A Texas court found that there is "little distinction between a scent lineup and a situation where a dog is required to track an individual’s scent over an area traversed by multiple persons.” Winston v. Texas, 78 S.W.3d 522 (Court of Appeals, 14th Dist., 2002). This supposed similarity, almost identity, of tracking and trailing to scent lineups, has been used by courts in applying the same foundational requirements to the admission of both types of evidence. There are, in fact, numerous differences between the two canine functions, and some are significant from a forensics perspective. The following list of differences is probably not exhaustive. Tracking and trailing descriptions are in Roman type, while scent lineup descriptions follow in italics.
1. Dogs trained to follow tracks or trails of targets usually on long, loose leads. Dogs trained in procedures designed to emphasize matching of scents correctly; dogs work either on lead or off lead in testing area.
2. Dogs may be trained in other police dog functions, or may be tracking specialists. Dogs may be trained in other police dog functions, but are generally specialists in European procedures and in the most reliable protocols.
3. Dog ideally scented to object touched by perpetrator but sometimes scented to area where perpetrator likely to have been present; dogs occasionally scented to pads. Dog scented to object likely to have scent of perpetrator or to scent pad created from object perpetrator may have touched.
4. Scent occasionally extracted and enhanced by scent transfer unit. Scent on scenting item and scents in stations of lineup frequently extracted and enhanced by scent transfer unit.
5. Dog more often following foot scent as individual human odor. Dog more often scented to objects touched by perpetrators’ hands but may be scented to item touched by another body part (e.g. elbow, face).
6. Scent source may have been touched by multiple individuals (“missing member” may be performed to eliminate non-suspects); track may have been crossed by multiple individuals. Scent source may have been touched by multiple individuals; lineup design generally precludes scents from individuals other than the suspect and foils in the lineup stations.
7. Dog must ignore cross tracks laid at different times generally by unknown individuals. Dog must choose between objects ideally scented at same time and by individuals of same gender, age, and ethnicity of suspect; objects are generally identical or alike.
8. Dog need not choose any individual but may lead to suspect. Dogs choose between a number of objects scented by target and decoys (in zero trials, no choice is correct).
9. Dogs may work in tandem or in groups. Dogs should always work alone; when trials involve using multiple dogs, equipment generally must be cleaned between each trial.
10. Object of work is to find path taken by perpetrator and find objects perpetrator may have left, and possibly find perpetrator. Object of trial is to determine if suspect was perpetrator.
11. Handler may have to know facts about perpetrator in case he encounters him or her while tracking (particularly if perpetrator may be armed and dangerous). Handler should be unaware of correct station and dog should not be able to see experimenter or other individual who knows correct station during trial.
12. Trail may be followed by more than one team at more than one time. Equipment must be cleaned between trials if dogs may have left saliva at scenting stations.
13. Trail cannot be followed after scent disappears. Test can be performed as long as scents are preserved.
14. Procedure may produce additional evidence (e.g., items dropped or abandoned by perpetrator, locations where perpetrator may have been). Procedure does not produce additional evidence.
15. Tracking occurs in diverse environments; dog may track to a building or vehicle, implicating privacy interests. Procedure generally conducted in police station or other facility.
16. Procedure rarely videotaped. Videotaping increasingly common and often required.
17. Tracking foundational requirements apply. Tracking foundational requirements require adaptation or ignoring (e.g. putting on track where perpetrator likely to have been; tracking continuously).
18. Cueing the dog generally only possible if suspect is encountered; dogs may sometimes be forced to follow a path against their inclination. Cueing the dog possible if the handler or other participant in the lineup visible to the dog knows the position of the suspect’s scent in the lineup.
19. Dog may have to be rescented if it loses trail or becomes distracted. In optimal protocols, dog will will not be rescented during trial.
20. Environment of tracking generally cannot be controlled beyond limiting interference of other investigators or bystanders. Environment should be highly controlled to avoid contamination and cueing.
I’ve discussed the distinctions between tracking and scent identification in a working paper posted on the Social Science Research Network (SSRN), Canine Tracking and Scent Identification: Factoring Science into the Threshold for Admissibility.
For a detailed discussion of the state of the law and research on scent lineups, see another working paper, Scent Identification in Criminal Investigations and Prosecutions: New Protocol Designs Improve Forensic Reliability, by Tadeusz Jezierski, Michael McCulloch, and me, also posted on SSRN.
