Monday, March 28, 2016

If Your Dog Doesn’t Alert, We Can’t Search the Car, So Let's Call that Jump an Alert: Florida v. Harris Doesn't Throw Out Many Sniffs, but This One Had Too Many Flaws

Gregory Heald was stopped for a traffic infraction on July 16, 2015.  During the stop, a K-9 team performed a sniff of the vehicle, which led to a search during which police discovered narcotics, paraphernalia, a firearm, and a cell phone with incriminating information. Heald moved to suppress the evidence found in his vehicle as fruit of an illegal search. Although the federal court for the Western District of Arkansas determined that the officer stopping Heald had reason to prolong the stop, the court also determined that the search of the vehicle violated the Fourth Amendment. U.S. v. Heald, No. 5:15-CR-50064-001, 2016 WL 797587 (WD Ark., February 25, 2016). 

A concerned citizen of Springdale, Arkansas, began calling police to tell them about suspicious activity at a neighbor’s house, activity that suggested the occupant might be engaging in drug trafficking. The police put the house under surveillance. The police followed a silver Toyota Camry that had been parked in the driveway of the house, and which the concerned neighbor said she may have seen loaded with several bags taken from the house. After stopping at a market, the driver of the Camry committed several minor traffic infractions, for which the police stopped the car. Equipment in the police car captured both video and audio of the stop. 

After calling dispatch with license and registration information on the driver, Gregory Heald, Officer Guillermo Sanchez asked to search the Camry, but Heald denied the request. Sanchez asked if Heald had anything illegal in his vehicle, which according to Sanchez made Heald nervous. Sanchez asked the dispatcher to send a K-9 team but was told that the on-duty team was busy and that he would have to wait for an off-duty team to arrive. One of the other detectives on the scene suggested that Sanchez get Heald out of the car and engage him in small talk until the K-9 team could arrive. The K-9 team arrived about 26 minutes after the stop began. 

During the interval before the K-9 team arrived, Sanchez asked Heald why he was sweating so much and Heald replied that it was hot and that he smoked two packs a day. Heald acknowledged that he had been charged in Colorado with “conspiracy for meth.’” Heald declined to grant permission for a search of his person. Sanchez eventually told Heald that they were waiting for a K-9 unit. At 4:22 p.m., Officer Edgar Hernandez arrived with his K-9 partner, Bosco, and within two minutes they began their open-air drug sniff. 


Bosco’s history is described by the federal district court as follows:

Bosco is a 3 or 4 year-old German Shepard [sic] that was imported from Hungary by Criss Gardner, the owner of Von Klein Stein Working Dogs in Sherwood, Arkansas. Bosco attended Gardner’s Working Dogs school beginning in February or March of 2015 to learn to be a narcotics detection dog. After 8 to 10 weeks of training, Bosco’s handler, Officer Hernandez, began training with him at the Working Dogs school. Their training together included detection of methamphetamine, in addition to other types of drugs. Bosco was trained to signal the presence of narcotics with a passive alert. This means that when Bosco detects the scent of drugs, he is supposed to sit or lie down. Bosco and Officer Hernandez both performed well at the school. Consistent with this performance, Bosco’s SPD training records from April 20, 2015 and May 27, 2015 indicate that he correctly located methamphetamine during training, and his training logs from the months of June and July of 2015 show satisfactory performance across the board.

Bosco generally worked at night.  In ten situations in which he had alerted, drugs were found nine times.  The one time nothing was found involved a driver who admitted that he had recently smoked marijuana in his vehicle.  The afternoon that Bosco and Hernandez were called to perform a sniff, despite the fact they were off-duty, is described by the court as being very hot. 

