WikiDogs: Canines in the Leaked U.S. Diplomatic Cables

The U.S. diplomatic cables released by WikiLeaks contain numerous references to “canine” and “police dog,” though not all of these references are about non-human species. A cable from Embassy Harare in 2000 refers to Mugabe’s protean guard as being “loyal in a canine way.” Most cables refer to canine teams that were trained or deployed with the support of the State Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL), and the cables appear to have been sent to advise Washington that the countries where the embassies are located are appreciative of the canine teams and Washington’s support. Some cables provide estimates of the amount of drugs that have been seized, or describe dogs discovering bombs and IEDs.

The picture shows an INL-funded dog at a Ciudad Juarez car bomb site. Not all dogs mentioned are narcotics and explosives detectors. Cadaver dogs are referred to in several cables. Dual-function dogs are mentioned occasionally, though the embassy officials writing the cables were more concerned with the successes of the dogs than their training regimens. The officials were, in other words, providing fodder for summary reports to be written by DC State Department staff showing that money for canine programs is being well spent in the field.

The amount of expertise in embassies regarding specialized canine work is probably not that high in general. The State Department’s Inspector General noted in a 2010 report, Limited-Scope Review of the Bureau of Diplomatic Security's Oversight of Explosives Detection Canine Programs, that Department of State personnel in Iraq and Afghanistan did not have expertise in explosive detection canines and had to rely on the canine contractors themselves on issues such as whether dogs were being effectively trained or testing samples were being stored properly.

Not all cables have a positive tone. Austria has provided training for police from a number of countries including Afghanistan and Kazakhstan, as has Germany. Several officials speaking at a 2009 International Canine Conference in Kazakhstan were critical of a number of the canine programs of many of the countries in central Asia. Tajikistan was criticized for letting dogs die from lack of care. Although Uzbekistan has one of the best programs in the region, a cable from the embassy in Kazakhstan noted that it was doubtful, because of local hostility, that Tajikistan would be willing to let its officers train in Uzbekistan. An Austrian official criticized trainers in central Asia for not using real drugs in training narcotics detection dogs, though there has been a history of prosecuting canine trainers in some countries for selling drug samples they had been given for training purposes and some of the trainers did not want to risk such an accusation. A 2006 cable said that Tajik Border Guards were using trained drug detection dogs as guard dogs, leaving them outside in sub-zero temperatures. The embassy cable said that “the Border Guards have made no sincere effort to integrate the dogs into their work program.”

Cables from Kuwait describe a large canine unit (80 dogs in 2009) used to guard oil fields in the country, with canine units stationed at every refinery gate. Although over 500 trainers have come to the U.S. for training in Front Royal, Virginia, and El Paso, Texas, training is increasingly being done in the regions where narcotics and explosives detection dogs will work. The cables refer to canine training centers in Azerbaijan, Belgium, Brazil, Colombia, Guatemala, the Dominican Republic, El Salvador, Tajikistan, and Trinidad. Even though some countries may not have effective canine units, there seems little doubt that most countries that receive U.S. aid in narcotics enforcement have been anxious to get more canine teams. Countries that are currently attempting to increase their numbers of canine units include Bahrain, Bangladesh, Bulgaria, the Dominican Republic, El Salvador, Finland, Honduras, Kenya, Kosovo, Panama, Paraguay, Peru, Turkey, Turkmenistan, and Uzbekistan.

Although the cables indicate the State Department has been very positive to training provided in Bad Kreuzen, Austria, there has been some friction with Germany, which also provides international training. The Berlin embassy informed the State Department in 2008 of an agreement the Germans made to train representatives of the Iran Revolutionary Guard Corps. The embassy referred to Germany’s “credulity” in accepting “talking points” from Iran.

Cables sometimes refer to programs that have failed to keep their canine programs effective, including the Dominican Republic (dogs reaching the end of their useful lives) and the Philippines (in 2006, country’s armed forces lacked “even a basic canine explosives detection program”). Cables sometimes mention friction between other countries regarding the use of dogs. When the King Abdullah of Jordan visited Baghdad in August 2008, he apparently insisted on having his soldiers sweep the meeting location with dogs, something that offended the Iraqis. Dr. Tariq Abdullah told Americans: “If we visit Amman again, I too will insist that we (canine) sweep the King’s palace and that we bring our own tea and orange juice, as the Jordanians did.”

(King Abdullah is not the only one who thinks bomb dogs are a good precaution to have in Baghdad. In a redacted report released by the U.S. State Department Inspector General in May 2013, Inspection of Baghdad and Constituent Posts Iraq (ISP-I-13-24A), the IG states that several "security programs at Embassy Baghdad are atypical.  The sense and warn system (identifies, tracks, and warns employees of income rocket and mortar fire), biometric access control (daily iris scans or fingerprinting of local employees), emergency reaction teams, and explosives detection dogs are but a few."  The annual cost of the canine screening program is listed in the report as amounting to $50,939,224.)

When it comes to dogs, the U.S. and Cuba may not be so far apart. Although Cuba originally learned many of its canine training techniques from the Stasi (the East German secret police), a U.S. Coast Guard officer assigned to the U.S. Interests in Havana Section visited the Cuban National Canine Training Center in 2008. (See The Dogs of the Stasi.)

One curious fact that is revealed in a cable from the embassy in Kazakhstan is that drug traffickers in the area try to disguise shipments of heroin by coating the packaging with powdered wolves’ teeth. Chalk up another stupid reason for killing wolves.

The following are countries and canine issues mentioned in the cables. The numbers in parenthesis correlate with the 51 cables listed at the end of this blog. The maps are taken from CIA World Factbook.

Afghanistan. The U.S. Mission has, according to a 2008 cable (7), supplied canine units for border work in Afghanistan. Although a U.S. police trainer began training Afghani military personnel, training was taken over by the Austrian Ministry of Interior’s Canine Center (see Kazakhstan’s 2009 conference discussed below), which trained at least three Afghani personnel in Austria. A 2007 cable described an attempted IED attack at Kabul Airport (21):

“At approximately 1000 hours local time on 18 April, a pipe bomb was detected aboard a fuel truck shortly after it entered the north (military) gate to Kabul International Airport. The truck had just passed through an Afghan National Army (ANA) checkpoint and, according to witnesses, the driver appeared not to know where he was going. He had pulled up to the sallyport of an INL construction site, then apparently changed his mind and backed up to start in another direction. The truck was reportedly loaded with kerosene or diesel for ground vehicles. An ISAF [International Security Assistance Force] CANINE team detected explosive residue on the truck and immediately seized the truck and locked down the area. The canine team had been deployed inside the ANA perimeter in response to intelligence that an IED may be on its way to the airport. On further investigation, the pipe bomb was discovered at arm's length in a fuel hose adjacent to the main fuel tank. An EOD team disposed of the device, which contained 1.5 pounds of high explosives and an electronic remote firing mechanism. Questioning of the driver and helper has indicated initially that both denied awareness of the bomb.”

Azerbaijan. A 2009 cable refers to Azerbaijan opening a canine training center (8).

Bangladesh. A 2009 cable says that the Rapid Action Battalion of Bangladesh has a canine corps of 51 dogs (9), up from the 44 noted in a 2007 cable (11).

Belgium. A 2009 cable from the Brussels embassy states that the Belgian Canine Support Service has trained teams to search for drugs, and that these teams are used mostly at airports and train stations.