The authors would appreciate comments on both of these papers. Please send comments on either paper to me at jensminger@msn.com.
Showing posts with label cueing the dog. Show all posts
Showing posts with label cueing the dog. Show all posts
Monday, August 30, 2010
Thursday, June 3, 2010
Attacking Probable Cause from a Drug Dog’s Alert: Look at the Dog’s History and Check the Dashboard Video
A Salt Lake City police officer was staking out a house for drug and gang activity. He checked the plates of a Cadillac parked in front of the house and found that it lacked insurance and its registration had expired. When a man and a woman got into the car and began to drive away, the officer stopped them. Two minutes later an officer arrived with a K-9 patrol dog with narcotics detection training. This officer thought the car matched the description given of a vehicle involved in a robbery. While the first officer’s questioning continued, the second brought his dog to the passenger side of the Cadillac, where, according to the handler, the dog alerted. The handler then allowed the dog, named Oso, inside the car where the handler said that he alerted to the front seats. He opened a fanny pack on the seat and found a Ruger semiautomatic handgun.
The driver, William Vincent Clarkson, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1) (“It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm or ammunition….”). Clarkson moved to exclude the canine evidence based on the dog’s lack of reliability. The trial court denied the motion, saying that the officers reasonably relied on Oso’s alerts, and noting that in Illinois v. Caballes, the Supreme Court said only that a sniff should be performed by a “well-trained narcotics-detection dog.” 543 U.S. 405, 409 (2005).
Clarkson appealed. The Tenth Circuit held that there was a reasonable articulable suspicion for the initial stop, the questioning of the driver, a pat-down of the driver to check for weapons, and the initiation of the dog sniff. What the Tenth Circuit was not satisfied about was whether the dog’s alerts (outside and inside the car) had provided probable cause for the subsequent search. The Tenth Circuit said that probable cause could not simply be established by the fact the officers had no evidence the dog was not reliable. The circuit court said that this would amount to a good faith justification for a search and “would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it.”
The circuit court did not think it was asking for much. All the prosecution had to do was show that the dog had been certified, or that its training had been sufficient to reach a certification level. Oso had, in fact, not been certified, as an injury prevented him and his handler from completing the final two weeks of an eight-week training program. It would generally have been relatively simple to establish that the dog could do the job anyway but two things got in the way: the defense counsel was not asleep at the wheel, as too often happens with canine evidence, and the whole traffic stop was caught on video. These two factors merged when the defense hired an expert, Steven Nicely, who noticed that Oso’s alerts from the handler’s descriptions were not consistent with what was visible on the video of the traffic stop, where the dog seemed primarily to bark outside the vehicle and did not lie down inside the vehicle as the handler had described.
Nicely also noticed that the video demonstrated that Oso did not stay with a “closed-mouth sniff” through the procedure. Nicely testified that without actively sniffing, Oso would have been unable to properly detect drugs. Even more serious, Nicely suspected that the handler might have been cueing the dog to alert when they approached the passenger side door. The handler also told Nicely that he was thinking of changing the dog’s alert from a passive alert (usually sitting or lying down) to an aggressive alert (such as scratching or biting). That meant that the dog’s alert had not been fixed, which meant to Nicely that Oso had not received enough training.
The dog’s training records were apparently so sparse that Nicely could not form an opinion as to what the dog had actually learned. The district court held that the defendant had satisfied his burden of demonstrating that Oso was unqualified to serve as a narcotics detection dog at the time he was deployed in this case. The search of the vehicle was therefore not supported by probable cause. The handgun was suppressed. U.S. v. Clarkson, 2007 WL 2406942 (D.Utah 2007), 551 F.3d 1196 (10th Cir. 2009), on remand, 2009 WL 1651043 (D.Utah 2009).