On July 16, 2015, Officer Hernandez was off-duty at Wal-Mart when he was asked whether he and Bosco could perform an open-air drug sniff on Heald’s vehicle. While Officer Hernandez was at Wal-Mart, Bosco was in the backyard at Officer Hernandez’s house, in over 90-degree heat. Officer Hernandez drove home from Wal-Mart, parked in his driveway with his windows rolled up, turned off his vehicle, and went inside to change into his police protective gear. After he changed into his gear, he brought Bosco out to his vehicle and put him in the back seat. He noticed that the vehicle was hot, and that Bosco was hot. Additionally, the air conditioning did not work well in his vehicle, so the ride from Officer Hernandez’s house to Heald’s vehicle was hot for Bosco as well. In short, Bosco was very hot by the time he got to Heald’s vehicle, and he was not accustomed to working in such conditions, as all of his previous shifts were during the cool of night.

Although 90 degrees is hot, the dog was in a back yard and not working, and it would not automatically be expected that this should have prohibited working.  If it did prohibit working with this particular dog, the handler’s knowledge of this limitation should have been explored further. 

The Long Sniff

The court notes that when Hernandez and Bosco arrived at the location where Heald’s car had been stopped, Bosco was panting and his tongue was “drooping out of his mouth.”The court gives additional detail:

The sniff begins on the front driver side of the vehicle. Officer Hernandez—at this point and frequently throughout the search—uses his hand to guide where he wants Bosco to sniff. As he later testified, this is a method to keep the K-9 focused, and whenever he employs the method, it means that Bosco is not focused on the sniff….  On the first pass by the driver side, Bosco pays no attention to the car. On the second pass, Bosco follows Officer Hernandez’s hand when he flicks his wrist through the open front driver-side window, and briefly places his front paws on the window opening. Officer Hernandez next leads Bosco on an uneventful trip around the back and passenger side of the vehicle, then takes him off camera to down him in the shade. After another brief pass by the passenger side about 30 seconds later, Officer Hernandez again downs Bosco in the shade.

A handler guiding a dog’s sniff with his hand for a detailed sweep is sometimes an indication that a dog is not fully trained.  After spending a minute in the shade, the following happens:

Officer Hernandez brings Bosco to the passenger side of the vehicle. On this pass, Bosco places his paws on the rear passenger side door, again after Officer Hernandez places his hand there. The team continues around the front of the vehicle, and along the driver side a few times. On the second pass by the driver side, Bosco again puts his paws on the front window opening after Officer Hernandez points to it. On the fourth pass, Bosco does the same thing, again after Officer Hernandez places his hand in the area. After a few more uneventful passes by the rear and passenger side of the vehicle, Officer Hernandez takes Bosco into the shade at the 16:28:20 mark of the video.

Hernandez told one of the officers on the scene that Bosco was “burning up.” Some effort to find water was made but it is not stated that any was found. Three minutes later Hernandez again led Bosco to the Camry.

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle. Moving around to the driver side, Bosco again places his paws on the window opening. This time, while Officer Hernandez’s hand is tracking along the top portion of the side of the vehicle, he does not motion up towards the opening. After a couple more passes by the rear of the vehicle, Officer Hernandez brings Bosco to the shade again. Around the same time, at 16:32:11, Officer Sanchez’s in-car audio recording picks up a conversation between two unidentified persons. The first asks “did they get an indication yet?” and the second responds that it “doesn’t appear so.”

Hernandez tries yet again:

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle at 16:32:16. On his second run down the passenger side of the vehicle, Officer Hernandez keeps his hand low, apparently as a guide to get Bosco to focus on the lower portion of the vehicle. At 16:32:30, while Officer Hernandez’s hand is low, Bosco lies down for an instant. He does this again five seconds later. Officer Hernandez then takes Bosco to the shade, and at 16:33:00 says “he’s not even looking, he’s fucking burning up ... let me run him one more time, but he’s burning up.” Following this statement, the conversation becomes difficult to hear. But, listening in Chambers with noise-cancelling headphones, the Court believes that Officer Sanchez says something along the lines of “I thought it was an alert, like right there” or “I thought it was—what happened right there?”—a reference to Bosco having just lied down twice at the passenger side. It sounds to the Court like Officer Hernandez then responds “well, that’s just to kind of to get him to check [inaudible for a couple of seconds] the car, so it’s not a—not an alert.”