Colombia. Narcotics detection dogs are frequently mentioned as being used at borders, such as at Ipiales, on Colombia’s southern border with Ecuador (1).

Cuba. Despite the absence of formal relations between Havana and Washington, a 2008 cable (10) states that Cuban authorities have provided the U.S. Coast Guard officer assigned to the U.S. Interests in Havana Section “exposure to Cuban counternarcotics efforts, including providing investigative criminal information, such as names of suspects and vessels, debriefings on drug trafficking cases, visits to the Cuban National Canine Training Center and the anti-doping laboratory in Havana.”

Dominican Republic. A 2006 cable (48) stated that the Dominican Republic “maintained its counternarcotics and explosive detection canine units at its international airports and major sea ports. canine units at the five major airports in the country received updated explosives training and certification in 2006. The DNCD is purchasing canines for training in drug detection. Plans are underway to establish a CANINE training location utilizing an Army base that is currently in use.” The cable also says that the U.S. provided the country “equipment and training to maintain the explosive detection canine units.” A 2010 cable (49) states that a number of dogs in the country’s drug detection program “have met their useful life and are in the process of being retires. Four to six dogs will be retrained in the program for another year or two.”

El Salvador. In November 2004, the State Department’s Bureau of International Narcotics and Law Enforcement Affairs financed the construction of a canine training facility at Planes de los Renderos, just outside of San Salvador. A 2009 cable from the San Salvador Embassy (31) describes U.S. support:

“We have continued to invest in the CANINE program by purchasing training aids and sending instructors to NAS Colombia and NAS Guatemala for training. The Salvadoran police have been committed to developing the program, and their dedication is finally producing positive results. From January through July of 2006, CANINE alerts have detected eleven kilograms (kg) of marijuana, five kg of cocaine, and three kg of heroin, with a combined street value of US$365,000. The CANINE program instructors recently trained four currency detection dogs, and we expect undeclared currency seizures to increase at the international airport.

“Building upon this success, we recently completed the construction of five training cabanas and a rest area at the CANINE facility. With these new editions, El Salvador is now fully competent to train guides and dogs in narcotics, currency, and EXPLOSIVES DETECTION. Despite these capabilities, we have no intention of competing with NAS Guatemala with regards to regional training. We offer an alternative training facility in the event that NAS Guatemala cannot accommodate regional training needs, as well as a CANINE training venue for the International Law Enforcement Academy (ILEA) and other international training agencies.”

Germany. Germany is sometimes cited providing canine support. A June 2006 report (2) from the Embassy in Kabul mentions that the “German Police Project Office (GPPO) was constructing a facility to house 60 canines scheduled for delivery to Kabul in December 2006, 15 of which were to begin training in January 2007 for deployment to border control points. The Berlin embassy informed Washington in May 2008 (17) Germany provided Iranian police with canine detection training in May or June 2008 “as part of a counternarcotics protocol signed by the German Interior Ministry with Iran in November 2007.” The cable referred to Germany’s “credulity in accepting standard IRIG [Iran Revolutionary Guard Corps] talking points on Iran’s activities in Iraq and Afghanistan.”

Honduras. A 2005 cable from Honduras (40) reports that the State Department has provided support for the canine program of the Honduras Frontier Police, including training for handlers and dogs, veterinary services, food, and supplies.

India. In a 2008 dispatch from the U.S. Consulate in Kolkata (16), the West Bengal Police ruled out a bomb as the cause of an explosion 200 meters from the Consulate.

Iraq. Iraq searched refugee camps with canines in April 2009 (18). When the King Abdullah of Jordan visited Baghdad in August 2008, he apparently insisted on having his soldier’s sweep the meeting location with dogs, something that offended the Iraqis. Dr. Tariq Abdullah told Americans (19): “If we visit Amman again, I too will insist that we (canine) sweep the King’s palace and that we bring our own tea and orange juice, as the Jordanians did.”

Israel. A 2004 cable from the U.S. embassy in Tel Aviv (20) detailed that Hamas took credit for killing an Israeli soldier and his dog near Karni Crossing with an IED during a search for weapons.

Kazakhstan. Kazakhstan has requested canine support from the U.S. (22), and according to the Department of State website posting in 2009, has had 94 officers receive counternarcotics canine training. In 2008, the State Department initiated a canine program and funded the purchase of three dogs and sponsored the attendance of three Kazakhstani officers at a two-month course at the Canine Center in Bad Kreuzen, Austria (23). Further:

“The training of the first three dogs was meant to acquaint Kazakhstanis with the Austrian method of training dogs for the search of drugs and allow Kazakhstani and Austrian officials to exchange experience in this area. The Austrian method uses training approaches that minimize stress and conflict and maximize psychological work with the dogs. The training of instructors was followed by a series of interagency training programs in Kazakhstan. Through its grant to IOM, INL is renovating sections of the CANINE facility at the Military Institute of the Committee for National Security.”

From the wording, it is not clear if the Americans are taking credit for the Austrian approach or deferring to it. A 2009 cable (42) indicates that the INL funds participation of Kazakh officers to the extent of $40,000. Further:

“[Kazakh officers] trained at the Austrian Ministry of Internal Affairs' CANINE Training Center successfully conduct training programs at their agencies. Through this program, INL intends to increase the number of instructors trained in Austrian methodology. Kazakhstan is also developing a textbook to train CANINE specialists, including chapters on the Austrian methods. Additional information on training methods in other countries is also necessary to increase the effectiveness of Kazakhstani methods.”

Some of these facts made it into the Kazakhstan—U.S. Foreign Assistance Performance Publication for Fiscal Year 2009. A 2009 cable (41) indicates the INL funded “a study on canine socialization when housed with their handlers,” and that the Kazakh canine service had shifted to dry food for dogs, “which is healthier than the previously-used cooked food.” The cable contained some very curious facts about smuggling drugs in the area:

“Traffickers continue to search for new concealment methods. Recently, traffickers attempted to mask the scent of heroin from canines by coating shipments with powdered wolves' teeth. Traffickers also soak clothing in a heroin solution. When the clothing is delivered the heroin can then be extracted.”

A 2010 memo posted on the INL website, describes an undated competition in which Kazakh canine teams defeated teams from Kyrgyzstan, Tajikistan, Turkmenistan, and Russia. “The competition, won by the team from Kazakhstan, helped develop professional relationships between canine services of the participating countries and proved a popular performance incentive for the trainers.”

Kazakhstan’s 2009 International Canine Conference. An International Conference on the Role of Canines in the Fight against Drug Trafficking, Extermism and Terrorism was held in Almaty, Kazakhstan on March 26-7, 2009 (5). Five Central Asian countries, Austria, and Germany “discussed coordination and the possibility of unified CANINE standards in the region.” Most countries did not appear to have effective programs:

“In general, most national representatives complained that insufficient budgets resulted in poor quality dogs and undertrained handlers. Only Uzbekistan touted its accomplishments but deferred from volunteering to be a regional breeding center.” The Kazakhstani program was seen as adequate and sustainable and Kazakhstan volunteered to host regional training, including for Afghanistan. There was additional evidence about why some countries did not have adequate programs:

“Alexander Bodnar, head of the CANINE Department of Kazakhstan's Military Institute, presented his views on the reasons that CANINE programs in Central Asia have not succeeded. He stated that there are no regionally accepted methods of training CANINE specialists and dogs. Moreover, there are an insufficient number of dogs meeting the selection requirements for special training. These countries do not sufficiently fund their CANINE programs and the budgets provided are not sufficient to purchase quality dogs. Law enforcement agency headquarters generally do not understand the needs of the CANINE services and the importance and abilities of their CANINE services. Bodnar also complained of an insufficient number of instructors and managers in Central Asia capable of conducting training for CANINE specialists. He proposed retraining current CANINE specialists as opposed to training new ones. He also stated that there is very little communication among CANINE instructors in the region.”

