War Dogs May Have Begun as Guard Dogs of Shepherds and Flocks

Molossian dogs were thought by the ancients to come from the region of Epirus, north of the great Greek city states, an area presently divided between Greece and Albania. Greek mythology explained the Molossian, but also other ancient breeds, as a descendant of Laelaps, a dog given to Europa by Zeus.

Reliefs from Ninevah show similar dogs, which the website of the British Museum describes as mastiffs. Otto Keller thought these dogs descended from large dogs found in Tibet, and believed they lost their shaggy hair when they descended to the plains of Mesopotamia. Laufer's objections to Tibet as a source of Molossians, and his suggestion that Turkish tribes may have first used the dogs, deserve more attention.  The drawing of the Tibetan mastiff here was included in Hamilton Smith's Dogs, published in 1840.

The Molossians of Greece may not have been directly related to those of the Near East, and even in Europe the dogs called Molossians may have originated in several areas. Molossians may have been taken to England by Roman soldiers, and after being left to their own resources when the legions abandoned the island, bred with local dogs and evolved into the English mastiff, known in medieval Latin as the English war dog (Canis bellicosus Anglicus)

Were Molossians bred for war? D.B. Hull and J.K Anderson both suggest that they were guard dogs for flocks at first. Such dogs are to be distinguished from herding dogs, and are now represented by a number of breeds including the Hungarian Komondor. The isolation of the mountainous areas of Epirus, or of other regions, with the need to develop a dog that could provide protection against wolves and other large predators, could explain how this type of dog separated so substantially from other types of dogs. Selective breeding would have been difficult in urban areas where armies were assembled for campaigns and the need for war dogs would have only been intermittent, making long-term planning unlikely. Another argument, however, may be that, at least in the Near East, dogs like Molossians were bred for royal hunts against large and dangerous game, such as lions. Positing such a breeding program, however, seems to require an early and sophisticated understanding of the plasticity of dog phenotypes, for which there is no evidence. The ancients tended to explain unique breeds as crosses with other animals. Aristotle, for instance, thought the Laconian dog resulted from crossing a dog with a fox (έξ άλώπεκος καί κυνος οί Λακωνικοί), the Indian dog perhaps from crossing a tiger with a bitch. Aristotle correctly recognized that dogs could breed with wolves, something which explained certain animals at Cyrene (Saluqis?). History of Animals, 8.28.

Molossians were mentioned by a number of ancient authors (Grattius, Oppian, Nemesianus, Pollux) and are represented in funerary monuments from the Near East across the northern Mediterranean. Aristophanes alludes to Molossians being used to guard the women’s quarters of a household (Thesmophoriazusae, 416: “kept to frighten off the adulterers.” Translation of Eugene O’Neill, Jr.).

The picture above taken by a photographer of the German Archaeological Institute at the Kerameikos Cemetery in Athens and labeled a Molossian by D.B. Hull, dates from the fourth century BC. The dog appears leonine, with a conspicuous mane and a tassel at the tip of the tail. The artist may have been reflecting the belief of the ancients that dogs could be crossed with lions. The sphinx-like posture may also reflect this belief. The Jennings Dog in the British Museum, generally thought to be a Molossian, also has a mane. A statue at the Vatican Museum may indicate a tassel at the tip of the tail as well. It may not be irrelevant that both Aeschylus and Sophocles referred to the monstrous Sphinx as a dog (κυων) (Lilja 1973, 58-9).

A vase in the Boston Museum by the Dwarf Painter (76.45), dated about 440 BC, gives a perspective of the size of a Molossian, placing the animal beside a dwarf and behind a man of normal height.

Sources: D.B. Hull, Hounds and Hunting in Ancient Greece (U. Chicago Press 1964); J.K. Anderson, Hunting in the Ancient World (U. Calif. Press 1985); A.A. Philllips and M.M. Willcock, Xenophon and Arrian on Hunting (Arris & Phillips Ltd. 1999); O. Keller, Die Antike Tiewelt (Leipzig 1909); E. Mayr, Animal Species and Evolution (Harvard U. Press 1963) (reproductive isolation in speciation); J.M.C. Toynbee, Animals in Roman Life and Art (Cornell U. Press 1973) (suggesting two types of Molossians came from Epirus, one for hunting and one for guarding sheep). S. Lilja (1976). Dogs in Greek Poetry. Commentationes Humanarum Litterarum, Societas Scientiarum Fennica, Helsinki.  See also D. Hancock, “The Substantial Dogs of Switzerland,” Dogs in Canada (March 17, 2011);Laufer, B. (1909). Chinese Pottery of the Han Dynasty. East Asiatic Committee of the American Museum of Natural History, New York (see particularly p. 258, n. 2).

Additional Note. The massive study of Persian art edited by Arthur Upham Pope over 20 years, A Survey of Persian Art from Prehistoric Times to the Present (Manafzadeh Group, Teheran 1938-1958), contains an impression of a seal from before 3,000 BC, showing a boar hunt with dogs described as mastiffs (Figure 70c, reproduced here). The author of the chapter, Phyllis Ackerman, notes that earlier representations of hunts (mostly on pottery) showed lean and swift dogs, similar in appearance to greyhounds. She sees this as a shift in the preferred hunting dog, but it may also reflect the fact that earlier hunts usually involved deer-like animals, for which stouter dogs would have been less useful. This, of course, raises the question of whether Molossians, even if they began as sheep dogs, did not move into hunting even earlier than they moved into war. Combat with a large boar inevitably is a rather war-like business.

