Near midnight on August 14, 2007, James L. Wiggs was pulled over by a Sarasota County Deputy for running a red light on U.S. 301. While one deputy prepared to write a citation, Deputy Indico conducted a sniff of the car with Zuul, a German Shepherd acquired from Hungary, that Indico had begun training in February 2007. Zuul alerted and a search of the vehicle produced cocaine.
Indico and Zuul had completed an 80-hour narcotics training course offered by the Sarasota Sheriff’s Office and a 400-hour patrol course. A patrol course often focuses on suspect apprehension, but it is not clear that a class of this length would be limited to that topic. The court did not discuss Indico’s experience prior to being paired with Zuul, which would be relevant in determining whether the training he received with the dog was adequate. The team was certified by the Florida Department of Law Enforcement (FDLE) and the National Police Canine Association (NPCA). The certification process had been completed in April 2007.
Zuul’s training was described by the court as follows:
“The dog was trained to detect different scents of narcotics by placing the drug on top of a bean bag so the bag absorbed the scent. Then the bean bag was introduced to the dog in the form of a hide-and-seek game in which the dog used his nose to locate the bean bag. Eventually, the dog was introduced to the actual narcotic. Zuul was trained to detect marijuana, cocaine, methamphetamine, and heroin.
“Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.
“Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.”
It is to be noted that 0.1 gm is a very small amount of material for training; even 100 grams (about 3.5 ounces) is low as well. The amounts perhaps suggest that the dog was being taught to recognize very small amounts of narcotics of a level that would commonly indicate personal use, which the local prosecutor may have been willing to consider a prosecutable level.
To receive NPCA certification, Indico and Zuul had to achieve 75% accuracy, and had to find narcotics in two out of four vehicles and in two out of three rooms in a building. The FDLE certification included apprehension, tracking, and building searches, but did not involve narcotics detection training. They also trained on a weekly basis. Monthly training logs of the team were introduced into evidence.
Deputy Indico kept a monthly report of their field activity, and the reports from April 2007 to August 2007 were also introduced into evidence. When Zuul gave a positive alert but no drugs were found, Indico documented any history of the vehicle or its passengers with drugs, generally deriving the information from interviews of the individuals involved. “If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert.” This is tantamount to accepting hearsay evidence as indicating that residual odor was present, which is weak support for such an argument, but it must be noted that Indico was documenting what information he was provided.
The Florida appellate court reviewed each of the sniffs Zuul had made between May and August of 2007, and calculated that the team had been summoned to 17 vehicle stops, ten of which resulted in an alert with no discovery of drugs. Only four post-alert vehicle searches, including the one involving Wiggs, the defendant in the case before the court, resulted in the discovery of drugs. In all but three of the stops where alerts did not produce drugs, Indico recorded that an occupant of the car admitted to smoking marijuana or had some history involving drugs or people who used drugs, though Indico generally did not follow up regarding the histories he noted.
Reliance on Harris
The Florida appellate court based its decision in large part of its analysis on the Florida Supreme Court case of Harris v. Florida, 989 So.2d 1214, 2011 WL 1496470 (2011), which we discussed previously. In that case the Florida Supreme Court favored a line of Florida cases that had, among other things, considered the dog’s selection, training, and field track record (including false alerts) in determining whether probable cause existed from a dog’s alert. (See discussion of Florida v. Foster, 390 So.2d 469 (Ct. App. 1980) in Police and Military Dogs.)
The appellate court noted the Supreme Court’s emphasis on a dog’s field records:
“[A] dog's alert to residual odor, though different from a false alert, may not indicate that drugs are actually present at the time…. The [Florida Supreme Court] rejected the State's argument that field records are meaningless because dogs do not distinguish between the odor of drugs that are present and residual odors. Instead, the court determined that evidence explaining unverified alerts would allow the trial court ‘to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.’”
The Supreme Court had also emphasized the lack of evidence concerning the dog’s training, and that the prosecution failed to present any quantification of the dog’s success rate in the field because it did not introduce the dog’s field performance records and could not explain the significance of the dog’s unverified field alerts. (Of course, the prosecution may not introduce the field records because of a desire to avoid providing evidence it considered weak and which the defense could attack and perhaps exclude.) The Supreme Court concluded that because the prosecution failed to establish a reliable alert, it failed to establish probable cause, and the motion to suppress should have been granted.
