“Will Duke jump in windows?”— Orchestrating Drug Dog’s Alert Caught on Dash Video

Utah Highway Patrol Trooper Brian Bairett stopped Sherida Felders for speeding on I-15 near Cedar City, Utah, on November 20, 2008.  She had two passengers in the car, Elijah Madyun, 17 years old, and Delarryon Hansend, 18 years old.  Felders gave Bairett her driver’s license and vehicle registration but did not have a copy of her insurance card.  

Bairett alleged that the three individuals in the car were nervous and that Felders would not maintain eye contact with him. He also observed an air freshener in the car.  (Some K-9 handlers call several air fresheners hanging from the rear-view mirror a “felony forest,” though a single freshener is not generally thought to raise suspicion.)  Bairett asked Felders the purpose of her trip.  He returned to his car with the documents but did not run any computer checks at that time. He wrote a speeding ticket.  All the events were being captured on Bairett’s dashboard video camera. 

Bairett returned to Felders’ vehicle and asked her to step out of it so he could explain the citation.  In a deposition, Bairett acknowledged that he did not routinely ask people to step out of their vehicles but he did so this time because because he had begun to suspect the people in the car were involved in criminal activity based on their nervousness, the air freshener, and the fact there was a Jesus license plate ring on the vehicle.  (Religious and divinity symbols are sometimes used by traffickers, and law enforcement training often involves mention of such symbols as a possible indicator of drug activity.)

Bairett explained the citation but did not give the license and vehicle registration back to Felders before asking a few more questions about her travel plans. After handing the documents back to Felders, he still continued questioning her, and alleged in his deposition that she repeatedly stretched, rubbed her face, covered her mouth, avoided eye contact, and moved away from him. He stated that he “was still just investigating to find out whether there was a crime,” but the court said that at this point Bairett had no articulable reasonable suspicion. 

Bairett then asked if he could talk to Felders’ passengers and she consented.  After doing so, Bairett returned to questioning Felders because of possible inconsistencies in what he had been told.  Felders had said the passengers were friends of her grandchildren, but the passengers said they were her cousins.  Felders had said her grandchildren were flying to Colorado but later said they lived there. Felders said she was returning on December 1^st, but the passengers said they were returning on Sunday, which Bairett took to mean November 23^rd, though it could have meant November 30^th.  None of these statements were necessarily inconsistent, though December 1^st was a Monday.

Felders began trying to explain the inconsistencies but Bairett said her story did not make sense.  He believed he had sufficient reasonable suspicion that Felders was transporting drugs and he asked her if she had cocaine in the vehicle.  She did not respond for seven seconds, then said “No.” (This, of course, could be explained if Felders was dumbstruck by what was being suggested and could not get her breath.)  Bairett asked about other types of drugs, and she said “No” to each.  Then he asked if he could search the car and she said he could not.  He informed her that he was detaining her until a K-9 unit arrived. 

Bairett called his sergeant and informed him of the situation.  He told the sergeant, “If I can’t get a dog, I’ll just have to let her go.”  He began to perform computer checks for the first time, considerably later than would usually be standard procedure, and found that Felders had a charge of receiving stolen property and battery on a police officer with a firearm.  No prior drug charges or convictions came up in the computer checks.  (Computer checks are sometimes delayed to prolong a stop, which may have been the case here.)  The prior charge could explain Felders’ nervousness, though the court did not mention this possibility. 

While Bairett was still waiting for the K-9 unit, Deputy Wade Lee arrived.  Bairett “rehearsed for that officer all that had occurred during the stop,” according to the court.  “Rehearsed” is a curious verb.  Why not “described?”  Did it appear to the court that Bairett was trying to line up his arguments for a search?  Bairett said to Lee:  “There’s so much—I’m to the point right now where it’s probable cause to get in that vehicle, whether she likes it or not.”  This is directly contrary to what Bairett had just told his supervisor, so it’s not clear whom he was bullshitting. Both officers told each other that when someone refuses consent, it is because “there’s something in there.” Lee said that “most people think it’s fun” to have their car searched, and Bairett agreed.  As to this interchange, the court observed:

“That two officers would opine to the contrary and believe that people actually enjoy being detained and having their vehicles and belongings searched makes the court question the training and judgment of these officers.”