Thanks to Richard Hawkins of Fern Hill Scottish Deerhounds for recommending many useful sources on dogs in the ancient world. Thanks to Mark Stern for lending me his copy of Pope's great work.

Scented to 9 MM Handgun, Dog Finds Suspect in Police Station

Ruben Wardlaw, a member of the Pasadena Denver Lane Bloods, was outside an apartment building in Pasedena on July 13, 2007, when a white Chevy Impala passed by, turned around, and someone inside opened fire. Wardlaw was not injured, though bullets hit the pole behind which he took cover and some tore his clothing. Police arrived and took Wardlaw’s statement. Shell casings were found at the crime scene. Wardlaw was describing the shooter, the only person in the car, when the Impala returned and the officer saw the driver. The car was pursued by police onto the 210 East freeway where it did over 100 miles an hour. James Rogers Smith was arrested walking away from the car after parking it. He had car keys on him and a shell casing was found on the floor in front of the driver’s seat. Smith was a member of the Altadena Block Crips, a rival gang to the one Wardlaw belonged to.

A trucker was asleep on the side of the 210 East when he heard something hit his truck and police went by with their sirens on. The trucker found a gun, gun clip, and spring, and a bullet, which he gave to police. The police found a spent casing in the gun’s ejector port.

Ted Hamm, a civilian handler for the LA County Sheriff’s Department, took his dog, Bojangles, a Bluetick Coonhound, to the police station where Smith was being held. Using a scent transfer unit, Hamm transferred scent from the 9 mm handgun recovered on the freeway. (A footnote in the appellate decision notes that the record did not clearly state this was the gun from which scent was taken, but says it is “a reasonable inference.”) After smelling the pad, Bojangles went to the room where Smith was being held in the station and alerted to Smith.

The trial court admitted the identification evidence. Smith had contended the canine evidence failed to meet the requirements for admission under People v. Kelly, 17 Cal.3d 24 (1976) and Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The prosecutor cited People v. Salcido, No. GA052057 (Super.Ct. 2005), for the admission of dog scent identifications and for some reason the defense agreed to stipulate to the factual findings in Salcido. Salcido had held that an STU was generally accepted as reliable in the relevant scientific community, that there was an established protocol for cleaning and using an STU, that human scent was unique and can remain on objects for years, that pulling scent from an object by means of an STU does not degrade scent, and that dogs can be trained to discriminate between human scents. Hamm had also testified in Salcido, but used a dog named Knight in that case. The Salcido court determined that the certification procedures for Hamm and Knight met minimum standards.

The trial court in the present case adopted the findings in Salcido and found that the requirements of Kelly/Frye had been met, though the court required that a foundation be established for Bojangles. Defense counsel renewed his objection, describing the case as a scent identification case. The Pasadena Police Department had, after all, asked Hamm "to do a suspect identification, meaning matching scent from an item to a suspect." The prosecution argued the case was a trailing case, but the trial court said it was both.

Hamm testified as to the training of Bojangles and as to his record in criminal investigations. He testified that the dog had worked about 300 criminal investigations and had been proven correct in 30 cases, and never been proven wrong. The appellate court did not refer to any records being produced in the trial court, or mention whether defense counsel asked to review them.

In describing Hamm’s procedure in greater detail, the appellate court stated that Hamm had asked that the suspect be taken to a part of the police station where he had not been before. After preparing the scent pad, Hamm took Bojangles to the third floor, took out the scent pad and put it before Bojangles, giving the command, “Find ‘em.” Bojangles walked through the building and found Smith within a minute and a half. It is not stated who was with Smith in the room where he was found, if anyone, so it seems that there was no effort to produce a human scent lineup.

The appellate court discussed California’s acceptance of tracking and trailing evidence, as well as its acceptance of scent identification lineups, including transferring scent by means of STUs. In People v. Malgren, 139 Cal.App.3d 234 (1983), a California appellate court had said that dog tracking need not be subjected to a Kelly/Frye hearing.

The Smith court also stated that a prior California case, People v. Mitchell, 110 Cal.App.4th 772, 2 Cal.Rptr.3d 49 (2003), that Kelly/Frye did not apply to scent identification evidence. This was true of the trial court, but the appellate court in Mitchell was somewhat ambivalent. In one sentence it had concluded that “Kelly should have been applied to this evidence,” referring to the scent identification evidence. Then the appellate court had seemed to pull back from this conclusion, stating:

“We further conclude that, even if Kelly were not deemed to apply to scent identification evidence in general, a greater foundation than the one provided here is needed for its admission. In tracking and trailing, there is a history of canine performance which provides the basis for the fifth Malgren element--that this type of evidence will be admitted if it is shown that the dog was put on a fresh trail. For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person's odor, beyond the mere experiences of one trainer and one dog.”

Though finding the evidence was admitted in error, the Mitchell court had found this error harmless because it was “not reasonably probable Mitchell would have been acquitted absent admission of scent identification lineup evidence.”

The Smith court distinguished Mitchell because the trial court in Smith had held a Kelly hearing, “albeit a somewhat unusual one that relied on the extensive findings made in another case, Salcido.” This raises the issue of how much judicial notice can be taken of the findings of prior courts in scent identification cases. Salcido had involved testimony of some of the biggest names in canine forensics, including Kenneth Furton, Brian Eckenrode, Rex Stockham, and Lawrence Myers. The appellate court in Smith determined that it did not need to review the adequacy of the lower court’s hearing, however, because, as in Mitchell, it found any insufficiency harmless because “it is not reasonably probably Smith would have been acquitted absent admission of the scent identification evidence.”