The description indicates that Bosco may have been lying down from both the fact Officer Hernandez was keeping his hand low, almost like a hand signal to lie down, and perhaps partially from the heat. In any case, there is no indication this was taken as an alert by the handler. The court's description also shows how badly some of the officers involved wanted something to be called an alert, even though Hernandez, as the handler, was the only one who should have been able to call an alert.  Hernandez tried one last time:

Officer Hernandez begins the final run on the driver side of the vehicle at 16:34:40. On the first pass, Bosco does not pay attention to the vehicle. Officer Hernandez then jerks his leash a bit, and runs Bosco down the driver side again, this time using his hand as a guide. As Officer Hernandez passes by the open front window, he again flicks his hand in the window. After a short pause, Bosco jumps into the vehicle through the window. This happens at 16:34:49. At 16:34:55, Bosco honks the vehicle’s horn. Bosco jumps back out the window at 16:34:59. This essentially concludes the open-air drug sniff.

After this, Hernandez can be heard in the audio saying, “I’m fucking debating it because he’s not suppose to jump in cars like that—nunca,” using the Spanish word for never.  Nevertheless, a minute later Sancez announced that “we’re gonna search,” and he proceeded to do so.  The court noted that “Officer Hernandez chose to omit Bosco’s jump from his written report and instead wrote that Bosco provided a final indication on the passenger side of the vehicle,” which was not a reference to the jump but rather to the dog’s lying down several minutes earlier, which the audio indicates was not being recognized as an alert at the time it happened. 

The search revealed:
  • two plastic baggies with methamphetamine
  • one meth pipe
  • syringes
  • one scale
  • firearm (in trunk)
  • cell phone (in trunk)
Heald was arrested at the scene. Subsequently he was indicted by a grand jury for intent to distribute methamphetamine and for being a felon in possession of a firearm. A superseding indictment added a charge of possession of a firearm in furtherance of a drug trafficking crime.

Bosco’s Alert Insufficient to Create Probable Cause

The federal district court found that Officer Sanchez “had the reasonable suspicion of criminal activity necessary to prolong the duration of Heald’s seizure beyond the time necessary to investigate a traffic infraction.”  The case, however, fell apart because of the circumstances of Bosco’s sniff.  The court began its analysis of the sniff by reviewing the U.S. Supreme Court’s decision in Florida v. Harris, 133 S.Ct. 1050 (2013), noting that Justice Kagan had allowed that “circumstances surrounding a particular alert may undermine the case for probable cause.” 

The district court found no fault with “Bosco’s (or Officer Hernandez’s) training and certification records,” but it did have a problem with “the circumstances surrounding Bosco’s supposed alert….”

To begin, Bosco had never conducted a single sniff in the field during the day time, let alone in over 90-degree heat…. Add to this the fact that Bosco had been in Officer Hernandez’s backyard in the heat for some time that day, and then travelled in a hot car before arriving to the scene, and any reasonable person would begin to question Bosco’s ability to reliably perform. Indeed, Officer Hernandez himself testified that on a scale of 1 to 10, with 10 being concerned that Bosco was about to die, he was at a 7 that day…. Moreover, Officer Hernandez knew that the heat was in fact affecting Bosco’s performance. He stated at the time that Bosco was “fucking burning up” and “not even looking.” … This cause for concern was, ironically, at least somewhat corroborated by the Government’s own expert. Criss Gardner testified that, in viewing the MVR, he “immediately could see a dog that was overheated,” and that the high heat would “absolutely” affect Bosco’s performance or actions…. Remarkably, after Mr. Gardner had commented that Officer Hernandez appeared frustrated with Bosco, he stated that “most dogs that get frustrated or really want to get out of the heat, they will give you a sit response in some cases. Again, you know, they will try to sit to appease the handler.” … In other words, an overheated and frustrated dog, like Bosco was that day, is prone to giving false alerts.