Dispatch informed Bairett that Deputy Malcom would be coming with his drug dog, Duke.  Bairett asked Deputy Lee, who he may have thought knew Malcom better than he did, if Duke would jump in the vehicle through the windows, noting that “the windows are open.”  Bairett may have been asking Lee whether Malcom had trained his dog to jump through open windows, as demonstrated in the two training pictures included in a prior blog.  As we noted in that blog, jumping in windows is not “instinctual” with dogs.  When they do it automatically, it is because they have been trained to go through anything that looks like a car window (as many have) or because they are following a scent, not because they have an irresistible urge to go through narrow passages into dark spaces. 

Unfortunately, this poorly considered terminology has recently been adopted by the Sixth Circuit in U.S. v. Sharp, 2012 WL 3047338 (6^th Cir. 2012) (“[A] trained canine’s sniff inside of a car after instinctively jumping into the car is not a search that violates the Fourth Amendment as long as the police did not encourage or facilitate the dog’s jump.")  The likely reason for Bairett’s question to Lee about whether Duke would jump through windows was Bairett’s hope that the dog had been well-trained to go through windows.  The fact that he made such an effort to keep the doors open, as will be described below, probably indicates that he was not satisfied that there had been this kind of training. 

Deputy Malcom arrived about 30 minutes after Bairett first called for a K-9 unit.  Malcom told Bairett to remove the two passengers from the vehicle.  Bairett replied, “Yeah, that’s what I was planning on doing.  When they get out of the car, I’ll leave the doors open.”  In his Incident Report, however, Bairett stated that the passengers left the doors open.  In his deposition, he said he did not leave the doors open.  The videotape, according to the court, showed “that as Mr. Madyun exited through the front passenger door, Trooper Bairett put his hand on the door and opened it wider. Dash Cam Video, 9:44:58-9:45:00.  Next, it shows that Trooper Bairett stepped towards the rear passenger door when it opened.  As Mr. Hansend exited, he moved to close the door. Trooper Bairett, however, put his hand on the door to stop it from being closed.  Dash Cam Video, 9:45:00."  At the very least, Bairett seems to have had memory problems. The court's analysis suggests that at some point he may have perjury problems. 

“Ms. Felders was then directed to remove her Chihuahua from the back of the vehicle [by which officer is not stated].  She lifted the back window hatch to do so and left that open.  Consequently, the back hatch and front and rear passenger doors were all open when Duke was deployed.” 

What happened with the deployment of Duke is described by the court as follows (deleting video time stamps and deposition and affidavit references):

“Duke first went to the back hatch, lifted his head up, and sniffed at the open window; but Deputy Malcom appeared then to pull on Duke's leash briefly to guide him away from the back of the vehicle. Deputy Malcom next backed towards the rear passenger door that was open, keeping Duke between him and the vehicle. Upon arriving at the passenger door, Duke jumped into the vehicle.”

What the video shows would be informative to handlers because forcing a dog to go forward—many dogs will not stop indefinitely and do not like to go backward against the position of the handler—may indicate the dog was blocked and that there was cueing at this stage of the sniff.  The court continues:

“The total time from deployment until Duke entered the vehicle was seven seconds. In those seven seconds, Duke spent about four seconds approaching the back hatch window and sniffing it. Deputy Malcom testified at his deposition that Duke did not alert during that time. In the next three seconds, however, Deputy Malcom attested that Duke did alert because Duke ‘began breathing quickly and deeply, which is how he acts when he alerts to a drug odor.’ Additionally, he jumped into the vehicle, and when he entered the vehicle that constituted part of his alert.”

Malcom provided the court with an affidavit from an expert witness, Wendell Nope, the K-9 Training Supervisor at the Peace Officer Standards and Training Division of the Utah Department of Public Safety.  Nope’s affidavit stated that he had reviewed the dash cam video and stated that Duke “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.” 

Describing lifting the head, breathing deeply, and entering vehicle as an alert would not be acceptable in any reputable training regimen with which the authors are familiar. Duke’s first entry lasted about two minutes.  Malcom removed him from the vehicle but allowed him to re-enter it two more times.  According to the court:

“After searching the vehicle for approximately five minutes, Duke indicated by sitting and focusing intently by the driver's side door. The three officers then spent almost an hour searching the vehicle and its contents, including removing paneling to search behind it. They found no illegal drugs or other contraband; and therefore, had to end the plaintiffs' detention. The entire stop lasted approximately two hours.”

Lawsuit

Felders and her passengers sued, advancing three causes of action: unlawful seizure under the Fourth Amendment, unlawful search under the Fourth Amendment, and unlawful racial profiling under the Equal Protection Clause of the Fourteenth Amendment.