In speaking at the Tufts Veterinary School in Massachusetts two weeks ago, many of the handlers in the audience confirmed something I've been hearing for a while, namely that defense attorneys are getting more aggressive in their cross-examination of handlers. It would seem that evidence of the sort admitted here is likely to be more effectively challenged in the future. This was a type of station identification. See Hinton v. State, 175 Miss. 308, 166 So. 762 (1936), for a description of an identification of this type. There were no foils, and no lineup is described, certainly nothing at the level described by Schoon or Jezierski. The trail was not from the scene of the crime but apparently from one part of a station to another. Or was this closer to a casting where the dog was looking for a trail after having been scented? There was no discussion of the path Smith took in reaching the room where the dog found him. It is not explained why the dog was taken to the third floor before the trailing or search began, though Hamm had asked that the suspect be taken to a portion of the building where he had not previously been. Was the dog put on the trail at a point where the suspect was certain or likely to have been, generally a foundational requirement for tracking? Was Smith clearly identifiable as a suspect in the station? He was not in uniform and may well have been easily distinguishable from most everyone else near him. Cueing might be possible in such circumstances. What sort of identifications had the dog done in addition to its training activities? Why was there no expert retained to challenge the police dog handler? None of these issues, or many others in canine identification forensics, were apparently raised by defense counsel or anyone else, but probably should have been.

Were other kinds of scent matches considered? For instance, shell casings were found at the crime scene. A scent match procedure could have been used to match scent on the casings to the scent of the car seat, or to Smith’s clothing, and could have gone to the issue of whether Smith himself loaded the handgun. (Fingerprints were not recovered from the gun.) Other ballistics (toolmarks) had connected the shell casing found in Smith’s car to casings found at the crime scene. It must be acknowledged that there were was a great deal of evidence, some provided by Smith himself, and it appears highly unlikely that a jury would have reached a different verdict even without the canine evidence.

My concern is that if scent identification work continues to avoid reversal only as harmless error, it may eventually be seen as superfluous and not even performed. Performing it well will become even more infrequent. Part of the reason the scent evidence here was not solid may have been a lack of funding (though procedures were not forensically ideal in any case). Police authorities, like most government agencies, are always looking for places to cut expenses. Labor costs for dog handlers have already taken a considerable toll, and frequent failures of judicial admissibility are bound to have consequences as well.

People v. Smith, 2011 WL 1350762 (Ct. App. 2011). Station identifications will be discussed in detail in Police and Military Dogs. Thanks to Gene Papet for comments and corrections.

Close Windows, Crank Up the Air: Driver Can Be Asked to Prep Car for Sniff

At an Illinois traffic stop, a police officer told the driver to roll up her truck’s windows and turn the ventilation system’s blowers on high before a second officer conducted a canine sniff of the exterior of the truck. The dog alerted on both doors of the truck and a subsequent search found methamphetamine. The circuit court of Adams County granted a motion to suppress, but the appellate court reversed and the Supreme Court of Illinois affirmed. Thus, the officer’s actions in ordering the driver to close the windows and turn up the ventilation system’s blowers was held, in an opinion written by Justice Karmeier, not to constitute an unreasonable search under the Fourth Amendment.

The police had received information that the defendant was a methamphetamine user and an officer and staked out her apartment. When she was seen leaving the apartment with a man carrying white trash bags that were put in the back of the truck, the officer, Tyler, radioed a canine officer that he intended to make a traffic stop and wanted a dog sniff conducted during the stop. Officer Tyler made the stop in a gas station, explaining to the driver, Cheryl Bartelt, that she had parked too long on the sidewalk in front of her apartment. While he was conducting a computer check on Bartelt’s driver’s license and insurance information, Officer Kent arrived with his narcotics detection dog, Max.

Officer Kent followed the protocols of the Illinois State Police, which include a set-up procedure in which the driver is told to turn off the engine, turn the key on auxiliary, turn the blowers on high, roll up the windows and close the doors. The court then described the sniff procedure:

“Officer Kent begins a dog sniff by walking the dog parallel to the vehicle, beginning at the front and proceeding counterclockwise for two passes. The dog signals an alert by turning perpendicular to the vehicle. In addition, the dog's breathing will change, and his sniffing will intensify or become more rapid. Finally, the dog will put a paw out, look at the handler, and start barking. Probable cause is obtained through a dog's positive alert.”

The alert occurred before Officer Tyler even began writing the ticket. Tyler told the defendant and her passenger to exit the truck and obtained consent to search their persons, but nothing was found. A search of the truck revealed a bag containing a digital scale with white powder residue, several burnt pieces of tin foil, and a pen casing with a burnt end and powder inside. Bartelt was arrested.

In a Tenth Circuit case, U.S. v. Ladeaux, a Wyoming Highway Patrolman had stopped a car because the driver was not wearing a seat belt, had followed another car going below the speed limit too close, and had changed lanes without signaling. The driver’s nervousness gave the Patrolman a hunch that something might be in the vehicle and he called for canine backup. The canine handler asked that the windows be rolled up and the vents turned on, and during the sniff the dog alerted to the trunk of the vehicle. The subsequent search revealed 15 pounds of marijuana. Federal drug charges were filed and a motion to suppress was denied by the district court. The Tenth Circuit discussed the Constitutional issues but remanded for consideration of whether the procedure involving the windows and vents violated the Fourth Amendment. On remand, the district court granted Ladeaux’s motion to withdraw his motion to suppress so no further law was developed on the issue.