Bodnar said that some dogs at the canine center of the Tajik Border Guard Service died because of insufficient care. The Drug Control Agency in Tajikistan does, according to Bodnar, take good care of its dogs. Bodnar was also critical of Kyrgyzstan. A Kyrgyz official seemed to agree:

“Pavel Sukhodolskih, Head of the CANINE and Cavalry Services of the Border Guard Service of Kyrgyzstan, discussed the activity of criminal groups within large flows of migrants. Currently, the Border Guard Service, the State Customs Committee, and the Drug Control Agency have 54 dogs trained in searching for drugs and explosives; however, they are only able to cover 20% of the Kyrgyz border with Kazakhstan. Sukhodolskih complained that of a lack of pure-bred dogs, lack of professional instructors, insufficient equipment, and absence of methodological literature hamper efforts to train specialists.”

Although the Uzbek government representative touted his countries canine program, noting that his trainers had worked with experts from Austria, Kazakhstan, France, Russia, and Germany, the U.S. embassy cable contained a parenthetical comment: “(COMMENT: There is some question if all Central Asian countries, particularly Tajikistan, would be willing to attend training in Uzbekistan. END COMMENT).”

An Austrian participant was broadly critical of canine training in Central Asia:

“Josef Schuetzenhofer, the Head of the Austrian Ministry of Interior's CANINE Center, discussed existing problems and prospects for future cooperation. Since May 2005, he has had an opportunity to learn about the CANINE systems in Uzbekistan, Turkmenistan, and Kazakhstan. He maintained that there is a lack of quality work dogs, a lack of breeding dogs, and improper dogs are purchased. All services should pay attention to the selection of dogs, proper training of puppies, training dogs in a less stressful manner, training with proper equipment, and humane treatment of dogs. In the future, Schuetzenhofer would like to see an increase in the use of CANINEs, interagency cooperation, and the use of real drugs for training, as well as bigger budgets better used, and an improvement in breeding programs.”

The embassy cable said that all dog training programs in Kazakhstan use drug substitutes for training, partly because trainers refuse to use real drugs. Administrative and criminal cases were initiated against canine officers in the past for misuse of training samples. The cable also concluded that “all services in Kazakhstan will unanimously move to the Austrian methodology of training dogs.”

The INL website describes providing three dogs in 2008 that were trained in Austria and then sent to training facilities in Kazakhstan.

Kenya. A cable from January 2009 (30) states that the Kenya Revenue Board will be acquiring four more dogs from the U.S. to improve and expand its Canine Enforcement Program.

Kosovo. The Kosovo Police Service swept a truck at the Kulla border with dogs that alerted (24). A large amount of cocaine was found.

Kuwait. The Oil Sector Services Company (OCCC) was reported by the embassy in Kuwait in 2009 (25) to be putting together an “80 team strong canine unit trained by a U.S. company. An earlier report (26) indicated that canine units were to be stationed at every refinery gate.

Mexico. The El Paso Canine Center in Texas has, according to the INL website INL website, trained dogs for the Mexico City Airport.

Additional Note. In a presidential memorandum to the Secretary of State published in the Federal Register on September 21, 2015, President Obama stated "the United States has provided scanners, x-ray machines, other non-intrusive inspection equipment, as well as trained canines, to enhance Mexican authorities' ability to detect illicit goods at key checkpoints and ports of entry along the border, resulting in significant seizures of illicit drugs, currency, weapons, and explosives."  This may indicate that both narcotics and explosives detection dogs are being supplied by the U.S. to Mexico.  Presidential Determination on Major Drug Transit or Major Illicit Drug Producing Countries for Fiscal Year 2016, 80 Fed. Reg. 57063 (September 21, 2015).

Panama. A 2005 cable (45) states that the “United States has provided Panamanian Customs with training, operational tools, and a canine program that has become a linchpin of the Tocument International Airport Drug Interdiction Law Enforcement Team. During 2005, the canine program was dramatically expanded, allowing it to operate outside the confines of the airport.”

Paraguay. A 2005 cable (46) states that “the continued purchase and training of new canine units have helped to increase overall cocaine seizures for the past three years.” The cable refers to INL funding and says that the government of Paraguay “does not have the resources to carry out these essential activities.”

Peru. The Lima Embassy in 2008 (27) described dogs finding $120,000 hidden in a nylon stocking strapped to a man’s body, and later finding cocaine on a flight bound for Turkey. The U.S. is helping fund canine narcotics detection teams for Peru (28, 29).

Philippines. A 2005 cable indicates that dogs were used in putting down a prison riot (43). A 2006 cable (44) stated that the Armed Forces of the Philippines lack “even a basic canine explosive detection program.”

Ports. Turkey has sniffer dogs at the Port of Izmir (4), though the embassy cable states that there is no device to screen containers. Argentine customs officials use mobile cargo scanners, but also have a canine unit (6). Finland, according to a 2009 cable (15) has “enhanced its use of narcotics detection canine units at key ports of entry into Finland.” The cable says this is seen by Finland as primarily having a deterrent function.

Tajikistan. A 2006 cable (13) notes that International Law Enforcement and Narcotics, a bureau in the Department of State, was critical of the Tajik use of dogs:

“In late 2005, INL funded a program to provide the Tajik Border Guards with drug-detecting dogs. The Border Guards cannot account for all the dogs provided, and post has previously suspected that local Border guards sold the pups of these dogs for personal profit. During October and November visits to the Bog and Bakhorat border posts, EmbOffs [embassy officers] observed other INL-donated dogs posted outside in sub-zero temperatures to serve as watchdogs, which adversely affects their intended purpose of detecting narcotics. COMMENT: Post is deeply disturbed by the misuse of INL-provided dogs. While this project is designed to help fortify the border from the illicit narcotics transit, the Border Guards have made no sincere effort to integrate the dogs into their work program. Post's Senior Law Enforcement Advisor attended an unproductive National CANINE Strategy Interministerial Subcommittee meeting. The Interministerial group has failed to come up with government resources to maintain the dogs. As a result, Post has decided that until the National CANINE Strategy is finalized with clear delineation of responsibilities among the Tajik law enforcement agencies, we will not conduct any dog-related program. Nor will we agree to provide additional dogs, unless they are first neutered and spayed to preclude breeding for sale. END COMMENT. “

Nevertheless, in 2009, another cable from Tajikistan referred to building a new Drug Control Agency canine training facility, though apparently without U.S. support (14).

Trinidad. A 2007 cable (50) describes Trinidad’s canine academy program, funded by the Department of State:

“The K9 Academy is composed of 18 canines and their respective handlers: 9 explosive detection canines (or bomb dogs), 6 tactical/narcotics dogs, 2 straight narcotics and 1 cadaver-finding dog. The bomb dogs, who work with the Explosive Detection and Disposal Unit, have responded to numerous threats in all parts of the country. Their debut in service came with a series of small and still unsolved explosions in Port of Spain in mid-late 2005. The dogs were also put into regional service when the Indian Black Cat Commandos requested a dog and handler to search for bombs at Providence Stadium in Guyana during the Cricket World Cup in Spring 2007.