Court’s Analysis

The federal district court for Utah held that the initial traffic stop for speeding was appropriate, but the air freshener, Jesus license plate ring, and nervousness “fall short of reasonable suspicion of criminal activity.”  When Felders declined to allow Bairett to search the vehicle, the encounter was no longer consensual and Bairett needed reasonable suspicion to prolong the detention. 

Analyzing Bairett's argument that he had reasonable suspicion, the court said that Bairett had found the following suspicious: (1) the air freshener, (2) Felders’ nervousness, (3) inconsistent answers of the occupants of the car concerning travel plans, and (4) the delay in Felders’ response to the question about whether she was carrying cocaine.  There were weaknesses in several of these items as grounds for reasonable suspicion.  Under Tenth Circuit precedent, “nervousness is a common and natural reaction to an interaction with a police officer,” so “unless an individual’s display of nervousness is unusually severe or persistent, or accompanied by other, more probative grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists.”  U.S. v. Kitchell, 653 F.3d 1206 (10^th Cir. 2011).  Based on the dash cam video, the court concluded that it did “not appear that Ms. Felders’ nervousness was unusually severe or persistent.”

Some of the inconsistencies in stated relationships and travel plans, according to the court, “may have arisen due to cultural differences and miscommunication between the parties,” but it could not be stated for certain that this explained everything. 

Viewing the totality of the circumstances, the court concluded that Bairett had reasonable suspicion sufficient to continue the detention and that the seizure was not in violation of the Fourth Amendment. 

Duke’s Sniff of the Vehicle

The court moved on to the question of the legality of the search. Probable cause is not needed to conduct a canine sniff of a vehicle’s exterior.  Under Tenth Circuit precedent, however, officers may not “rely on a dog’s alert if they open part of the vehicle so the dog can enter or if they encourage the dog to enter.”  U.S. v. Ayala, 446 Fed.Appx. 78 (10^th Cir. 2011).  The court found that “Trooper Bairett showed an express intent to facilitate Duke’s entry into the vehicle.”  Bairett argued that he could not have facilitated the dog’s entry into the Jeep because he was not the dog handler, but the court noted that facilitation “can occur by means other than directly handling the dog.”  For this, the court cited U.S. v. Winningham, 140 F.3d 1328 (10^th Cir. 1998), where a motion to suppress was granted when a New Mexico Border Patrol agent left a car door open while he was searching for illegal aliens. A drug dog did not clearly alert outside the van, though the handler said he had observed a noticeable difference in the dog’s behavior near the van.  The dog jumped inside the van, where it alerted at a rear vent. Inside the vent, the agents found 50 kilograms of marijuana.

The court determined that Trooper Bairett was not entitled to qualified immunity on the plaintiffs’ claim of improper search:

“Indeed, from the dash cam video, it is evident that Trooper Bairett intentionally facilitated Duke's entry into the vehicle and no reasonable fact finder could conclude otherwise. Thus, if probable cause was not established before Duke entered the vehicle, Trooper Bairett violated the plaintiffs' constitutional right to be free from unreasonable search. As discussed below, a material issue of fact exists as to whether Duke alerted before entering the vehicle. Whether Trooper Bairett violated the plaintiffs' constitutional right cannot therefore be resolved on summary judgment.”

Given the language we’ve italicized, Bairett’s counsel may want to consider making a settlement offer soon.

Vertical Collective Knowledge

Deputy Malcom argued that he had authority to search the interior of the vehicle because Trooper Bairett had told him, “to me, I’ve got probable cause to search the vehicle without her permission or not.”  Malcom argued that he could rely on this under the collective knowledge doctrine, but the court noted that under the doctrine “the second officer is justified only to the extent the first officer actually had the probable cause or reasonable suspicion asserted.”  The court said that Bairett may have had reasonable suspicion, but “it did not rise to the level of establishing a fair probability that the vehicle contained contraband,” and Bairett “did not have probable cause to search the vehicle.” 

Bairett’s supervisor had not indicated to Bairett that there was probable cause, though he wrote in his report that if Bairett felt he had enough suspicion, he could wait for a drug dog to perform a sniff.  Therefore, there was no vertical collective knowledge upwards either.  The court said that the vertical collective knowledge doctrine did not apply.

Did Handler Observe Enough on His Own to Have Probable Cause?