Justice Karmeier described Bartelt as a case of first impression because the Tenth Circuit, though faced with the same issue, had remanded in Ladeaux. The circuit court in Bartelt had granted the motion to suppress because the procedure had, in effect, allowed the officers to manipulate the air within the truck that would not otherwise have been subject to Max’s plain smell (though of course the dog may still have alerted). The appellate court had reversed because the dog had remained outside the truck and the defendant had no legitimate expectation of privacy in the potentially incriminating odors emanating from a lawfully stopped vehicle.

The Fourth Amendment prohibits unreasonable searches and seizures, but the court said that Bartelt had based her appeal on the procedure being an unreasonable search, not a seizure (though the issue of a seizure may have been raised in one sentence of the defendant’s appeal). The court found Illinois v. Caballes controlling because “the dog sniff in the present case was not a search subject to the fourth amendment because it did not ‘compromise any legitimate interest in privacy.’” (The internal quote was taken by Caballes from U.S. v. Jacobsen.)

The Illinois Supreme Court found an analogy in the luggage prepping procedure approved in a Fifth Circuit case, U.S. v. Viera, in which DEA agents pressed suitcases before a dog sniff to push some of the air out of them for the dog to smell. The dissent noted that luggage manipulation was not approved by the Supreme Court in Bond v. U.S. Bond, however, was not a canine case and the manipulation was performed to feel what was inside, which included a brick-like object. But see U.S. v. Gwinn (manipulation and removal of bag for dog sniff was impermissible search), not cited in Bartelt.

Three justices dissented, arguing that Fourth Amendment seizure issues were properly raised, though not fully argued, and that the analysis in Ladeaux involved seizure principles. The dissent argued:

“I agree with Ladeaux. Under the facts presented in both Ladeaux and in this appeal, the police went further than the officers in Caballes: they ordered defendant to assist them in facilitating the canine sniff by demanding that she turn the vehicle to auxiliary power, close the windows and place the blowers on high to force the air from the inside of her truck to the outside of the vehicle. There also is no question that the officers demanded defendant's compliance in the midst of what was an already coercive environment, wherein defendant was confronted by two officers and a narcotics canine, and was seated in a vehicle which was parked in front of two police squad cars arranged in a “T” formation. Because the officers' actions subsequent to the initial stop unquestionably “communicated to a reasonable person that [she] was not free to decline the officers' requests or otherwise terminate the encounter”…, I conclude that the officer's order to defendant to comply with the set-up procedure constituted an additional seizure. Accordingly, the reasonableness of this additional seizure must be assessed.”

It is troubling that a driver could be asked to take actions to aid in a sniff, and it appears that requiring such participation would be better analyzed as a seizure rather than as part of a search. Not doing so, however, may say more about defense counsel’s briefing of the matter than how the law should ultimately read. Unlike Jardines, which I'll be discussing soon, I don't think this one is ready for the U.S. Supreme Court.

Sources: Illinois v. Bartelt, 2011 WL 1049788 (Ill. 2011), aff’g 384 Ill.App.3d 1028, 323 Ill.Dec. 715, 894 N.E.2d 482 (Ct. App. 2008); U.S. v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); U.S. v. Viera, 644 F.2d 509 (5th Cir. 1981); U.S. v. Gwinn, 191 F.3d 874 (8th Cir. 2000); regarding manipulation of bags, see also U.S. v. Nicholson, 144 F.3d 632 (10th Cir. 1998); Bond v. U.S., 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000); Jardines v. Florida, Docket No. SC08-2101 (April 14, 2011).

It has been argued that air released from a car’s ventilation system might carry enough scent of the driver out of a car as to leave a trail that a trailing dog could follow. Buchanek v. City of Victoria, 2009 WL 500564 (S.D.Tex. 2009).

Canine Venereal Cancer Cells Repair Themselves by Taking DNA from Host Animal

Dogs transmit canine transmissible venereal tumor (CTVT) when having sex. The infectious agent is the cancer cell itself. This is unusual. Early research had expected to find a virus or some other agent that induced the cancer in dogs, but this turned out not to be the case.

Analysis of the DNA of the disease indicates that it began from 6,000 to 10,000 years ago. Scientists from the Department of Life Sciences of the Imperial College London, and one originally from that school but now at the Cold Spring Harbor Laboratory on Long Island, sequenced mitochondrial sections of CTVT tumors and found the level of variation (nucleotide polymorphism) to be high, which they believe may be due to the occasional transfer of mitochondria from host dogs into CTVT, that in other words “CTVT lineages periodically acquire the mitochondria of their hosts.” The advantage of this exchange to the tumor is that its own mitochondria will in time accumulate deleterious mutations, “with transfer events rescuing CVTV mitochondrial function.” A result of this exchange is that the nuclear DNA of the tumor is different from the mitochondrial DNA, with the latter showing sequences taken from dog mitochondrial DNA.

This is the first time this sort of mitochondrial transfer between a cancer and a host has been demonstrated in nature (as opposed to laboratory studies). The researchers speculate, however, that the use of a host’s mitochondrial DNA may occur in other cancers, concluding their paper with the statement:

“Because sporadic cancers often show mitochondrial mutations and have unusual metabolism of aerobic glycolysis that may be due to accumulated defects in oxidative phosphorylation, mitochondrial transfer may occur in many cancers as they seek to optimize, or at least repair, their metabolic machinery.”

CTVT is also found in wolves and coyotes, and a 2009 paper by some members of the same team and others argued that the origin of the cancer could be found in either dogs and wolves, and may have arisen when dogs were first domesticated. CTVT can be transplanted into foxes and jackals. Although the tumor has existed for thousands of years, the common ancestor of the tumors that have been sampled is only a few hundred years old.