“The seven canines that make up the Tactical Narcotics team have been instrumental in the discovery of over 350kg of marijuana, 1 kg of heroin and 9 kg of cocaine between May 2006 and May 2007, valued at approximately USD 670,000, as well as finding arms and ammunition. The CADAVER DOG has found one body so far and works with the Homicide branch of the Police Division.

“The K9 Academy continues to grow. The renovated kennels can now house 36 canines. In an effort to integrate female officers, the necessary accommodations are being constructed at the academy. Recertification is required every year and as a result, one of the initial K9 officers has reached the level of assistant instructor. Due to the popularity and prestige of the unit, a competitive candidate waiting list now exists.

“Post's INL program contracted with CSI International to conduct the initial training and certification. Since then, the Government of Trinidad and Tobago has retained CSI for a two year period to oversee the continuous training and re-certification of the dogs. President and CEO of CSI, Anthony Piegare continues to receive high praise from handlers and the Police Service as a whole, for his level of expertise, commitment to excellence and to the program. Post appreciates his willingness to work as a partner to the program, ensuring its success.”

A 2010 cable (51) provided an update on the canine program:

“All of the dogs continue to be used extensively at the airports and other points of entry, in addition to being used in the EXPLOSIVE DETECTION unit. They have conducted over 200 operations including search of outgoing and incoming passenger's baggage, import and export cargo, courier packages, major high profile events and during several bomb threats. They have assisted in the capture of over 25kg of marijuana, and approx 5kg of cocaine. When seen carrying out their duties, these canines convey a sense of security to the public. However, these dogs have been over-worked and may need to be replaced soon.”

Turkmenistan. A 2010 cable (36) indicates that “the Turkmen government has a particular interest in canine training, anti-cyber crime technology, and training in hostage negotiations.”

U.S. Support for Other Countries’ Canine Programs. The U.S. sometimes provides support for programs of other countries training sniffer dogs, such as Turkey’s Golbasi National Dog Training Center (3), Dominican Republic anti-narcotics officers, who went to Miami for training (12), the Trinidad and Tobago Canine Training Academy (32), and Bulgaria’s Training Center at Balchik (47).

Uzbekistan. The Embassy in Tashkent reported in April 2006 (33) that Uzbekistan’s use of dogs at borders was “thorough and professional.” The amount of U.S. funding is unclear (37, 38). France provides some training (39). In 2008, a cable (34) said that the Uzbeki Customs National Canine Training Center “has become a regional center for the World Customs Organization and has begun training officers from Afghanistan, Tajikistan, Kyrgyzstan, Iran, Mongolia, and Turkmenistan. A 2009 cable (35), however, complained that at the Temez River Port there “is only one canine available to examine incoming agricultural cargo from Afghanistan, and it tires after no more than 20 minutes in the intense summer heat.” The State Department's 2010 Trafficking in Persons Report stated that Uzbekistan "routinely compels children and adults as laborers in the country's annual cotton harvest. During the 2009 fall harvest, school children were forced to pick cotton in at least eight of 14 regions in the country." It must be wondered if efficient border guards always have humanitarian interests in mind.

(1) Embassy Bogota, December 2009, ID 10BOGOTA244, 2010-01-22.
(2) Embassy Kabul, June 2006, ID 06KABUL4317, 2006-09-21.
(3) Embassy Ankara, May 2004, ID 04ANKARA3756, 2004-07-06.
(4) Embassy Ankara, December 2004, ID 04ANKARA6649, 2004-12-01.
(5) Embassy Astana, April 2009, ID 09ASTANA660, 2009-04-17.
(6) Embassy Asuncion (Paraguay), January 2008, ID 08ASUNCION62, 2008-01-29.
(7) Embassy Astana, November 2008, ID 08ASTANA2352, 2008-11-26.
(8) Embassy Baku, November 2009, ID 09BAKU918, 2009-11-25.
(9) Embassy Dhaka, November 2009, ID 09DHAKA1014, 2009-11-03.
(10) U.S. Interests Section Havana, December 2008, O8HAVANA952, 2008-12-24.
(11) Embassy Dhaka, November 2007, 07DHAKA1785, 2007-11-13.
(12) Embassy Santo Domingo, November 2003, 03SANTODOMINGO6906, 2003-11-28.
(13) Embassy Dushanbe, December 2006, 06DUSHANBE2191, 2006-12-07.
(14) Embassy Dushanbe, December 2009, 09DUSHANBE1454, 2009-12-24.
(15) Embassy Helsinki, November 2009, 09HELSINKI1429, 2009-11-16.
(16) Consulate Kolkata, January 2008, 08KOLKATA22, 2008-01-18.
(17) Embassy Berlin, May 2008, 08BERLIN685, 2008-05-22.
(18) Embassy Baghdad, April 2009, 09BAGHDAD1106, 2009-04-24.
(19) Embassy Baghdad, August 2008, 08BAGHDAD2724, 2008-08-25.
(20) Embassy Tel Aviv, December 2004, 04TELAVIV6197, 2004-12-07.
(21) Embassy Kabul, April 2007, 07KABUL1412, 2007-04-25.
(22) Embassy Astana, October 2008, 08ASTANA2079, 2008-10-20.
(23) Embassy Astana, December 2008, 08ASTANA2380, 2008-12-02.
(24) Embassy Pristina, January 2007, 07PRISTINA21, 2007-01-10.
(25) Embassy Kuwait, September 2009, 2009-09-15.
(26) Embassy Kuwait, December 2006, 06KUWAIT4562, 2006-12-04.
(27) Embassy Lima, March 2008, 08LIMA398, 2008-03-06.
(28) Embassy Lima, August 2005, 05LIMA3419, 2005-08-09.
(29) Secretary of State, 09STATE32018, 2009-04-02.
(30) Embassy Nairobi, January 2009, 09NAIROBI12, 2009-01-02.
(31) Embassy San Salvador, September 2009, 06SANSALVADOR2267, 2006-09-14.
(32) Embassy Port of Spain, April 2006, 06PORTOFSPAIN445, 2006-04-10.
(33) Embassy Tashkent, April 2006, 06TASHKENT777, 2006-04-21.
(34) Embassy Tashkent, December 2008, 08TASHKENT1471, 2008-12-17.
(35) Embassy Tashkent, April 2009, 09TASHKENT437, 2009-04-03.
(36) Embassy Ashgabat, January 2010, 10ASHGABAT94, 2010-01-20.
(37) Embassy Tashkent, February 2009, 09TASHKENT220, 2009-02-26.
(38) Embassy Tashkent, November 2009, 09TASHKENT1958, 2009-11-03.
(39) Embassy Tashkent, October 2010, 08TASHKENT1218, 2008-10-21.
(40) Embassy Honduras, March 2005, 05TEGUCIGALPA540, 2005-03-10.
(41) Embassy Astana, December 2009, 09ASTANA2196, 2009-12-22.
(42) Embassy Astana, October 2009, 09ASTANA1768, 2009-10-02.
(43) Embassy Manila, March 2005, 05MANILA1199, 2005-03-15.
(44) Embassy Manila, October 2006, 06MANILA4396, 2006-10-18.
(45) Embassy Panama, December 2005, 05PANAMA2375, 2005-12-07.
(46) Embassy Asuncion, April 2005, 05ASUNCION488, 2005-04-11.
(47) Embassy Bucharest, July 2005, 05BUCHAREST510, 2005-07-07.
(48) Embassy Santo Domingo, November 2006, 06SANTODOMINGO3438, 2006-11-03.
(49) Embassy Santo Domingo, February 2010, 10SANTODOMINGO226, 2010-02-10.
(50) Embassy Port of Spain, August 2007, 07PORTOFSPAIN786, 2007-08-09.
(51) Embassy Port of Spain, February 2010, 10PORTOFSPAIN136, 2010-02-01.