The federal district court considered whether Deputy Malcom’s own observations gave him enough information to have probable cause to search the vehicle.  Malcom did notice some indicators that Bairett had not:

“[A] single key was in the ignition rather than a key ring with several keys, they were traveling with a dog which is often believed by drug runners to mask the scent of drug odors, the time that they were traveling began [at] midnight, air freshener by the center console, inconsistent travel plans of passengers, a Jesus license plate bracket, relationship of children, body language, and lying to an officer or story not rehearsed.”

The court questioned how Malcom could have known about the single key before Duke entered the vehicle because Bairett had never mentioned it.  The dash cam video suggested that Malcom could have only known this after Duke entered the vehicle.  The court also stated that the information about midnight travel was not communicated to Malcom prior to his dog entering the vehicle.  The court acknowledged that Malcom could have known about the presence of the Chihuahua before Duke entered the vehicle, but that this “did not alter the court’s conclusion.” 

Nor was Malcom immunized from the unlawful search claim by good faith reliance on what Bairett had told him because Bairett had explained the facts upon which he believed there was probable cause and “Deputy Malcom was in a position to judge for himself whether there was probable cause to search the vehicle.” 

Facilitating Dog’s Entry into Vehicle

Bairett had told Malcom that he would get the passengers out of the car and that when he did so, “I’ll leave the doors open.”  Malcom did not respond and stated in his affidavit that due to traffic noise he did not hear Bairett’s comment or observe Bairett opening the doors.  The court said that there was an issue of fact here for the jury to determine and summary judgment could not be granted.

Malcom also argued that Duke’s entry into the vehicle was proper because he alerted before entering the vehicle.  The court summarized a prior case where a dog’s behavior had changed outside a vehicle and the dog had tried to jump into the vehicle, but was stopped by the handler.  In U.S. v. Parada, 577 F.3d 1275 (10^th Cir. 2009), the officer “testified that the dog’s body stiffened and his breathing became deeper and more rapid, signaling that he had discovered an odor he was trained to detect.”  Because the officer prevented the dog’s entry into the vehicle, the dog never indicated or pinpointed the source of the odor.”  The Tenth Circuit held that this was enough to provide probable cause to search the vehicle. 

Here, the court said that although Malcom contended that Duke “began breathing quickly and deeply” before jumping in the vehicle, which was part of the alert, “the dash cam video creates a material issue of fact as to whether Duke actually alerted before entering the vehicle. The manner in which Deputy Malcom handled Duke and the three seconds, a very short period of time, between deployment and entry do not readily confirm that an alert occurred.” 

Wendell Nope, the defense expert, submitted an affidavit stating the Duke had “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.”  The court observed that the dash cam video only shows Duke lifting his head up “when he sniffed at the rear window of the vehicle.”  At this point, Malcom said that Duke had not yet alerted.  The opinion continues:

“Because Deputy Malcom has more experience with this particular dog than Mr. Nope, it is unclear why Mr. Nope believes this constituted an alert. To the extent Duke raised his head at some other point, it would be best for Mr. Nope to point out that nuance to a jury. Ultimately, however, Mr. Nope can be considered only an expert in proper procedures for training and handling drug dogs. He is not an expert in perceiving facts, nor an expert on how this particular dog reacts. If Mr. Nope was able to hear Duke breathing deeply on the video, then so too should the jury. Unfortunately, that sound is not evident on the video supplied to the court, so it cannot resolve this disputed issue.”

More reason to settle: your expert has lost credibility with the court. The court also stated that “Deputy Malcom and Mr. Nope are put on notice … that they will not be permitted to testify that a dog’s jump into a vehicle constitutes an alert.  Probable cause must be established before entry, not by an entry.”

Duke inside the Vehicle

Although the violation of rights involved Duke’s entry into the vehicle, a footnote mentions that while Duke was focusing on the center console, Malcom removed some beef jerky that was near the console “to make sure that wasn’t what he was hitting on….”  In his affidavit, Malcom said that he removed the beef jerky “to prevent Duke from putting his nose in the Plaintiff’s food and spoiling it.  I did not think or believe that Duke would ‘alert’ to beef jerky.  In fact he is trained not to give an alert or indication to any type of food.”  The court noted that the affidavit statement “changes the motivation for why Deputy Malcom acted,” and meant that “a fact finder may question the credibility of Deputy Malcom’s two affidavits.” 

Cueing?

Nope’s affidavit stated that Malcom had handled Duke in conformance with established standards, keeping the leash slack so as not to cue Duke improperly.  The court noted that “cueing may occur by means other than a taut leash.  Because the dash cam video shows Deputy Malcom pulling Duke away from the rear window and keeping him in a close space between him and the vehicle as he backed towards the passenger door, a material issue of fact exists regarding whether improper cuing occurred.”