The appellate court in Wiggs believed the same analysis provided by the Supreme Court in Harris should lead to the same result from the facts before it. The appellate court found Zuul’s field performance records to be “problematic.” The court found that Zuul’s accuracy rate was approximately 29%, which it derived from dividing the four alerts leading to drugs by the 14 alerts in total. The court said this “accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert.” The court rejected the prosecution’s argument that, given the admitted drug usage and drug histories recorded in most of the cases, the field accuracy rate was 100%. The prosecution probably overstated the case, since there were some instances where no drug usage or history was noted, meaning that the accuracy rate, even from the prosecution’s perspective, was at most 79% (11/14), but more likely about 64% (9/14). The appellate court acknowledged Indico’s records on prior use or history, but said “the explanations were not specific enough to establish that existence of residual odors on which Zuul should have alerted.” The court thus emphasized what it considered to be poor recordkeeping.
“In five of the unverified alerts, the deputy merely testified that the vehicle had a ‘drug history.’ However, the deputy did not explain what this history entailed or why it ensured that drugs had once been present in those vehicles. In four of the unverified alerts, Deputy Indico testified that someone in each vehicle had used narcotics recently. However, there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect. The absence of this information leaves us unable to evaluate the significance of these unverified alerts. The evidence simply does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs' vehicle. Thus, we are not inclined to consider these nine unverified alerts in Zuul's field accuracy rate.”
The appellate court allowed that one of the alerts not producing drugs nevertheless involved an odor of marijuana strong enough that even Indico could smell it, but that adding this to the accuracy calculation still only brought it up to 36%.
The appellate court also noted the lack of detail regarding the alert to Wiggs’s vehicle:
“No evidence was presented about the nature of the alert, the search of Wiggs' vehicle, or the location of cocaine therein. Thus, it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself. The State has failed to make a connection between Zuul's alert and the discovery of the drugs in this case.”
This criticism is valid, but should also be directed to Indico’s supervisor, who should have seen that Indico’s recordkeeping was inadequate. The appellate court concluded that the motion to suppress should have been granted.
Judge Altenbernd, concurring in the result, was nevertheless “inclined to believe” that the dog’s alert, combined with Wiggs’s sweating and nervousness, along with the imprisonment he told the Sarasota County Deputy about, “should have been enough to permit this search….” This judge raised the issue that was not faced in the majority decision:
“It seems obvious that Zuul is alerting on residual drugs that do not lead to the discovery of arrestable quantities of drugs. It is not that Zuul is alerting when there are no drugs to smell; he is alerting to molecules of drugs left behind in vehicles where drugs have been used or transported. Thus, in Harris, the court is requiring that law enforcement train dogs to distinguish between the odor of minute quantities of drugs and larger quantities of drugs. If that cannot be done for a particular drug, it seems we will need to abandon dogs as a method of obtaining probable cause for that drug.”
This analysis must be questioned. The Florida Supreme Court in Harris was concerned that an absence of field records meant that the prosecution could not establish any aspect of the dog’s performance in the field and no correlation with training records could be made. That was not the case here.
Judge Altenbernd also questioned the use of percentages:
“The dog is merely providing roadside information to help an officer decide whether there is probable cause to perform a search. Even if Zuul helps locate an arrestable quantity of illegal drugs only 36 percent of the time, I am not entirely convinced that evidence seized, based in part on his alert, must be suppressed. The notion that the exclusionary rule will be applied if a dog does not achieve a success rate of any particular percent, whether 25 percent or 75 percent, is establishing a bright line that I am not currently convinced to be constitutionally necessary.”
Courts have often looked at accuracy rates, and have not always expected them to be high. See U.S. v. Donnelly, 475 F.3d 946 (8th Cir. 2007) (accuracy rate of 54%, along with numerous other factors, was sufficient to provide probable cause for search); U.S. v. Limares, 269 F.3d 794, 797 (7th Cir. 2001) (dog gave false positives between 7% and 38% of the time).
Finally, the concurring judge noted that an explosives sniffing dog at Miami airport would not be retired even if his alerts only produced explosives 36% of the time.
Defects in the Opinion
The court’s reliance on Harris is perhaps inevitable, but it is our opinion that more of a distinction should be made between that case and this one than has been made by the appellate court. There, the handler had virtually no field records. Here, the handler had records of every single sniff and every single alert. Where alerts did not result in drugs being found, the handler had consistently made an effort to find out if residual odor was possible. The court seems to feel that some level of recordkeeping would allow for scientific determination of whether residual odor was detected by Zuul, or if something else explained the alerts, such as cueing (an issue not raised in the case). Better recordkeeping could have been required, but would not have proven the existence of residual odor.
Dogs have different levels of minimum thresholds, which is what residual odor is, meaning that the alerts where there was some drug history could have all been correctly made. Indeed, the court’s logic might mean that a dog alerting more accurately, producing more alerts to small concentrations of illicit chemicals, would provide less acceptable evidence than a dog not able to detect such small concentrations. The result would be that the better dog might have an alert thrown out while a dog with less skill could have his retained because he would not detect small and residual concentrations. The judiciary should not be creating law that favors the less accurate instrument over the more accurate instrument.