The court noted that the duration of the sniff was “unusually long,” and said that while this was “normally an innocent factor,” here it indicated that “as the minutes passed, Bosco’s exposure to the heat became prolonged, and so his ability to perform continued to diminish.” 

Training May Not Have Been Adequate

Jumping through a window was not how Bosco was trained to alert.  Rather “he sits or lies down to display final indication when he detects the presence of narcotics.” 

Officer Hernandez was uncertain about whether Bosco’s leap even constituted an alert. He stated to Officer Sanchez that he was “fucking debating it” because Bosco is never supposed to jump in cars…. The Court believes that a reasonable person would no doubt share Officer Hernandez’s skepticism. An overheated dog exhibiting a new and untrained behavior is not a shining example of reliability.

Defense counsel, in moving to exclude the canine evidence, had correctly noted that the jump through the window might have been an indication the dog was not properly trained:

Additionally, it appears that the K-9 was not adequately trained. According to Officer Hernandez, “Bosco” jumped inside the vehicle through the open driver’s side window. As Officer Hernandez noted, “Bosco” was not trained to jump inside cars. This activity calls into questioning the K-9’s training. Moreover, while the K-9 in this matter appears to have received training approximately three months prior to participating in this case, the training logs do not appear to log any false detections which is suspicious. The records do not reflect the amount of substances the K-9 is trained in. The records also appear to show that the K-9 only logged two days of training in narcotics detection on the exterior of vehicles prior to participating in this case, with only one of those days involving methamphetamine detection. (brief in support of motion retrieved from Pacer)

The failure of the dog to alert to methamphetamine should also have received more analysis.  A dog trained on methamphetamine produced by one cooking method will sometimes not alert to methamphetamine cooked another way. It is advisable to train on pharmaceutical grade materials when possible, but Bosco may have been trained on batches of methamphetamine cooked in the same way. 

Handler Changes Position on Alert

Because the microphone was briefly obstructed, the court noted that it could “not know how Officer Hernandez went from ‘debating it’ to determining that Bosco’s jump was an alert creating probable cause.” This, of course, assumes that the Hernandez had not changed his mind about the dog lying down when he was pointing low, though this is unclear.  Because the court’s description of the circumstances around declaring an alert might be seen as suggesting that Officer Hernandez had changed his opinion in hindsight, perhaps under pressure to create a reason for a search, the court felt obliged to defend the officer’s behavior:

None of this is to say, or suggest, that Officer Hernandez’s conduct was dishonest. Rather, the Court agrees with his own assessment—that he was “not on his game” that day—and further believes that he was not on his game when he later wrote his report…. Thus, to an overheated K-9 working in unfamiliar conditions, exhibiting a behavior that he was not trained to exhibit, the Court can add an understandably distracted handler, who, to boot, flip-flopped on how and whether Bosco alerted: In the moment, Officer Hernandez was debating whether Bosco’s jump was an alert. And then later, he identified as an alert a behavior (Bosco’s lying down) that he said in the moment was not an alert.

Although the court may have inserted such a comment to shield Officer Hernandez from administrative criticism or sanctions, in the context of a criminal prosecution this also limits the defendant’s ability to call into question the actions of an officer who is providing evidence to be used against him. Clearly Hernandez was addled and feeling pressure to justify a search from the other officer’s present.  Nevertheless, he should not have responded to that pressure by calling an alert from behavior that the dog had not been trained to use as an alert, as the court believes he had done.


The court then considers “unintentional cueing.” 

The Court cannot help but observe that whenever Bosco was focused on the vehicle, he followed Officer Hernandez’s hand almost the entire time. When Officer Hernandez had his hand low, Bosco sniffed low; when he had his hand high, Bosco sniffed high. When he flicked his wrist towards the open window, Bosco jumped on the window opening, or jumped through that opening.