Another footnote mentions that the plaintiffs also had an expert whose report addressed Malcom’s handling of Duke and concluded that Duke had been handled improperly. The court did not name the witness, make a decision on whether this witness could be qualified as an expert, or otherwise refer to the conclusions of the expert’s report or a deposition that was apparently conducted of this potential witness. 

Conclusion

The federal district court concluded that “existing precedent was sufficient to put Trooper Bairett and Deputy Malcom on notice that facilitating a drug dog’s entry into a vehicle can constitute an illegal search.”  The court is specific about Bairett intentionally orchestrating the drug dog’s entry into the vehicle and thus its intrusion into the privacy of Felders, but states that “Malcom may have participated as well.”  Therefore, the court denied qualified immunity to Bairett and Malcom. 

The court rejected the racial profiling claims because the plaintiffs failed to present clear evidence to rebut the presumption that Bairett did not violate their Equal Protection rights.  Felders alleged that Bairett had mocked her African-American accent.  The court agreed the dash cam video showed that Bairett used a mocking tone towards Felders, but said he could have been exaggerating and imitating a woman’s voice.  Either way, it is apparent that Bairett could use some sensitivity training, as well as some instruction in the legal significance of reasonable suspicion and probable cause. Usually one expects the driver to forget there is a dash cam video, or not even realize it is there, but here it appears to have been the officer who forgot. 

Felders v. Bairett, 885 F.Supp.2d 1191 (2012)

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

Justice Souter, Not as Retired as We Thought, Casts Absentee Ballot in Harris

Associate Justice David Souter wrote one of the most praised, and pilloried, dissents to a U.S. Supreme Court canine decision ever written, noting in Illinois v. Caballes, 543 U.S. 405 (2005), that the “infallible dog is … a creature of legal fiction.”  His views on the two canine cases in the fall docket of the Supreme Court, Jardines (Docket No. 11-564) and Harris (Docket No. 11-817), would be very interesting.  In Harris, the Supreme Court will consider whether establishing probable cause for a vehicle search requires that the police present complete field records for a dog, not just training and certification records.  Souter noted that training did not overcome fallibility in his Caballes dissent, but he did not elaborate on the issue of training specifically.  He would have had a chance to do so in Harris, but it seemed that his retirement from the Supreme Court in 2009 consigned his perspectives to legal history. 

Not so fast!  By special designation to the First Circuit Court of Appeals, Justice Souter has issued a decision on a matter involving a drug dog in Massachusetts.  Although he makes no specific reference to Harris, his opinion in the First Circuit case, U.S. v. Grupee, seems to tell us something about what he would say if he were still a member the high court.  What he has written in Grupee can hardly be considered groundbreaking, constrained as he was by precedent, but it is to be hoped that his former colleagues on the high court will again consider his cautions in Caballes and perhaps pick up on his dictum in Grupee. 

Drug Investigation in New Bedford

In 2008, the Southeastern Massachusetts Gang Task Force was investigating street gangs in New Bedford, Massachusetts, and sought a warrant to arrest Desmond Rodriques for drug trafficking.  In executing the warrant at the residence where Rondriques was living, they found other individuals who lived in the same house, including Grupee, as well as guns, drugs, and drug paraphernalia.  A drug detection dog that had come along alerted to a black Infiniti parked in the driveway.  The officers paused and applied for two additional warrants, one to search the house for firearms and drugs, and the other to search the car. The additional warrants were issued.  In searching the car, they found a bag of cocaine and 9 millimeter ammunition. While the initial search of Grupee’s room had yielded papers and firearms, a second search uncovered drugs and records of drug sales.

Grupee argued that the warrant to search the Infiniti was based on insufficient information about the drug dog because, in Justice Souter’s words, “the only information given to the magistrate about the dog’s capacity to alert reliably and without excessive false positives was this laconic statement that the dog was a Massachusetts State Police drug detection dog.”  Grupee noted that the affidavit said nothing about State Police standards for training drug-sniffing dogs or about the particular dog’s success and error rate. 

The federal district court for the District Court of Massachusetts denied Grupee’s motion to suppress, and Grupee appealed.

First Circuit Review

Sitting by designation on the First Circuit, and writing that court’s decision in the matter, Souter said that Grupee’s point about the lack of information concerning the dog was not fatal to the warrant, but acknowledged that there was nothing "captious about it."  Captious is a curious adjective for the situation.  Apparently this is meant to say that such an objection is not trivial or an overly strained effort to look for faults.  In effect, then, Grupee’s point has real substance. 

