court gave “no credit to counsel for vindicating the legal rights of all disabled people who frequent the Hotel while using licensed service animals.” Further:

“The trial court's refusal to award any fees to co-counsel Jackson was arbitrary and inexplicable. Jackson conducted jury voir dire, made the opening statement, and examined plaintiff at trial. The court conceded that Jackson's participation was “no doubt helpful and of benefit” to Stites. Any benefit to lead counsel is, at base, a benefit to plaintiff. As Stites revealed to the trial court, this was his first jury trial. Plaintiff might not have prevailed at trial without Jackson's skill in establishing plaintiff's credibility for the jury. While the court has discretion to award a reasonable fee for Jackson, it lacked discretion to deny his fee altogether.” (emphasis added)

The appellate court concluded:

“The case must be remanded to the trial court to revisit its award of attorney fees. On remand, the court must take into account the public benefit secured by counsel in pursuing this civil rights case and obtaining a permanent injunction requiring defendant to post signs, modify its policies and implement employee training with regard to treatment of disabled customers with service dogs, to deter future Unruh Act violations. Further, the trial court must award attorney fees to Samuel Jackson for nonduplicative services he rendered at trial—and pretrial preparation for those services—that helped plaintiff win his Unruh Act claim. Finally, the trial court must award attorney fees incurred in prosecuting this appeal.”

This counts as chastising. Hopefully, I won’t have to add an additional note about a subsequent appeal from this trial court.

Williams v. HEI Long Beach LLC, 2011 WL 2120908 (Ct. App. 2011)

Tuesday, July 5, 2011

Don’t Forget Why You Made a Traffic Stop, or a Sniff Might Get Thrown Out

Probably all law enforcement officials in the country—certainly all police dog handlers—know the basic holding in Caballes, that a sweep by a drug dog during a lawful traffic stop, which does not reveal information other than the location of a substance that no individual has any right to possess, does not implicate the Fourth Amendment and, therefore, does not require reasonable, articulable suspicion. One word that it is critical to keep in mind in such stops, however, is “during.” A Georgia case shows that if the purpose of the stop is abandoned, the sweep of the car with a drug dog must be supported by reasonable suspicion because failure to continue processing the traffic violation is the same as having completed the reason for the stop. If, in such a situation, the only suspicion arises from the driver’s nervousness and failure to look the officer in the eye, in a number of jurisdictions there may not be sufficient reason to perform the sweep with the dog. This happened in a case in Georgia, despite the fact the sniff occurred only eight minutes into the stop.

On October 3, 2008, a patrol officer saw Ralph Nunnally twice fail to use his turn signal and pulled him over, then requested and received Nunnally’s driver’s license and insurance documentation. The officer testified that Nunnally displayed fidgety hand movements and did not look him in the eye. Concerned about this nervousness, the officer returned to his patrol car and called for a backup unit, which on that day was a K-9 unit. The officer had dispatch run the driver’s license but did not start the citation. He testified that he “mainly focused my attention on Mr. Nunnally due to his moving around within the vehicle.” When the backup unit arrived, the patrol officer requested that Nunnally step out of his vehicle and patted him down, finding no weapon or contraband.

The Georgia Court of Appeals describes what happened next:

“We note that, even after the backup officer arrived at the scene and the patrol officer had removed Nunnally from his vehicle and determined that Nunnally did not have a weapon on his person, the patrol officer admittedly did not engage in any traffic law enforcement. For example, he did not start writing any citation or warning. In fact, he testified afterward that he had ‘no idea’ whether the driver's license information he had requested from dispatch had been made available to him by the time the backup unit arrived at the scene.”

Defense counsel in such situations should attempt to find out if the abandonment of the traffic violation goes back as far as the call for backup by cross-examining on whether the patrol officer knew that backup would be a K-9 unit, whether the officer had used the K-9 unit as backup before, and what results had been obtained from prior calls to this unit. Although the judge might cut such a line of questioning short on objection by the prosecution, defense might be able to suggest that, almost from the beginning, the patrol officer had turned the stop into a narcotics investigation.

The court continues:

“Thus, the officer was asked, ‘So you kind of made the decision to not worry about the license at that time. Your priority was to wait for the officer to come with a drug dog?’ The patrol officer responded, ‘Yes.’”

The question that was asked of the officer, presumably by defense counsel, “So you kind of made the decision…”, shows good strategic thinking, almost innocently asking about the priorities the patrol officer was working under. The officer’s forthright “Yes” indicates that the officer did not give this change in priorities a second thought. The appellate court, reviewing the trial court testimony, saw the change in priorities after the stop as implicating Fourth Amendment concerns that were being taken too lightly by the patrol officer. Defense counsel may have been surprised at how easily the “Yes” came in response to the question. If the officer had insisted that the only reason for the call for backup was his concern for safety, and continued to hold that position, and also continued to investigate any issues raised by the license and registration, defense counsel would have had nothing to build on.

The court completes the summary of the events:

“After the K–9 unit arrived [about eight minutes after the stop began] and Nunnally was removed from his vehicle and his person was checked for weapons, the record shows, the patrol officer next asked Nunnally for consent to search his vehicle. When Nunnally refused, the patrol officer instructed the backup officer (a police canine handler) to walk the dog around Nunnally's car to sniff for the odor of narcotics. The patrol officer was later asked, ‘So basically, whether Mr. Nunnally consented or not, you were going to have that dog walk around the car.’ The officer responded, ‘Absolutely.’”

Again the officer has readily aided the strategy defense counsel has taken by showing that with minimal, and probably not reasonable, suspicion, he was going to make sure a dog sniff occurred, and was going to do so after failing to pursue the initial reason for the stop.