A study from 2006 reached somewhat different conclusions, arguing that “CTVT most likely originated from a wolf or an East Asian breed of dog between 200 and 2500 years ago.” Although East Asia would be consistent with Dr. Savolainen’s location of the original domestication event, the timeframe from the 2006 study would not be consistent. The paper had noted:

“Since CTVT is an asexually reproducing cell that cannot 'cleanse' its genome of accumulated deleterious mutations through recombination, it may be expected that, over evolutionary time, its genome may suffer from slow degradation through the process of Muller’s ratchet…. However, there is no evidence that Muller’s ratchet has yet exerted an effect.”

The mitochondrial research seems to indicate a mechanism by which the cancer avoids this degradation.

Professor David Cohen of Ben Gurion University, writing in 1985, speculated about why the disease exists in dogs:

“Such a tumor developed in the dog and not in other species, probably because of some unusual characteristics of canine coitus. Following coitus in the dog, injuries of the vaginal and penile mucosa occur, thus providing the bed for tumor transplantation.”

A transmissible cancer has also been found in Tasmanian Devils, a carnivorous marsupial, which is spreading quickly and endangering the species. Devil facial tumor disease (DFTD) is highly disfiguring and is transmitted between Devils by biting. The disease was first observed in 1995 in northeastern Tasmania and may lead to extinction within 25 to 35 years. Nineteen researchers, many from Australia, including the lead author of the CTVT study, studied the DNA, and concluded that the tumor is a peripheral nerve sheath tumor that may be similar in transmission to CTVT. The picture shows a Tasmanian Devil.

Dr. Rebbeck, lead author of the 2011 study, according to a podcast interview released by Science, is now working on a study to establish the full genome of the mitochondrial DNA of CTVT to find any more relationships between dog and disease mitochondria. I hope that the geographic origin of the disease continues to be investigated, given that Dr. Rebbeck's research puts this not long after domestication. Since a wolf pack will generally have only one mating pair, domestication, with its resultant multiple partner pattern, was probably necessary for such a disease to spread.

Sources: Clare A. Rebbeck, Armand M. Leroi, and Austin Bert (2011). Mitochondrial Capture by a Transmissible Cancer. Science, 331, 303 (January 21, 2011); Elizabeth P. Murchison, Cesar Tovar, Arthur Hsu, Hannah S. Bender, Pouya Kheradpour, Clare A. Rebbeck, et al. (2010), The Tasmanian Devil Transcriptome Reveals Schwann Cell Origins of a Clonally Transmissible Cancer. Science, 327, 84-7 (January 1, 2010); Rebbeck, C.A., Thomas, R., Breen, M., Leroi, A.M., and Burt, A. (2009). Origins and Evolution of a Transmissible Cancer. Evolution, 63(9), 2340-9 (April 30, 2009); Claudio Murgia, Jonathan K. Pritchard, Su Yeon Kim, Ariberto Fassali, and Robin A. Weiss (2006). Clonal Origin and Evolution of a Transmissible Cancer. Cell 126(3), 477-487 (August 11, 2006); Cohen, D. (1985). The Canine Transmissible Venereal Tumor: A Unique Result of Tumor Progression. Advances in Cancer Research, 43, 75-112.

For forensic uses of canine mitochondrial DNA, see Cordula Eichmann and Walther Parson (2007). Molecular Characterization of the Canine Mitochondrial DNA Control Region for Forensic Applications. International Journal of Legal Medicine, 121(5), 411-416.

Picture courtesy of Wickipedia and “noodlesnacks.”

Montana Proposes Hunting Wolves to Protect Elk Herd

There is a great deal of legal activity regarding the wolves of the Northwest and, as of this writing, the biggest ball lies in the court of federal district court judge Donald Molloy. A footnote to the future of wolves in Montana concerns a population of only 24 wolves in a 707 square miles of wilderness area in and around the Bitterroot National Forest near the Idaho border.

On March 29, the Fish and Wildlife Service of the Department of the Interior published a “notice of availability” in the Federal Register (76 Fed. Reg. 17439; see also 76 Fed. Reg. 7875, February 11, 2011, regarding the Lolo Elk Management Zone). What was made available was a draft environmental assessment of a proposal by Montana’s Department of Fish, Wildlife, and Parks to "lethally take" wolves in the West Fork Elk Management Unit (EMU) in western Montana in response to impacts on elk populations.

Montana recommends reducing the wolf population of about 24 animals in the West Fork EMU to a minimum of 12 wolves in two or three packs for a period of five years. Montana’s proposal could be denied, but the wolves in the area could still be killed by the U.S. Fish and Wildlife Service, or its designated agents, though only when livestock, stock animals, or dogs are being killed by the wolves. The West Fork EMU is one of 35 elk management units in Montana.

The U.S. Fish and Wildlife Service is seeking written comments on Montana’s proposal, but only if they are received by April 12. Electronic comments must be submitted by 11:59 p.m. EST on that date.

Four subspecies of gray wolves (Canis lupus) were designated as endangered under the Endangered Species Act of 1973 (16 U.S.C. Chapter 35; 39 Fed. Reg. 1171 (January 4, 1974)). In 1978, the listing was changed from a subspecies listing to a species-level listing in the contiguous U.S. (43 Fed. Reg. 9607, March 9, 1978). In 1994, the Fish and Wildlife Service designated portions of Idaho, Montana, and Wyoming as two nonessential experimental population areas. Experimental populations are generally treated as threatened species, allowing for certain protections under the Endangered Species Act (16 U.S.C. 1539(j)); 50 CFR 17.40(n)(1)). In 1995 and 1996, the Service reintroduced wolves into the northern Rocky Mountains as a nonessential experimental population, an effort described in a comprehensive environmental impact statement.