Souter continues:

“The reasonableness of relying on the behavior of a police dog depends on what one knows about the dog and the person who handles it, see United States v. Race, 529 F.2d 12, 14 (1^st Cir. 1976); United States v. Berry, 90 F.3d 148, 153 (6^th Cir. 1996), and the police can provide this sort of information in a readily available resume of general certification standards and particular performance statistics, dog by dog, to be attached to a warrant application on a moment’s notice.  Here, in contrast, the magistrate was told only that a dog was used by the Massachusetts State Police to sniff out narcotics.” (emphasis added)

First, let’s look at the cases summarily cited in the passage.  In U.S. v. Race, the dog in question had undergone “intensive training in detecting drugs … had at least 4 hours a week of follow-up training since then, as well as work experience, and … strong reaction he had to crates was one that in the past had invariably indicated the presence of marijuana, hashish, heroin or cocaine.”  Thus, the First Circuit had as far back as 36 years ago been concerned with both the dog’s training and field performance, even if not in a statistical manner. 

In the Sixth Circuit case, U.S. v. Berry, an affidavit stating that the dog and handler “have both been trained, qualified in the processes and procedures required to properly conduct [narcotics] investigations” was “sufficient to establish training and reliability of the drug-detecting dog.”  Also, the “affidavit’s reference to the dog as a ‘drug sniffing or drug detection dog’ reasonably implied that the dog was a ‘trained narcotics dog.’”  It was for the latter implication that Souter mentions this case, as can be seen from what he says next about the dog in Grupee:

“But parsimonious though this disclosure was, we think it passes muster under existing circuit precedent on searches authorized by a warrant, which holds that describing a drug detection dog as ‘trained’ and in the company of a drug detection agent is sufficient to allow a magistrate ‘reasonably [to] infer’ that a trained law enforcement dog has ‘attained a high degree of proficiency in detecting the scent of narcotics.’”  Here Souter quotes another 1976 case, U.S. v. Meyer, 536 F.2d 963 (1^st Cir. 1976), where the First Circuit had stated:

“From the record it is evident that affiant was an experienced DEA agent and that the dog had been ‘trained’ and used in drug investigations. Thus the magistrate could reasonably infer that the ‘trained dog’ had attained a high degree of proficiency in detecting the scent of narcotics.”

Souter acknowledges that the affidavit in Grupee had not stated that the dog was trained, as the affidavit in Meyer had, but he brushes this aside:

“But ‘upon a common sense and realistic reading,’ an affidavit by a state police officer on the scene of a drug raid, attesting that the Massachusetts State Police is the dog’s ‘employer’ (as Grupee puts it), amounts to the same showing of reliability accepted in Meyer."

Souter also mentions that there was other evidence by the time the additional warrants were issued besides the drug dog’s alert.  In this of course he is correct, and there is no doubt that the First Circuit reached the correct decision in affirming the federal district court of Massachusetts.  The warrant was properly issued.     

Take a Second Look at Souter’s Dictum

Let us return to Souter’s discussion of the canine issues.  In his description of Grupee’s objection concerning the lack of evidence that the dog could alert reliably and without excessive false positives, Souter notes that the only information available to the magistrate was a “laconic statement that the dog was a Massachusetts State Police drug detection dog.”  Laconic is another curious adjective, meaning terse, sparing and pithy, suggesting that a person not of Spartan disposition would probably say more.

Souter continues after his reference to Race and Berry:

“[T]he police can provide this sort of information [State Police standards for training drug-sniffing dogs and the particular dog’s success and error rate] in a readily available resume of general certification standards and particular performance statistics, dog by dog, to be attached to a warrant application on a moment’s notice.”

Though dictum in Grupee, it is not hard to see that this could be the basis of an opinion, even a decision, in Harris.  Souter then says, as we have already noted: “Here, in contrast, the magistrate was told only that a dog was used by the Massachusetts State Police to sniff out narcotics.”  This is certainly what the State of Florida and their supporting amici are arguing is sufficient in Harris.  It was sufficient in Grupee, but in this case Souter was speaking as a member of the First Circuit and was apparently satisfied with by its often ancient precedent, at least where there were other reasons besides the dog for issuing the warrant.  

Conclusion

It might be argued that Justice Souter did not have Harris in mind at all.  But then, one could also argue that the moon is made of green cheese. 