Nicely has become the bane of detection dog handlers. As far back as 1996, defense counsel in a traffic stop set up something of a sting operation to see if Illinois state troopers were targeting black and Hispanic drivers for traffic stops and dog sniffs. A private investigator involved in this effort was stopped and a trooper’s dog alerted, resulting in a fruitless search. Nicely provided a report that persuaded the court that the handler was not automatically entitled to qualified immunity. A recent Eight Circuit case quoted Nicely as saying that an Iowa state trooper was not a well-trained detector dog handler and his dog was not a well-trained detector dog. U.S. v. Winters, 600 F.3d 963 (8th Cir. 2010). Nicely’s testimony has not been restricted to narcotics detection dogs. In a 1998 Texas case, he testified that an accelerant detection dog’s handler was not training his dogs in such a way as to produce reliable results. Another witness argued that the dog may have detected mineral spirits, not gasoline. Fitts v. State, 982 S.W.2d 175 (Tex.App. – Houston 1998).
Courts have not always been impressed by Nicely, however. See U.S. v. Prokupek, 2009 WL 2634446 (D.Neb. 2009) (“The Court does not find the Defendants' expert, Steven Douglas Nicely, credible. His relevant experience is lacking. The other expert testimony clearly established Rocky's certification and reliability using accepted familiar standards. Rocky positively alerted and indicated to the presence of drugs in the car, and Prokupek clearly appeared under the influence.”). Even more critical was U.S. v. Olivares-Rodriquez, 2010 WL 1137498 (N.D. Iowa 2010), a case where the handler said the dog gave an aggressive alert outside a vehicle that turned out to contain cocaine. The dog jumped up against the rear bumper, gave a scratch, then repeated this action twice more. Nicely argued that the handler, by tapping the vehicle, and saying “Drugs, check!” was cueing the dog. The prosecution’s expert argued that the handler was just indicating where the dog should sniff. The court agreed with this expert, and leveled a jab directly at Nicely:
“The court further finds that although Nicely appears to have considerable experience in the area of dog training, his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous.”
Sentences like these will ricochet among litigators looking for experts in cases with canine aspects, and the district court’s assessment could reduce Nicely's value to the defense bar. I advise experts who testify a lot, and particularly who expect an income from testifying, be careful what cases you take, and don’t always work for the same side.
For more on how a dog's history can be brought into a probable cause hearing, see the decision of the South Dakota Supreme Court in State v. Nguyen, 726 N.W.2d 871 (Sup.Ct. 2007). The court found three divergent views as to how a drug dog's reliability may be shown:
1. Jurisdictions deeming a dog reliable solely by showing dog was trained and certified.
2. Jurisdictions deeming a dog's training and certification prima facie evidence the dog is reliable, shifting the burden to the defense to challenge the presumption.
3. Jurisdictions that require or allow a dog's field activity reports, along with evidence the dog is trained and certified, to be considered in determining reliability.
The court also noted that a number of appellate courts have found the decision ultimately rests with the trial court. See also the Ohio appellate decision, also involving Nguyen, State v. Nguyen, 157 Ohio App.3d 482, 811 N.E.2d 1180 (2004).
The driver, William Vincent Clarkson, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1) (“It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm or ammunition….”). Clarkson moved to exclude the canine evidence based on the dog’s lack of reliability. The trial court denied the motion, saying that the officers reasonably relied on Oso’s alerts, and noting that in Illinois v. Caballes, the Supreme Court said only that a sniff should be performed by a “well-trained narcotics-detection dog.” 543 U.S. 405, 409 (2005).
Clarkson appealed. The Tenth Circuit held that there was a reasonable articulable suspicion for the initial stop, the questioning of the driver, a pat-down of the driver to check for weapons, and the initiation of the dog sniff. What the Tenth Circuit was not satisfied about was whether the dog’s alerts (outside and inside the car) had provided probable cause for the subsequent search. The Tenth Circuit said that probable cause could not simply be established by the fact the officers had no evidence the dog was not reliable. The circuit court said that this would amount to a good faith justification for a search and “would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it.”
The circuit court did not think it was asking for much. All the prosecution had to do was show that the dog had been certified, or that its training had been sufficient to reach a certification level. Oso had, in fact, not been certified, as an injury prevented him and his handler from completing the final two weeks of an eight-week training program. It would generally have been relatively simple to establish that the dog could do the job anyway but two things got in the way: the defense counsel was not asleep at the wheel, as too often happens with canine evidence, and the whole traffic stop was caught on video. These two factors merged when the defense hired an expert, Steven Nicely, who noticed that Oso’s alerts from the handler’s descriptions were not consistent with what was visible on the video of the traffic stop, where the dog seemed primarily to bark outside the vehicle and did not lie down inside the vehicle as the handler had described.