Florida Court Sets Unreasonable Expectation on Dog to Distinguish Trace Amounts from Residual Drug Odors

Near midnight on August 14, 2007, James L. Wiggs was pulled over by a Sarasota County Deputy for running a red light on U.S. 301. While one deputy prepared to write a citation, Deputy Indico conducted a sniff of the car with Zuul, a German Shepherd acquired from Hungary, that Indico had begun training in February 2007. Zuul alerted and a search of the vehicle produced cocaine.

Indico and Zuul had completed an 80-hour narcotics training course offered by the Sarasota Sheriff’s Office and a 400-hour patrol course. A patrol course often focuses on suspect apprehension, but it is not clear that a class of this length would be limited to that topic. The court did not discuss Indico’s experience prior to being paired with Zuul, which would be relevant in determining whether the training he received with the dog was adequate. The team was certified by the Florida Department of Law Enforcement (FDLE) and the National Police Canine Association (NPCA). The certification process had been completed in April 2007.

Zuul’s training was described by the court as follows:

“The dog was trained to detect different scents of narcotics by placing the drug on top of a bean bag so the bag absorbed the scent. Then the bean bag was introduced to the dog in the form of a hide-and-seek game in which the dog used his nose to locate the bean bag. Eventually, the dog was introduced to the actual narcotic. Zuul was trained to detect marijuana, cocaine, methamphetamine, and heroin.

“Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

“Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.”

It is to be noted that 0.1 gm is a very small amount of material for training; even 100 grams (about 3.5 ounces) is low as well. The amounts perhaps suggest that the dog was being taught to recognize very small amounts of narcotics of a level that would commonly indicate personal use, which the local prosecutor may have been willing to consider a prosecutable level.

To receive NPCA certification, Indico and Zuul had to achieve 75% accuracy, and had to find narcotics in two out of four vehicles and in two out of three rooms in a building. The FDLE certification included apprehension, tracking, and building searches, but did not involve narcotics detection training. They also trained on a weekly basis. Monthly training logs of the team were introduced into evidence.

Deputy Indico kept a monthly report of their field activity, and the reports from April 2007 to August 2007 were also introduced into evidence. When Zuul gave a positive alert but no drugs were found, Indico documented any history of the vehicle or its passengers with drugs, generally deriving the information from interviews of the individuals involved. “If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert.” This is tantamount to accepting hearsay evidence as indicating that residual odor was present, which is weak support for such an argument, but it must be noted that Indico was documenting what information he was provided.

The Florida appellate court reviewed each of the sniffs Zuul had made between May and August of 2007, and calculated that the team had been summoned to 17 vehicle stops, ten of which resulted in an alert with no discovery of drugs. Only four post-alert vehicle searches, including the one involving Wiggs, the defendant in the case before the court, resulted in the discovery of drugs. In all but three of the stops where alerts did not produce drugs, Indico recorded that an occupant of the car admitted to smoking marijuana or had some history involving drugs or people who used drugs, though Indico generally did not follow up regarding the histories he noted.

Reliance on Harris

The Florida appellate court based its decision in large part of its analysis on the Florida Supreme Court case of Harris v. Florida, 989 So.2d 1214, 2011 WL 1496470 (2011), which we discussed previously. In that case the Florida Supreme Court favored a line of Florida cases that had, among other things, considered the dog’s selection, training, and field track record (including false alerts) in determining whether probable cause existed from a dog’s alert. (See discussion of Florida v. Foster, 390 So.2d 469 (Ct. App. 1980) in Police and Military Dogs.)

The appellate court noted the Supreme Court’s emphasis on a dog’s field records:

“[A] dog's alert to residual odor, though different from a false alert, may not indicate that drugs are actually present at the time…. The [Florida Supreme Court] rejected the State's argument that field records are meaningless because dogs do not distinguish between the odor of drugs that are present and residual odors. Instead, the court determined that evidence explaining unverified alerts would allow the trial court ‘to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.’”

The Supreme Court had also emphasized the lack of evidence concerning the dog’s training, and that the prosecution failed to present any quantification of the dog’s success rate in the field because it did not introduce the dog’s field performance records and could not explain the significance of the dog’s unverified field alerts. (Of course, the prosecution may not introduce the field records because of a desire to avoid providing evidence it considered weak and which the defense could attack and perhaps exclude.) The Supreme Court concluded that because the prosecution failed to establish a reliable alert, it failed to establish probable cause, and the motion to suppress should have been granted.

The appellate court in Wiggs believed the same analysis provided by the Supreme Court in Harris should lead to the same result from the facts before it. The appellate court found Zuul’s field performance records to be “problematic.” The court found that Zuul’s accuracy rate was approximately 29%, which it derived from dividing the four alerts leading to drugs by the 14 alerts in total. The court said this “accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert.” The court rejected the prosecution’s argument that, given the admitted drug usage and drug histories recorded in most of the cases, the field accuracy rate was 100%. The prosecution probably overstated the case, since there were some instances where no drug usage or history was noted, meaning that the accuracy rate, even from the prosecution’s perspective, was at most 79% (11/14), but more likely about 64% (9/14). The appellate court acknowledged Indico’s records on prior use or history, but said “the explanations were not specific enough to establish that existence of residual odors on which Zuul should have alerted.” The court thus emphasized what it considered to be poor recordkeeping.

“In five of the unverified alerts, the deputy merely testified that the vehicle had a ‘drug history.’ However, the deputy did not explain what this history entailed or why it ensured that drugs had once been present in those vehicles. In four of the unverified alerts, Deputy Indico testified that someone in each vehicle had used narcotics recently. However, there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect. The absence of this information leaves us unable to evaluate the significance of these unverified alerts. The evidence simply does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs' vehicle. Thus, we are not inclined to consider these nine unverified alerts in Zuul's field accuracy rate.”

The appellate court allowed that one of the alerts not producing drugs nevertheless involved an odor of marijuana strong enough that even Indico could smell it, but that adding this to the accuracy calculation still only brought it up to 36%.

The appellate court also noted the lack of detail regarding the alert to Wiggs’s vehicle:

“No evidence was presented about the nature of the alert, the search of Wiggs' vehicle, or the location of cocaine therein. Thus, it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself. The State has failed to make a connection between Zuul's alert and the discovery of the drugs in this case.”

This criticism is valid, but should also be directed to Indico’s supervisor, who should have seen that Indico’s recordkeeping was inadequate. The appellate court concluded that the motion to suppress should have been granted.