Relying primarily on Georgia state law precedent, the Court of Appeals noted that an officer could, during a traffic stop, investigate and determine if the driver was entitled to continue to operate the vehicle by checking the driver’s license, insurance, and registration. Further, he could question the driver during the traffic stop and, if concerned for his safety, ask the driver and any passengers to exit the vehicle.

The problem that the court found with the police procedure in this case was that the purpose of the stop was not pursued:

“There was no evidence that, once the K–9 unit arrived, either police officer diligently pursued a means of investigation that was likely to confirm or dispel quickly any suspicion related to the observed traffic infractions. Indeed, neither officer so claimed. Rather, the patrol officer acknowledged that, with the K–9 unit at the scene, he turned his attention to a search of Nunnally's car, which search included executing his earlier-formed plan to employ the drug dog to sniff the car's exterior (if Nunnally withheld consent). The purpose of the traffic stop—to enforce the laws of the roadway and to investigate Nunnally's manner of driving with the intent to issue a citation or warning—was thereby temporarily abandoned. Under these circumstances, there was no evidence that the investigative detention of Nunnally lasted ‘no longer than [was] necessary to effectuate the purpose of the stop’ and no evidence that the scope of Nunnally's detention was ‘carefully tailored to its underlying justification.’” (The quoted language in the last sentence was taken by the court from Smith v. State, 281 Ga. 185, 640 S.E.2d 1 (2006).)

Although the court largely confined itself to Georgia state precedent, it might have also cited Justice Brennan’s concurrence in U.S. v. Place, 462 U.S. 696 (1983), saying that it “is clear that Terry [Terry v. Ohio, 392 U.S. 1 (1968)], and the cases that followed it, permit only brief investigative stops and extremely limited searches on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate.” Every patrol officer in this country should be familiar with Terry and Place, and most undoubtedly are.

The Court of Appeals also found no evidence that “the prolonged detention was justified by a reasonable, articulable suspicion of criminal activity.” Nervousness, fidgety hand movements, and not looking an officer in the eye were not enough.

Some courts have found that nervousness can be a factor that will support reasonable suspicion. See U.S. v. Perez, 37 F.3d 510 (9th Cir. 1994) (“Perez’s nervous behavior, his avoidance of eye contact with officer Owens, and his profuse perspiration … all are suspicious factors, even if they would not, alone, be sufficient to justify continued questioning”); U.S. v. Taylor, 934 F.2d 218 (9th Cir. 1991) (defendant’s nervousness at checkpoint constituted “minimal, articulable suspicion”); U.S. v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989) (avoidance of eye contract can be considered suspicious if “special circumstances … make innocent avoidance of eye contact improbable”); U.S. v. Nikzad, 739 F.2d 1431 (9th Cir. 1984) (nervousness and failure to make eye contact gave rise to reasonable suspicion). Often additional factors seem to be emphasized along with the manifestations of nervousness. See U.S. v. Lebrun, 261 F.3d 731 (8th Cir. 2001) (sweating profusely despite cold weather, along with nervousness, wrappers on the floor, and vague answers provided particularized suspicion, at least for officer with 13 years of experience); U.S. v. Smith, 263 F.3d 571 (6th Cir. 2001) (nervousness was primary reason for continued detention after initial traffic stop, but all factors were not sufficient to provide reasonable articulable suspicion).

Nevertheless, the detention might not have had to be prolonged if the purpose of the stop had not been abandoned by the officer, given that the “traffic law enforcement was admittedly suspended while he pursued a drug law investigation.” The court cited Illinois v. Caballes, 543 U.S. 405, 125 S.C. 834, 160 L.E.2d 842 (2005), holding, as stated above, that a drug sniff during a lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

The trial court denied the motion to suppress, emphasizing that the drug dog had arrived approximately eight minutes into the stop, pointing to much longer detentions. The Court of Appeals noted that where longer detentions had been approved, there “was evidence either that, after the stop of the vehicle, the police diligently pursued a means of investigation likely to confirm or dispel their suspicions regarding a traffic infraction or that, during the course of a valid traffic stop, information developed that provided a reasonable, articulable suspicion to prolong the detention beyond the time reasonably required for completion of the traffic stop.” There was no such evidence here, however.

The conviction for marijuana possession was reversed. Had the officers followed properly designed procedures, they would have been able to pursue their suspicions further and quite likely would not have had the evidence from the sniff thrown out.

Some departments advise officers that where two types of nervous behavior exist, the officer does not have reasonable suspicion, but where three are present, the weight swings to the officer. Although no such hard and fast rule is easily extracted from the case law, it is nevertheless true that the more reasons an officer can articulate and document for his or her suspicion, the more likely the officer’s testimony will be able to withstand a defense challenge to a reasonable suspicion argument. In addition to noting suspicious behaviors, the officer should attempt to put in a report how long the behaviors continued and what degree of, say, fidgeting was involved (e.g., the driver dropped his license several times before he could hand it to the officer).

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

Sources: Nunnally v. Georgia, 2011 WL 2437838 (Ct.App. 2011); see also Georgia v. Blair, 239 Ga.App. 340, 521 S.E.2d 380 (Ct.App. 1999) (motion to suppress granted where officer abandoned investigation and detained occupants of car in order to search for drugs); Barnett v. Georgia, 275 Ga.App. 464, 620 S.E.2d 663 (Ct.App. 2005) (no prolongation where drug dog air searched around stopped vehicle before results of driver’s license check were returned to patrol officer).