Nicely also noticed that the video demonstrated that Oso did not stay with a “closed-mouth sniff” through the procedure. Nicely testified that without actively sniffing, Oso would have been unable to properly detect drugs. Even more serious, Nicely suspected that the handler might have been cueing the dog to alert when they approached the passenger side door. The handler also told Nicely that he was thinking of changing the dog’s alert from a passive alert (usually sitting or lying down) to an aggressive alert (such as scratching or biting). That meant that the dog’s alert had not been fixed, which meant to Nicely that Oso had not received enough training.
The dog’s training records were apparently so sparse that Nicely could not form an opinion as to what the dog had actually learned. The district court held that the defendant had satisfied his burden of demonstrating that Oso was unqualified to serve as a narcotics detection dog at the time he was deployed in this case. The search of the vehicle was therefore not supported by probable cause. The handgun was suppressed. U.S. v. Clarkson, 2007 WL 2406942 (D.Utah 2007), 551 F.3d 1196 (10th Cir. 2009), on remand, 2009 WL 1651043 (D.Utah 2009).
Nicely has become the bane of detection dog handlers. As far back as 1996, defense counsel in a traffic stop set up something of a sting operation to see if Illinois state troopers were targeting black and Hispanic drivers for traffic stops and dog sniffs. A private investigator involved in this effort was stopped and a trooper’s dog alerted, resulting in a fruitless search. Nicely provided a report that persuaded the court that the handler was not automatically entitled to qualified immunity. A recent Eight Circuit case quoted Nicely as saying that an Iowa state trooper was not a well-trained detector dog handler and his dog was not a well-trained detector dog. U.S. v. Winters, 600 F.3d 963 (8th Cir. 2010). Nicely’s testimony has not been restricted to narcotics detection dogs. In a 1998 Texas case, he testified that an accelerant detection dog’s handler was not training his dogs in such a way as to produce reliable results. Another witness argued that the dog may have detected mineral spirits, not gasoline. Fitts v. State, 982 S.W.2d 175 (Tex.App. – Houston 1998).
Courts have not always been impressed by Nicely, however. See U.S. v. Prokupek, 2009 WL 2634446 (D.Neb. 2009) (“The Court does not find the Defendants' expert, Steven Douglas Nicely, credible. His relevant experience is lacking. The other expert testimony clearly established Rocky's certification and reliability using accepted familiar standards. Rocky positively alerted and indicated to the presence of drugs in the car, and Prokupek clearly appeared under the influence.”). Even more critical was U.S. v. Olivares-Rodriquez, 2010 WL 1137498 (N.D. Iowa 2010), a case where the handler said the dog gave an aggressive alert outside a vehicle that turned out to contain cocaine. The dog jumped up against the rear bumper, gave a scratch, then repeated this action twice more. Nicely argued that the handler, by tapping the vehicle, and saying “Drugs, check!” was cueing the dog. The prosecution’s expert argued that the handler was just indicating where the dog should sniff. The court agreed with this expert, and leveled a jab directly at Nicely:
“The court further finds that although Nicely appears to have considerable experience in the area of dog training, his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous.”
Sentences like these will ricochet among litigators looking for experts in cases with canine aspects, and the district court’s assessment could reduce Nicely's value to the defense bar. I advise experts who testify a lot, and particularly who expect an income from testifying, be careful what cases you take, and don’t always work for the same side.
For more on how a dog's history can be brought into a probable cause hearing, see the decision of the South Dakota Supreme Court in State v. Nguyen, 726 N.W.2d 871 (Sup.Ct. 2007). The court found three divergent views as to how a drug dog's reliability may be shown:
1. Jurisdictions deeming a dog reliable solely by showing dog was trained and certified.
2. Jurisdictions deeming a dog's training and certification prima facie evidence the dog is reliable, shifting the burden to the defense to challenge the presumption.
3. Jurisdictions that require or allow a dog's field activity reports, along with evidence the dog is trained and certified, to be considered in determining reliability.
The court also noted that a number of appellate courts have found the decision ultimately rests with the trial court. See also the Ohio appellate decision, also involving Nguyen, State v. Nguyen, 157 Ohio App.3d 482, 811 N.E.2d 1180 (2004).
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