Concurring Opinion

Judge Altenbernd, concurring in the result, was nevertheless “inclined to believe” that the dog’s alert, combined with Wiggs’s sweating and nervousness, along with the imprisonment he told the Sarasota County Deputy about, “should have been enough to permit this search….” This judge raised the issue that was not faced in the majority decision:

“It seems obvious that Zuul is alerting on residual drugs that do not lead to the discovery of arrestable quantities of drugs. It is not that Zuul is alerting when there are no drugs to smell; he is alerting to molecules of drugs left behind in vehicles where drugs have been used or transported. Thus, in Harris, the court is requiring that law enforcement train dogs to distinguish between the odor of minute quantities of drugs and larger quantities of drugs. If that cannot be done for a particular drug, it seems we will need to abandon dogs as a method of obtaining probable cause for that drug.”

This analysis must be questioned. The Florida Supreme Court in Harris was concerned that an absence of field records meant that the prosecution could not establish any aspect of the dog’s performance in the field and no correlation with training records could be made. That was not the case here.

Judge Altenbernd also questioned the use of percentages:

“The dog is merely providing roadside information to help an officer decide whether there is probable cause to perform a search. Even if Zuul helps locate an arrestable quantity of illegal drugs only 36 percent of the time, I am not entirely convinced that evidence seized, based in part on his alert, must be suppressed. The notion that the exclusionary rule will be applied if a dog does not achieve a success rate of any particular percent, whether 25 percent or 75 percent, is establishing a bright line that I am not currently convinced to be constitutionally necessary.”

Courts have often looked at accuracy rates, and have not always expected them to be high. See U.S. v. Donnelly, 475 F.3d 946 (8th Cir. 2007) (accuracy rate of 54%, along with numerous other factors, was sufficient to provide probable cause for search); U.S. v. Limares, 269 F.3d 794, 797 (7th Cir. 2001) (dog gave false positives between 7% and 38% of the time).

Finally, the concurring judge noted that an explosives sniffing dog at Miami airport would not be retired even if his alerts only produced explosives 36% of the time.

Defects in the Opinion

The court’s reliance on Harris is perhaps inevitable, but it is our opinion that more of a distinction should be made between that case and this one than has been made by the appellate court. There, the handler had virtually no field records. Here, the handler had records of every single sniff and every single alert. Where alerts did not result in drugs being found, the handler had consistently made an effort to find out if residual odor was possible. The court seems to feel that some level of recordkeeping would allow for scientific determination of whether residual odor was detected by Zuul, or if something else explained the alerts, such as cueing (an issue not raised in the case). Better recordkeeping could have been required, but would not have proven the existence of residual odor.

Dogs have different levels of minimum thresholds, which is what residual odor is, meaning that the alerts where there was some drug history could have all been correctly made. Indeed, the court’s logic might mean that a dog alerting more accurately, producing more alerts to small concentrations of illicit chemicals, would provide less acceptable evidence than a dog not able to detect such small concentrations. The result would be that the better dog might have an alert thrown out while a dog with less skill could have his retained because he would not detect small and residual concentrations. The judiciary should not be creating law that favors the less accurate instrument over the more accurate instrument.

Indico could have more carefully documented the circumstances that might indicate the dog was alerting to residual odor, but in many cases the occupants of a vehicle were making an admission against interest and might be inclined to put their prior usage further back in time to reduce potential risk from the admission. Looking up records of prior crimes and encounters with the police would hardly produce a complete description of when the drugs that left the residue were actually present, though the effort should have been made.

The appellate court is correct in saying that “it is impossible to tell if Zuul alerted on a residual odor, as did the dog in Harris, or whether he alerted on the actual cocaine itself.” This could eliminate a great many alerts, since a dog may sometimes alert at a part of a vehicle relatively distant from the location where drugs are found. Other factors come into play. The driver might smoke a joint, throw it away, but then open the car door with the hand that held the joint. Cocaine, on the other hand, may never be in direct contact with the user’s hands.

The court complains that “there was no testimony regarding how long before the stop the drugs had been used or how residual an odor Zuul could be expected to detect.” Some higher level of precision might be reached if sophisticated forensic testing were required to determine a dog’s threshold, but these thresholds vary from dog to dog and day to day, and requiring such precision in order to justify use of a dog would effectively mean that the inability to precisely calibrate a dog would become an argument against using them at all. No exact molecular level of illicit chemicals in the atmosphere would guaranty that illegal drugs are present. Too many factors affect the diffusion of chemicals—the type of drug, the amount of it present, how it is packaged, where it is hidden, temperature, humidity, wind level, the dog’s health, and so forth. These factors would be relevant to the operation of any chemical detection apparatus. The dog’s alert is an indication that some level of narcotic chemicals are in the atmosphere. That is what it is trained to detect. An actual presence of chemical odor detected by a properly trained and certified canine, with adequate documentation of field work that does not negate the skill of the dog, should be enough for probable cause.

The court then states that the “evidence does not explain why the alerts to those residual odors would give rise to probable cause to search Wiggs’ vehicle.” The question should not be whether the dog only recognizes a threshold amount of chemical such that a search will inevitably result in a finding of drugs, but whether there is a sufficient probability that a search is justified. A large amount of drugs removed several days or hours before the sniff may leave as much odor as a small amount of drugs presently in the vehicle but well hidden and tightly packaged. The dog cannot be expected to distinguish between these two possibilities as this court seems to require.

The concern in Harris, as we read it, was that there were no field records for the dog involved. The Florida Supreme Court there stated:

“Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog's reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog's performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.”

Thus, the Florida Supreme Court concluded that field records were essential to determining the dog’s reliability. Although that court was concerned with alerts that did not produce drugs, the primary focus of the argument was that the dog should be found to be reliable in finding drugs. The point of field records is not to establish the ratio of false alerts to residual alerts, but to provide another tool for assessing reliability by determining whether there might be a trend in the dog’s alerting pattern that would indicate that its accuracy has declined, an issue that should be attended to through additional training. There were no field records in Harris, making this part of the evaluation impossible. The Harris court acknowledged the prosecution’s argument in that case that it was impossible to distinguish a false alert from an alert to residual odor, but said that because “the State did not introduce field performance records, the State was not able to explain the significance of any unverified alerts in the field.” In Wiggs, there were field records. Comparing the field records and the training records, the argument could be made that Zuul was alerting to residual odors a significant portion of the time. No such argument could be made in Harris. The burden should be on the defense, once field records were produced, to establish that they indicate the dog’s skill has not remained at the appropriate level. That was not done by the defense here. The defense merely raised the possibility that the field records indicated a high proportion of alerts to residual odor. Saying that the proportion of residual alerts was high does not establish that the dog must have been falsely alerting a high portion of the time as well. That is the assumption that the appellate court seems to have accepted.

Since Zuul’s training records in the present indicated a consistent level of accuracy, the number of alerts not leading to the discovery of drugs here could argue that the dog was sometimes alerting to residual odor. A smart drug dealer will not travel around with drugs in his car unless he is making a purchase or delivery. The behavior patterns of criminals in the Sarasota area should not be a reason for negating the alerts of a dog.