U.S. v. Grupee, Docket No. 11-1291 (1^st Cir., June 20, 2012)

This piece was written by John Ensminger and L.E. Papet.  For a discussion of Harris and Jardines, see our analysis in the New York Law Journal.  All the canine cases cited in Grupee are discussed in broader contexts in Police and Military Dogs. 

Service Dog Can’t Ride in Ambulance with Master, but Should Be Able to Travel in Police Car

On September 29, 2009, Cecilia Nicholas was at her home in Binghamton, New York, when the flame of her gas fireplace went out.  She saw a New York State Electric and Gas vehicle parked in front of her house and a NYSEG employee in her driveway and suspected he had shut off her gas.  She opened the door and asked him to turn the gas back on, but he said that was not part of his job. He only turned gas off.  She asked him to call the police, which he did. 

Nicholas stood beside the NYSEG vehicle waiting for the police to arrive.  After about 20 minutes she became cold, and since the engine of the vehicle was running, she climbed onto its hood to keep warm.  When the police arrived, they determined that Nicholas was refusing to let the NYSEG vehicle leave.  Officer Charles Harder of the Binghamton Police Department began to remove her from the hood of the vehicle.  She asked him to stop because he was hurting her and she had multiple sclerosis. 

Accounts of how Nicholas got to the front steps of her house differ, but while she was sitting on the stoop Officer Harder told her she was out of control and would be taken to Binghamton General Hospital’s Comprehensive Psychiatric Emergency Program Unit for evaluation.  Nicholas asked if she could first tend to her dog, use the bathroom, take medication, and lock up her house, and the officers agreed. 

After Nicholas performed her tasks, she asked the officers (a second, Officer Mooney, had now arrived) to let her dog accompany her to the hospital because he was a service dog.  The officers refused and after some more interactions that are described differently by Nicholas and the police, Nicholas was handcuffed.  Officer Mooney called an ambulance because Nicholas complained of chest pains.  Her handcuffs were removed after about four minutes. 

When the ambulance arrived, Officer Harder told the emergency personnel to take her to “behavioral” at General Hospital.  At the hospital, personal in the Psychiatric Emergency Unit interviewed Nicholas, determined she was not in need of psychiatric services, and released her. 

Lawsuit

Nicholas filed a lawsuit in December 2010, asserting 17 causes of action, including false arrest, illegal search without a warrant, excessive force, violation of free speech, intentional infliction of emotional distress, battery, abuse of process, defamation, and other claims, and more were added by an amended complaint. 

The claims that will be discussed here concern Nicholas’s service dog.  Nicholas alleged that she was discriminated against under the Americans with Disabilities Act by being deprived of her service dog.  The City argued that the ADA claim should be dismissed because Nicholas had failed to demonstrate that her dog met the ADA definition of a service dog.  Nicholas submitted a brochure of the New York State Attorney General’s Office, Service Animals; Frequently Asked Questions, which she noted does not require that a dog be specially trained by a recognized or certified training program to be a service dog under federal and state disability laws. 

The federal district court stated that “an arrest or seizure of an individual, including post arrest transportation and investigation, is a ‘service, activity, or benefit’ of a police department and is thus covered under the ADA.”  To established liability in the context of an arrest or seizure, the court said that Nicholas had to establish a wrongful arrest, and that “the officers failed to provide a reasonable accommodation during the course of the investigation or arrest, causing her to suffer greater injury or indignity than other arrestees.”  For this proposition the court cited Gorman v. Bartch, 152 F.3d 907 (8^th Cir. 1998) where a paraplegic arrestee was able to establish an ADA violation after suffering injuries while being transported to jail in a van not equipped for wheelchair transport. 

The court determined that Nicholas was a qualified individual with a disability and that the City was subject to the requirements of the ADA.  “Here, Plaintiff suffers from multiple sclerosis, an autoimmune disease that affects the brain and spinal cord.  She requires help performing daily tasks such as sitting and reaching.”  The court also rejected the City’s argument that Nicholas’s dog was not a service dog:

“Under the ADA, a service animal is defined as ‘any animal individually trained to do work or perform tasks for the benefit of an individual with a disability.’ 28 C.F.R § 36.104. The work or tasks performed by a service animal must be directly related to the individual's disability…. Examples of tasks include retrieving items such as medicine, or the telephone, and providing physical support and assistance with balance and stability…. Plaintiff's dog meets this definition because she personally trained her dog to help her pick up things off the floor, assist her when she gets out of chairs, and provide support when she leans on him when she feels unbalanced.”