The reintroduced wolves, which had been captured in Alberta and British Columbia, “achieved biological recovery objectives in 2002 in Idaho, Montana, and Wyoming," according to the Service. In 2005, State and Tribal governments were given post-delisting management plans a role in gray wolf management, including the capacity to kill wolves, including the ability to do so if the wolves were having an “unacceptable impact” on wild ungulate populations (deer, elk, moose, bighorn sheep, mountain goats, antelope, and bison). Any proposed killing must be “science based” and must “not contribute to reducing the wolf population in the State below 20 breeding pairs and 200 wolves, and will not impede wolf recovery.”

If Montana’s proposal were not approved, as already mentioned, killing of wolves would still be permitted when it can be shown that they are killing livestock, stock animals, or dogs (50 CFR 17.84; 73 Fed. Reg. 4720, January 28, 2008). If Montana’s proposal were approved, the wolves would be hunted or trapped, not poisoned.

I know the country, or rather the country a hundred miles to the east. In the summer of 1965, I worked on a cattle ranch near Three Forks, a small town between Bozeman and Butte, building haystacks. The ranch had a summer range to the north near a place called Deer Park, and would every spring have a small cattle drive, a hundred head or so, up into the mountains, and every late summer a small drive back to the lower country. The rancher and his men took rifles to the summer range for deer and moose, and supposedly for wolves, though none had been seen in the area for more than a decade. They hunted with single-shot rifles and only the rancher had a scope. I hate to think what weapons technologies will be used on the wolves now.

Hunting wolves has never been about eating them (in most cultures), and has always been about what they eat. Most often we hear about them killing livestock, but even long ago there was anger about their eating game, game we don’t want to share. The plate from the book by Gaston Phoebus, printed in the book he wrote on hunting over 600 years ago, shows wolves (les loups) carrying away and then eating sheep, goats, and a small wild boar. The wolves that are not eating are waiting hungrily for their chance at the flesh. Even the mother wolf at the center seems more interested in her next meal than in her cubs. In an actual pack, part of the kill would have been brought to the nursing female (not that Phoebus could have known that).

Grisly images of wolves have always justified their destruction. We hunt them because they are competitors. The bounty of the earth is for us, not for them. Never mind that we are the ones doing so much to destroy that bounty.

Addendum. On Saturday, April 9, 2011, Judge Donald Molloy declined to delist wolves. Unfortunately, Representative Mike Simpson (R-Id) managed to get a rider in the budget bill which allows Idaho and Montana to resume state management of wolf populations, including hunting seasons. It can only be hoped that state authorities will make an effort to keep wolves from becoming extinct (though it must be doubted whether any official that is too protective of wolves would be able to keep his job very long).

For a description of wolf packs in the northeast, see the U.S. Fish and Wildlife Service, Northern Rocky Mountain Recovery Program Update (2010).

Texas Court Puts Another Nail in the Scent Lineup Coffin, but Should the Concept Be Buried Entirely?

A recent appellate decision continues the trend of Texas courts to reject scent lineup evidence, as to which those courts were once the most welcoming in the country. The case, Texas v. Smith, 2011 WL 480600 (Ct. App. 2011), adds some nuance to prior decisions regarding scent lineups, justifying an analysis.

Officers collected scent samples from inside the car in which a murder victim was found in 2003. Two years later, a dog handler, Deputy Keith Pikett, conducted a scent lineup with six individuals, all black males, standing 25 to 30 feet apart in a wagon wheel formation. Three bloodhounds were scented to samples that had been recovered from the vehicle. The dogs alerted to two individuals in the lineup depending on what they were scented to, but all alerted to Jason Smith, the defendant, after being scented on a Wessen .357 Magnum recovered during the investigation. Another scent lineup (or lineups) were performed regarding another defendant besides Smith, but produced no identifications.

Smith moved for a hearing on the admissibility of the evidence under the state’s case law on scientific evidence. The trial court initially approved admission of the scent lineup, but changed its mind on a subsequent motion. The court made 16 findings of fact:

1. Possible cross-contamination of the scents in the lineup in question, as admitted by the handler himself to explain one misidentification in one of the lineups.
2. Lack of any “blind” scent lineup without the defendant (though Pikett did conduct a scent lineup without the defendant but with a co-defendant).
3. Failure of the handler to keep complete records of scent lineups his dogs have performed.
4. Incomplete training records of the dogs.
5. Lack of accuracy or error rates because of the failure to keep records.
6. Handler’s records, such as they were, were not subject to peer review.
7. Failure of the handler to record the dispositions of cases in which his dogs participated.
8. Failure of the handler to perform validation testing on his dogs during scent lineups.
9. Handler testified that no one reviewed his work.
10. The bloodhounds were not certified and, in any case, the court noted the lack of any recognized industry standard on bloodhounds and no certification program for bloodhounds.
11. While the idea that bloodhounds can track and identify scents was accepted as valid, there is no clearly accepted method for conducting scent lineups.
12. No literature offered by the prosecution in support of the manner in which the scent lineups were conducted.
13. No independent evidence presented by the prosecution regarding the potential rate of error in the lineups.
14. No evidence presented by the prosecution regarding the availability of other experts to test and evaluate the manner in which the scent lineup in question was conducted.
15. The defense presented evidence that the dogs in question could have been intentionally or unintentionally influenced by the dog handler because the manner in which the scent lineup in question was conducted (i.e., potential for cueing).
16. No showing that the scent lineup results could be duplicated by others following the same methods.