When we reviewed Harris, we concluded that it was correctly decided. We based that judgment on the fact that the court determined that defense counsel had the right to review field records, and a lack of such records meant that significant evidence concerning the dog’s behavior was not being made available to the defense. Here, those records were provided. The fact that the dog’s field records are inconsistent with its training records can be more easily explained by the presence of residual odor than by some sudden and unexplained drop in the dog’s accuracy. Alternatively, the defense could have argued that the dog was being cued in the field, an argument that could have had some cogency if evidence for it had been presented. Still, that would be an argument based on the handler’s failures, not the dog’s. The appellate court’s determination to lay the blame on the dog is misplaced, not only as to this case, but also as to canine detection law in general.

This case was poorly reasoned and decided incorrectly. There were deficiencies in Indico’s practices, but they were not of such a level that the appellate court should not have deferred to the trial court’s determinations.

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

Is the Bed of a Pickup as Private as the Inside of a Car? Probably, but the Barrier is Imaginary and More Easily Crossed

During a traffic stop in Marysville, California, on May 14, 2009, a Marysville Police Department reserve officer, Matthew Minton, pulled over a pickup because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. The officer saw that the driver, Robin Briggs, had glassy eyes and might be intoxicated. Returning to his patrol car, the officer radioed for assistance from Officer Christopher Miller who “was more familiar with driving under the influence investigations and worked with a narcotics detection dog.” Miller arrived with his dog about two minutes into the initial stop.

Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.

Tommy

Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:

“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”

Sniff and Searches

At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:

“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”

The description indicates that Miller was an experienced handler using good practices.

Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:

“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”

The policy also indicates good practices on the part of the police department.

Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.

The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”

Reliability

The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.

Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.

As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:

“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”

Training and Certification

The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:

“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”

Scope of the Sniff

The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:

“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”

The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.

Plain-Sniff Doctrine

Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.

This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.

Conclusion

The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.

The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.

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

People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).

The Hunting Hounds of Queen Elizabeth I

In 1576, George Turbervile published the Booke of Hunting, being in large part a translation of the work of Jaques du Fouilloux, La Venerie, published in 1562. Turbervile was a poet and fellow of New College, Oxford, where he studied law. He traveled widely, going to Moscow to the court of Ivan the Terrible in 1568.

In translating du Fouilloux, Turbervile copied most of the woodcuts from the Frenchman’s book, though minor changes can be detected even in those plates copied closely. One significant difference between the two authors, which can be seen in the subjects of their respective graphics, was that du Fouilloux published during the reign of Charles IX, though he was perhaps writing during the reign of Henry II (died 1559) and the short reign of Francis II (1559-60), while Turbervile published when Queen Elizabeth was 43 years old.

Turbervile often refers to the presence of the Prince or chiefe, whose position in the hunt involves receiving certain honors and explanations from the huntsman, but the woodcut plates show this position filled by a young woman, and a plate titled, “The report of a Huntesman upon the fight of an Hart,” is followed by a poem beginning, “Before the Queene, I come report to make….”

It might seem that a great deal of animal cruelty was involved in the hunt, but if I had to choose I’d rather have been a deer in Queen Elizabeth’s forests than a calf in a modern feedlot. In a very significant way, however, one’s modern sensibilities must be suspended. Presenting deer turds on leaves to a queen is not something that we now could imagine as anything but an offense, but the responsibility of doing so was a great honor to the huntsman of five hundred years ago, and would have been well appreciated by the monarch.

Kennels

Fouilloux depicts a kennel that is similar to that described nearly two centuries earlier by Phoebus, with two stories and a large yard. This is shown in the second plate. A fountain is near the kennel, from which a spout fills a trough, which in turns empties into a stream. A feeding trough stands in the middle of the yard. A dog uses a post covered with rope and perhaps canvas to scratch, and it appears to invite the dog to urinate. The kennel is described as follows by Turbervile (using the original spelling, though not the long "s", sometimes called the German s):

“A kennel ought to be placed in some orientall [eastern] parte of a house, where there may be a large courte wel playned, being fourscore paces square … but the greater and larger that it is, the better it will be for the Houndes, because they shall have the greater pleasure to play themselves, and to skimmer, through the middest of it, were meete and good to have a little chanell of good fountayne water, neare unto the which you shall lay a great trought of stone to receyve the course of the sayde water, the whiche trough shalbe a foote and a halfe high, to the end the houndes may drinke therat the more easily, and that trought muste be pearced at the one ende, to let out the water, and to make it cleane when you would. In the highest place of the Courte it shalbe good to buylde the kennel or lodging for the Houndes, in the whiche you must have two chambers, whereof the one shalbe larger than the other, and the same should be a chimney, great and large, to make a fire when neede shall require. The gates and windows of the chamber, must be set and situate agaynst the rising of the Sunne and the South: the chamber should be raysed three foote higher than the levell of the ground, and in the floore you shoulde make two gutters and holes to the ende the filthinesse and uryne of the Houndes may thereby avoyde, the walles ought to be well whited, and the plankes well mortified and ioyned, and so shall spyders, flease, punayses and such like, the lesse breede and remaine therein. You must always leave them some little dore or wicket to go out into the courte when they would skimmer or ease themselves, then must you have in the chamber little bedsteads which shalbe raysed a good foote from the ground, and therwithal let every bedstead have under it a roller to remove it where you will when you would make the place cleane: and againe that when they come from the chace, and that it were needefull to warme them, you may rolle them as neare ye fire as you will; also those bedsteads must be covered wt hurdels or plankes pearced, to the end yt when the hounds do pisse, the urine may drayne to the ground.”

Certain substances were not to be used in drinking and feeding vessels:

“You must take heede that you give them no drinke in a vessell of copper or brasse, for those two kindes of metals are venomous of their nature, and cause the water which commeth in them to turne and to stinke, which woulde greatly anoy the houndes.”

Bread, a principal portion of the dogs’ diet was to be broken so that the dogs can eat, even “of evill appetite.” As noted in the picture, Turbervile also recommended that the feeding baskets “should not be emptie at any time.”

Although English kennels may have been as elaborate, the first plate in Turbervile’s book may show a typical country kennel of the sort he was more accustomed to see. The kennel is only one floor, with a row of doors that may indicate separated spaces for the dogs, or may merely suggest that the structure was easily aerated by having multiple openings in the warmer months, while the dogs would be housed somewhere else, perhaps with families, in the winter.

Care of Puppies

Fouilloux and Turbervile describe caring for mothers and their puppies. When dogs are born in winter, particular care is required, which involves keeping the puppies in a barrel:

"Fyrst if they be whelped in Wynter, you shall take a Barrell or a Pype well dryed, and kocke out the heade at the one ende thereof, afterwardes put strawe therein, and set it by a place where there is ordinarily a good fyre, then turne the open ende towardes the fyre, to the ende the whelpes may have the ayre thereof, and you shall feede the damme with good pottage or broth made with Beefe or Mutton... and when you perceive that they beginne to goe, you shall have a net made of strong thread, laced with a thong, and fastned about the Tun or Pype... so that you may kepe them from going out, and that other dogs do not byte them, or that they be troden upon or marred with mens feete."

Apparently the original crate was a barrel with netting over the open end. In depicting this care, Fouilloux places the barrel outside, as does Turbervile in copying him, where no fire is present. Various potions for bathing and anointing the puppies are described, often including spices and nuts.

Training

Hounds were coupled in training, and it was seen as best to couple “yong houndes” with “olde bitches, to teache them to followe.”