Indico could have more carefully documented the circumstances that might indicate the dog was alerting to residual odor, but in many cases the occupants of a vehicle were making an admission against interest and might be inclined to put their prior usage further back in time to reduce potential risk from the admission. Looking up records of prior crimes and encounters with the police would hardly produce a complete description of when the drugs that left the residue were actually present, though the effort should have been made.
The appellate court is correct in saying that “it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself.” This could eliminate a great many alerts, since a dog may sometimes alert at a part of a vehicle relatively distant from the location where drugs are found. Other factors come into play. The driver might smoke a joint, throw it away, but then open the car door with the hand that held the joint. Cocaine, on the other hand, may never be in direct contact with the user’s hands.
The court complains that “there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect.” Some higher level of precision might be reached if sophisticated forensic testing were required to determine a dog’s threshold, but these thresholds vary from dog to dog and day to day, and requiring such precision in order to justify use of a dog would effectively mean that the inability to precisely calibrate a dog would become an argument against using them at all. No exact molecular level of illicit chemicals in the atmosphere would guaranty that illegal drugs are present. Too many factors affect the diffusion of chemicals—the type of drug, the amount of it present, how it is packaged, where it is hidden, temperature, humidity, wind level, the dog’s health, and so forth. These factors would be relevant to the operation of any chemical detection apparatus. The dog’s alert is an indication that some level of narcotic chemicals are in the atmosphere. That is what it is trained to detect. An actual presence of chemical odor detected by a properly trained and certified canine, with adequate documentation of field work that does not negate the skill of the dog, should be enough for probable cause.
The court then states that the “evidence does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs’ vehicle.” The question should not be whether the dog only recognizes a threshold amount of chemical such that a search will inevitably result in a finding of drugs, but whether there is a sufficient probability that a search is justified. A large amount of drugs removed several days or hours before the sniff may leave as much odor as a small amount of drugs presently in the vehicle but well hidden and tightly packaged. The dog cannot be expected to distinguish between these two possibilities as this court seems to require.
The concern in Harris, as we read it, was that there were no field records for the dog involved. The Florida Supreme Court there stated:
“Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog's reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog's performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.”
Thus, the Florida Supreme Court concluded that field records were essential to determining the dog’s reliability. Although that court was concerned with alerts that did not produce drugs, the primary focus of the argument was that the dog should be found to be reliable in finding drugs. The point of field records is not to establish the ratio of false alerts to residual alerts, but to provide another tool for assessing reliability by determining whether there might be a trend in the dog’s alerting pattern that would indicate that its accuracy has declined, an issue that should be attended to through additional training. There were no field records in Harris, making this part of the evaluation impossible. The Harris court acknowledged the prosecution’s argument in that case that it was impossible to distinguish a false alert from an alert to residual odor, but said that because “the State did not introduce field performance records, the State was not able to explain the significance of any unverified alerts in the field.” In Wiggs, there were field records. Comparing the field records and the training records, the argument could be made that Zuul was alerting to residual odors a significant portion of the time. No such argument could be made in Harris. The burden should be on the defense, once field records were produced, to establish that they indicate the dog’s skill has not remained at the appropriate level. That was not done by the defense here. The defense merely raised the possibility that the field records indicated a high proportion of alerts to residual odor. Saying that the proportion of residual alerts was high does not establish that the dog must have been falsely alerting a high portion of the time as well. That is the assumption that the appellate court seems to have accepted.
Since Zuul’s training records in the present indicated a consistent level of accuracy, the number of alerts not leading to the discovery of drugs here could argue that the dog was sometimes alerting to residual odor. A smart drug dealer will not travel around with drugs in his car unless he is making a purchase or delivery. The behavior patterns of criminals in the Sarasota area should not be a reason for negating the alerts of a dog.
When we reviewed Harris, we concluded that it was correctly decided. We based that judgment on the fact that the court determined that defense counsel had the right to review field records, and a lack of such records meant that significant evidence concerning the dog’s behavior was not being made available to the defense. Here, those records were provided. The fact that the dog’s field records are inconsistent with its training records can be more easily explained by the presence of residual odor than by some sudden and unexplained drop in the dog’s accuracy. Alternatively, the defense could have argued that the dog was being cued in the field, an argument that could have had some cogency if evidence for it had been presented. Still, that would be an argument based on the handler’s failures, not the dog’s. The appellate court’s determination to lay the blame on the dog is misplaced, not only as to this case, but also as to canine detection law in general.
This case was poorly reasoned and decided incorrectly. There were deficiencies in Indico’s practices, but they were not of such a level that the appellate court should not have deferred to the trial court’s determinations.
This piece was written by John Ensminger and L.E. Papet.
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