The use of the term “blind” in finding 2 is confusing. Blindness in a scent lineup usually refers to procedures in which the handler and dog are ignorant of which person in the lineup is the suspect, or which station contains the suspect’s scent. Here, blindness appears not to refer to the knowledge of the handler and others present during a trial about the position of the suspect, but rather to a trial in which no suspect would be present. A trial in which no alert will be correct is usually called a blank, a zero trial, a negative trial, or a non-match run (see SWGDOG SC 9: Human Scent Dogs: Scent Identification Lineups §2.3.2.5.3).

The trial judge concluded that Pikett’s methods in the case had not been shown to be sufficiently reliable to be admitted and that he could not testify as an expert. The prosecution appealed.

The Texas Court of Criminal Appeals reviewed the test enunciated in Nenno v. Texas, 970 S.W.2d 549 (Tex.Crim.App. 1998), which applies where training and experience, rather than scientific principles, are determinative of the reliability of the evidence. This test requires a showing that (1) the field of expertise is a legitimate one, (2) the subject matter of the expert, in his testimony, is within the scope of the field, and (3) the expert's testimony properly relies upon or utilizes the principles involved in the field. The test had been applied to admit scent lineup evidence in Winston v. Texas, 78 S.W.3d 522 (Ct. App. 2002). More recently. the Texas Court of Criminal Appeals in Winfrey v. Texas, 323 S.W.3d 875 (Tex.Crim.App. 2010) held that a scent lineup could not support a conviction, but Winfrey did not address admissibility under Kelly and Nenno. Kelly v. Texas, 824 S.W.2d 568 (Tex.Crim.App. 1992) is the Texas case describing the admission of evidence from the hard sciences.

In reviewing the case against Smith, the Court of Appeals agreed with the trial court’s determination that Deputy Pikett’s records were incomplete:

"Deputy Pikett's testimony reveals that though he maintains some records for training and practice lineups, these records are incomplete as are his records verifying the outcome of cases in which his dogs have identified suspects and the records of the dogs' success rates. Given the evidence before the trial court at the September 12, 2007 hearing, the trial judge reasonably could have concluded that the State had failed to carry its burden of showing that the proffered expert testimony was reliable."

The appellate court then distinguished Winston, which also involved Pikett, but where Pikett’s testimony was admitted, by noting that in that case, unlike Smith, Pikett had referred to his procedures being consistent with the manual of the National Police Bloodhound Association. In Winston, Pikett had produced success rates, making the case “factually distinguishable” from Smith. Perhaps this is a way of saying that the prosecution was better prepared in Winston than it was here, or perhaps the Smith court was saying that the Winston court had not looked at the evidence as carefully. Alternatively, Pikett was testifying in a more friendly environment in the earlier case and did a better job of covering over the deficiencies in his recordkeeping.

The appellate court also noted that in Smith Pikett used multiple dogs and ran multiple tests, “contrary to expert recommendations and accepted methods.” The court notes that “multiple dogs can create an unwanted pattern for the dogs or trainer.” This is correct insofar as it goes. By leaving a trail for other dogs to follow, or saliva on an item, dogs may be following each other rather than making independent findings. (See Jezierski T, Walczak M, Gorecka A (2008). Information-seeking behaviour of sniffer dogs during match-to-sample training in the scent lineup, Polish Psych. Bull. 39(2), 71-80.) Nevertheless, as I have summarized elsewhere, use of multiple dogs can increase accuracy rates for positive identifications (though reducing the number of positive identifications overall since the more dogs used, the less often they will all make the same match). However, procedures involving multiple dogs assume that the testing environment of a scent match lineup is rigorously cleansed between trials. Also, the use of zero trials without the defendant (finding 2) would presume additional trials should have been conducted, so some of the court’s findings may be inconsistent.

The appellate court, like the trial court, referred to blindness, using the term “double blind” in stating that “Deputy Pikett indicated that he keeps the process simple and does not conduct a ‘double blind’ lineup.”

"According to the record, Deputy Pikett testified that he did not run a blind test to validate the accuracy of dogs' original identification of Smith. Deputy Pikett cited his science background to 'keep it simple, stupid, and get out of all that crap,' when others tried to complicate the process."

Given the lack of discussion of scent lineup research, it is unclear what others Pikett thought were complicating the process, or what research or protocols he thought were crap, but his criticism of double-blinded testing certainly conflicts with SWGDOG and other protocols. See SWGDOG SC 9 Human Scent Dogs: Scent Identification Lineups §2.3.3.6 (“No one present in the room, including the dog and handler shall know the correct outcome of the lineup.”). Again, it is uncertain exactly how either Pikett or the court were defining “blindness.”

The defense presented evidence that Pikett may have “intentionally or unintentially influenced” his dogs, i.e., cued them. Cueing has recently been the subject of a study by three scientists at the University of California at Davis, research which is likely to lead to this issue being referenced more often as a flaw in the use of dogs in a wide range of detection and identification work by police. On the appeal in Smith, the prosecution argued that Pikett “could not have influenced his dogs in their identification of Smith because he did not know in which position Smith stood….” The appellate court rejected this assertion because Pikett had access to Smith’s case file and set up the lineup.