The dogs were to be taken through “greene Corne fields and through the medowes,” where they were to learn the huntsman’s voice, and to accustom them to sheep and other domestic animals. If “any dogge that is so il taught as he would runne at a sheepe or any such tame beast, you must couple him with a ramme or a stoute Sheep, and with your wande you muste all to pay him and beate him a good while, crying and threatening to the ende that another time he may know the rate of suche as use it.”

Thus, beating was part of training. The use of a bracing was, however, apparently designed to let the older dog keep the younger one out of trouble. To get rid of “lice fleas, and other vermine and filthie things, and for remedie thereof you must washe them once a weeke in a bath made of hearbes.” Something of a recipe for the bath water is then provided, which includes marjoram, sage, rosemary, and salt.

Dogs were to be trained to swim, since in the hunt they would have to cross rivers and pools. They were often taught to hunt the hare before beginning on deer. Hunting deer began at 17 or 18 months.

The Huntsman’s Skill

The huntsman, in addition to knowing the use of the hounds, had to become familiar with the animals hunted, which involved the ability to read their tracks. An interesting graphic in Fouilloux, picked up by Turbervile, shows the huntsman looking at two tracks but imagining the leg of the hart he will be pursuing. The huntsman also had to know the droppings of the deer, and to be able to tell the size of the animal, when the droppings had been left, what they said about the size of the deer and the direction in which it was moving. There was a specific term for the droppings of deer-like animals, variously spelled, but the Oxford English Dictionary prefers fumet or fumishing, attributing the earliest usage to the papers of Henry VIII, “the scent and femyseshyng of such deir.” Turbervile generally spells the word fewmet. A sampling of such wisdom will no doubt be sufficient:

“You muste understand that there is difference betweene the fewmet of the morning and that of the evenyng, bycause the fewmishings which an Harte maketh when he goeth to relief at night, are better disgested and moyster, than those which he maketh in the morning, bycause the Harte hath taken his rest all the day, and hath had time and ease to make perfect disgestion and fewmet, whereas contrarily it is seene in the fewmishyng which is made in the morning, bycause of the exercise without rest whiche he made in the night to go seeke his feede.”

Both Fouilloux and Turbervile provide sketches of fewmets, the better to educate a junior huntsman, who may one day have to present them to the Prince or chiefe (Fouilloux speaks of the king or lord: "presente ont leurs fumées au Roy, ou au Seigneur a qui ilz seront, les une après les autres, en racómptant chaseun de ce qu’il aura veu”). Turbervile copies Fouilloux's drawing almost exactly, but curiously arranges the turds top to bottom unlike Fouilloux's left to right presentation. (No doubt this reflects a fissure in the Jungian archetype of bathroom practices between the English and the French. Because the French helped us Americans obtain our freedom from the English, I have preferred the Frenchman's presentation. It also looked better in the layout. Besides, how often do you get a highbrow reason to show shit?)

The Formalities of the Chase

A large company would go on a hunt with a monarch or lord, with varying ranks reflected in the clothing of those allowed or required to attend. There were generally around ten stages to a chase, labeled as follows:

1. Unharbouring of the Game. This involved starting the deer running, generally begun by the huntsman sending out a “harbourer” to mark the locations where the deer and returning with some fewmets.
2. The Gathering. The harbourer returned to the waiting party and made his report. This was often done during a meal, and the harbourer would present the fewmets to the lord of the hunt or the most honored individual present. The hunters and the dogs gather in a field
3. Posting Relays. The pack did not all run together, but were stationed in small groups along the route the deer was expected to take. In a large hunt, such as a queen would go on, there would be six to 12 hounds at each relay, with at least three relays along the route.
4. Departure and Laying on the Pack. At this stage the company mounted horses. A scenting hound would be tethered to a tree where he could be brought should the pack go off the scent. Writers of the time disagree as to whether older or younger hounds should be released first, or whether there should be older dogs among the younger to keep them from going in wrong directions.
5. The Change. Pursuing the scent of a different animal than the one being sought was called a Change. It was believed that an intelligent deer could retrace his steps to throw the dogs off the scent and could perhaps cross the path of another deer which the hounds would then follow.
6. The Recheat. This was the procedure, sometimes conducted by taking the dogs on ever-widening circles, to get the hounds back on the correct scent.
7. The Game Exhausted. Various changes in the track and appearance of the game would indicate it had become exhausted, with its toes coming closer together, running into open spaces, and the hair bristling.
8. The Bay. The animal would stop running, but was still dangerous and could kill dogs coming near it or even attack a horse. The dogs should surround the stag and bay.
9. The Death. The huntsman finished the animal by piercing its neck with a knife or sword. The bowmen may have already shot arrows into the animal, but these generally would not kill it.
10. The Quarry. The hunting books describe the breaking of the deer. The forefoot of the game was presented to the most eminent person present.

Turbervile refers to the fewmets in the second stage as involving the droppings being presented on leaves. The harbourer or huntsman kneels in making the presentation, and likely explains as much as can be said regarding the animal that made them, an ability that would be tested when the animal was ultimately captured. Turbervile summarizes the presentation to the queen in a poem:

“Before the Queene, I come report to make
Then husht and peace, for noble Trystrams sake,
From out my horne, my fewmets fyrst I drawe,
And them present, on leaves, by hunters lawe;
And thus I say: my liege, behold and see
An Hart of Tenne, I hope he harbord bee.
Fir if you marke his fewmets every poynt,
You shall them finde, long, round, and well annoynt,
Knottie and great, withouten prickes or cares,
The moystnesse shewes, what venysone he beares.”

The most honored personage had the authority to choose between the possible prey based on the presentation:

"Afterwardes when all the huntsmen be come together, they shall make their sundry reports, and present their fewmyshings unto the Prince or master of game in the field, one after another, every man rehearsing what he hath seene. And when the Prince or other chiefe hath hard them and seene their fewmishings, he or she may then chose which of the Hartes he will hunt, and which he or she thinkes most likely to make him or hir best sport."

After the animal had been killed, one aspect of the Quarry stage was the presentation of the foot to the most eminent person present. Turbervile also describes the first cut as being reserved for this person, and shows the queen being presented with the knife:

“The deare being layd upon his backe, the Prince, chiefe, or such as they shall appoint, comes to it: and the chiefe huntsman (kneeling, if it be to a Prince) doth holde the Deare by the forefoote, whiles the Prince or chief, cut a flyt drawn alongst the brisket of the deare, somewhat lower than the brisket towards the belly. This is done to see the goodnesse of the flesh, and how thicke it is.”

Notice that no two of the queen's costumes are the same. This might support an argument that the cartoons were drawn from life (but I leave such questions to art historians).

Other Game

In addition to deer, Fouilloux and Turberville describe hunting of reindeer, wild goats, boar (which are carefully distinguished from domestic hogs), hare, cony (a type of rabbit), fox, badger (hunted with terriers), otter, wolf (including a discussion of werewolves, which eat man flesh), and bear. Towards the end of his book, Turbervile gives a unique account of coursing with greyhounds, a practice not held in as high an estimation in France as in England, and describes how wagers may be made in competitions.

Thanks to Richard Hawkins and Brian Duggan for sources, thoughts, and corrections.

Additional Sources: M. Thiebaux, The Medieval Chase (1967). Speculum, 42(2), 260-274; Queen Elizabeth I had a hunting lodge that is preserved by the City of London. For brief mention of the forest laws, which would have applied to the Queen's forests, see my piece on Robin Hood.