The expert witnesses for the prosecution and defense disagreed as to whether the handler’s conduct could lead to unintentional cueing, but the court concluded it was a “possibility.” Given the number of passes and the amount of pointing, the dog's thirst and likely desire to get water or be somewhere else, it is perhaps interesting that there was not more alerting behavior.  Thus, to say that cueing was only a possibility, and to say that it was unintentional, is to give some slack to Officer Hernandez.

Combination of Factors Undermine Reliability of Alert

The court did not think any single problem with the circumstances of the alert meant that probable cause was not established, but felt the combination of the problems did:

Any one of the above factors alone would not be sufficient to render Bosco’s supposed alert unreliable. The mere fact that it was hot out is alone not enough; that Bosco previously only worked in the cool of the night is alone not enough; that the heat admittedly affected Bosco’s performance is alone not enough; that Bosco was often not paying attention is alone not enough; that his supposed alert was not how he was trained to indicate is alone not enough; that Officer Hernandez was off his game and distracted is alone not enough; that he could not readily determine whether Bosco alerted is alone not enough; that he later changed his version of how Bosco alerted is alone not enough; that there was some possibility of unintentional cueing is alone not enough; and that the sniff lasted an abnormally long time is alone not enough. But, taking all of these facts together, and viewing them in the totality of the circumstances, a reasonable person would not think that Bosco’s actions created a reliable alert, such that a search would reveal contraband.

The court thus concluded that there was insufficient evidence that Bosco had alerted, but that even if he had, the alert “was not sufficiently reliable to establish probable cause.” 

The court ruled that the evidence found as a result of the search had to be suppressed. 


It is our interpretation on the facts as presented by the court that there was no alert, and that the official record thus appears to have been falsified.  This alone should lead to a dismissal.  The entire episode suggests a rather insecure handler, with the repeated association of the neutral stimulus with whatever reward system the handler used creating a strong possibility of cueing an alert to get the reward. For a discussion of relevance of the work of Pavlov and Skinner in this regard, see “Training Fundamentals and the Selection of Dogs and Personnel for Detection Work,” by Minhinnick, Papet, Stephenson, and Stephenson, forthcoming in Canine Olfaction Science and Law.

We have argued in the Journal of Animal and Natural Resource Law that Florida v. Harris comes very close to making dogs “walking search warrants.” It might be argued that this case conflicts with our argument and indicates that courts will continue to be critical of questionable practices during sniffs of vehicles.  Nevertheless, the court required a number of problems to exist before it negated the search here: (1) an overheated dog; (2) a variation in standard work temperatures and time of day for the dog and handler; (3) calling an alert from behavior the dog was not trained to use in an alert; (4) an officer “off his game and distracted;” (5) that officer’s alteration of the official record; (6) the possibility of unintentional cueing; and (7) an abnormally long sniff.  To require that all these circumstances be present would limit the value of the decision to this case alone. To require that more than half of them be present would not widen the applicability of the decision very much. 

It is also to be noted that the defendant would not have been successful in defeating probable cause here without both the video and audio of the stop. Since many stops do not have clear audio (not all the audio was clear here), the defense bar should be pushing for universal use of audio equipment along with video equipment. 

To say, as the court did, that the possibility of cueing would not alone overcome the value of an alert is particularly disturbing.  If the possibility is remote, such a perspective may be justified, but if there are clear indications that cueing is likely (regardless of how much intention was involved), then reasonable cause for a search has not been provided. In no event should a behavior that a dog is not trained to give as a final indication be taken as an alert, even if the handler is the one calling it an alert on the scene. Unfortunately, we believe that the case is such an outlier that it reinforces the defects of Florida v. Harris rather than adding nuance or limitation to that case’s applicability. 

This blog was written by John Ensminger and L.E. Papet.  
© John Ensminger and L.E. Papet 2016.

No comments:

Post a Comment