The prosecution made another argument on appeal, saying that the trial court had effectively applied Kelly, not Nenno—i.e., that the trial court had imposed the standards for the admission of evidence derived from the hard sciences. The prosecution said that findings 6 (peer review of records not performed), 9 (lack of review of handler’s work), 12 (no scent lineup literature offered), and 14 (no supportive experts), should not have gone to the admissibility of the evidence, only its weight. It is not clear to me where peer review was expected to come from, or if items 6 and 9 are distinguishable. Perhaps item 6 refers to review of Pikett’s findings in the particular case, while item 9 might involve periodic testing of Pikett to validate his procedures and their reliability. The latter might have been provided by an organization like that National Police Bloodhound Association, but perhaps Pikett had not been attending such gatherings despite his reference to the association in prior cases. The Smith court noted that “hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review” might be appropriate “for testing the reliability of fields of expertise outside of hard science in appropriate cases.” This is an important observation and could have significance for other canine evidence cases.

After going through these and other arguments, the Houston branch of the Texas Court of Appeals affirmed the trial court, stating that “the trial court could have concluded that there was too large of an analytical gap between the data offered and Deputy Pikett’s proffered opinion,” and that a “trial court should not admit expert testimony that is connected to existing data only by the expert’s own assertions.” Therefore, the trial court did not abuse its discretion in excluding the scent lineup evidence.

Regardless of which evidentiary standard was applied by the trial court—the standard applied to hard scientific evidence or a less rigorous standard of the sort often applied to scent lineups, or something in between—the lineups in this case were highly deficient. The possible cross-contamination may not have been the handler’s fault, but no contact should have been permitted. Training and performance records should be complete, and should include, or easily produce, accuracy rates. Dogs and handlers should be tested periodically. The failure of the prosecution to introduce scientific literature may have been due to the fact that the scientific literature by Schoon and more recently by Jezierski and others would not support use of the human scent lineup format apparently preferred by Pikett, and would certainly have indicated that many of his procedures were unsatisfactory from a scientific perspective. Alternatively, the prosecution’s failure may be explained by the frequent tendency of trial lawyers to overlook the significance of and the need to prepare for the introduction of canine evidence.

The pendulum is swinging strongly against the admission of scent lineup evidence. I do not quarrel with the decisions so far since the U.S. scent lineups I know anything about should not have been admitted in the first place. On that, Professor Taslitz is still correct. Nevertheless, I am bothered by the blanket junk science label since this implies that scent lineup procedures can never be refined and controlled enough to provide reliable evidence. As I have argued in the draft paper mentioned above, research on scent identification has begun to produce results comparable to other forensics procedures that are widely admitted in criminal trials.

Thanks to Gene Papet for helpful comments on this note.

Communication Across the Species Divide Helps Find Game, and Food Bowls

When Oliver Wendell Holmes wrote in The Common Law that “even a dog distinguishes between being stumbled over and being kicked,” I believe he was thinking of eye contact between humans and dogs. A few mornings ago I tripped over Chloe because she was in an unusual place for her. She looked up at me to assure herself that my clumsiness was accidental, that everything was all right. Or so I imagine. A scientist would argue that I could not interpret Chloe’s look, but there is something so elemental, even ancient, in our relationship with dogs that we do not hesitate to say that we understand each other.

Gesture research by animal behaviorists has confirmed aspects of this. Dr. Sophia Yin, whose research on barking I cited in Service and Therapy Dogs in American Society, recently posted a blog in which she tested her own dogs in a pointing gesture study. She found that most of the time, in a two-choice test, dogs went to the food bowl she was pointing at. Pointing with a hand extended beyond the body was most successful, and though the dogs did not perform as well as two- and three- year-old children, they did perform much better than chance would dictate (somewhere between 65% and 80%, depending on the obviousness of the gesture).

Communication between dogs and humans is one of the themes running through the plates in the hunting book by Gaston Phoebus (1331-1391). The illustrated edition of Le Livre de Chasse, published around 1405, has wonderful miniatures depicting various stages of the hunt. The first plates show the animals in their communities, without human interference. The young play while others eat and mothers nurse their young. Wild boars, deer, foxes. Only the culture of the wolves is presented unsympathetically, most of them dripping blood as they eat one thing or another. The plates move through the stages of the hunt, from gathering the hounds, making the nets, putting dogs on the trail, the horsemen running ahead to be ready when the dogs drive the prey to them, the capture and kill, and the feast at the end. Every plate is a gem.

The plate reproduced here shows a handler in the lower right (in orange) encouraging a group of dogs to follow the direction of his hand. He expects them to understand this gesture, and and it is easy to imagine him talking to the more attentive members of the pack. Even six hundred years ago we could not help this, probably not even 10,000 years ago. Neither can they.

Additional Note. The quote from Holmes also caught the attention of Harold J. Berman in Faith and Order: The Reconciliation of Law and Religion (Eerdmans, Cambridge, UK, 2000), p. 10. Berman wrote:

"Justice Holmes once wrote that even a dog knows the difference between being stumbled over and being kicked. We would add that even a dog becomes upset if his master rewards him one minute and punishes him the next for the same thing."

While I regard Berman as one of the great thinkers of the twentieth century--too much overlooked in many debates--I believe his observation is not nearly as precise as that of Holmes. Anyone who has taught a basic obedience class knows that many, probably most, masters are inconsistent in doling out rewards and punishments, rarely seeing that they are sending mixed signals to their dogs. The dogs will be confused, and will not know what is expected, but in the end will respond, if at all, in the way that seems most likely to get a reward or avoid a punishment. It is doubtful that they contemplate the whole situation from a point of wondering what is just or unjust. Berman did not see that Holmes was describing an immediate eye contact phenomenon, not a rudimentary concept of justice in the dog's mind. The dog is looking for signals, as dogs have since the beginning of domestication, not attempting to enter a dialogue about rights and wrongs in the domesticated state. I suspect in the end that Holmes' experience with gun dogs had given him a solid sense of how dogs react to our movements.