Thus, the court said that “Plaintiff’s dog qualifies as a service dog under the ADA.” The dog appears to have been a mobility impairment animal.  The problem with Nicholas’s ADA claim concerned her assertion that she was denied a reasonable accommodation by not being allowed to be accompanied by her service animal to the hospital.  The court said however, that being deprived of the accompaniment of her service dog did not cause Nicholas “to suffer any harmful consequences.” 

Nicholas also alleged that her rights under New York’s Civil Rights Law and Executive Law were violated by the officers in their refusal to let her keep her service dog in her custody.  The defendant officers and City argued that Nicholas did not have a service dog within the meaning of either state statute.  The court summarized the Civil Rights Law and cases concerning several medical environments where it has been held not to apply:

“New York Civil Rights Law Art. 4–B § 47–B states: ‘Persons with a disability accompanied by ... service dogs shall be guaranteed the right to have such dogs in their immediate custody while exercising any of the rights and privileges set forth in this article.’ N.Y. Civ. Rights Law Art. 4b § 47(b). The rights and privileges referred to are the right to obtain and maintain employment, and the right to equal use and enjoyment of any public facility…. The New York courts have excluded from the definition of public facility those areas where the general public are customarily not invited or permitted. Cf. Albert v. Solimon, 252 A.D.2d 139,146 684 N.Y.S.2d 375, 380 (1998) (Examination room of a doctors office was not a 'public facility,' and the physician did not discriminate when he ordered that the service dog leave the examination room); Perino v. St. Vincent's Medical Center of Staten Island, 132 Misc.2d 20, 23 502 N.Y.S.2d 921, 923 (N.Y.Sup.Ct.1986) (Delivery room and labor room of a hospital were not ‘public facilities,’ and the presence of the father's service dog would present an unacceptable danger to expecting mother, the physicians, and nurses).”

The court said that an emergency vehicle was not a public place, just as a hospital room was not. The court noted that it was not clear at first that Nicholas would be transported in an ambulance.  After she was handcuffed, it appeared at first she might be transported in a police car.  “As such, Plaintiff did not have the right to have her service dog in her immediate custody and her Civil Rights Law claim fails as a matter of law.”

With respect to the Executive Law, the court dismissed this claim in a single paragraph:

“With respect to the New York Human Rights Law, N.Y. Exec. Law § 296(14), Plaintiff's claim also fails. This law states: ‘it shall be an unlawful discriminatory practice for any person engaged in an activity covered by this section to discriminate against ... a person with a disability on the basis of his or her use of a service dog.’ N.Y. Exec. Law. § 296(14) (2010). This statute defines service dog more narrowly than it is defined under the federal ADA statute. It defines service dog as ‘any dog that is trained to work or perform specific tasks for the benefit of a person with a disability by a recognized service dog training center or professional service dog trainer ...’. Id. at § 292(33). Because Plaintiff has admitted her dog has not been professionally trained, this claim is dismissed.”

My Analysis

The court determined that Nicholas did not have the right to have a service dog that satisfies ADA requirements in an ambulance, correctly analogizing the interior of an ambulance to an emergency room or other medical location where having a dog, even a service dog, could pose health risks.  It is known, for instance, that MRSA can be found on the paws of therapy dogs moving through hospitals.  A hospital or ambulance operator might make an exception even where sterilized equipment is in use, but should not be required to do so under the ADA. (See Service and Therapy Dogs in American Society, Chapter 13: Animals in Healthcare Facilities.)

I bring a therapy dog to a hospital.  I am not generally permitted to bring the dog into the emergency room, but if requested by a family for a child, under hospital policy I can do so if the emergency room personnel make certain preparations in advance.  It has happened only once in my four years of going to the hospital with Chloe.  The same sort of accommodation might be made for a service dog, though that is also uncommon. 

I am more concerned with the court’s dictum that a person would not be entitled to bring a service dog—at least in New York State—into a police car.  Here there are no substantial medical considerations.  I suspect that the New York definition of a service dog for this purpose could be challenged under the ADA, and that a self-trained service animal should qualify for receipt of state and local governmental services.  (See, e.g., 28 CFR 35.136, 75 Fed. Reg. 56164 (September 15, 2010) applying ADA to state and local governmental services and defining service animal as “individually trained” without requiring any specific type of trainer or excluding the individual using the dog from being its trainer.) Of course, an animal that was out of control or not housebroken could be excluded, as the federal rules allow. Although the police might argue that allowing the dog in the back of a police car would be a fundamental alteration—e.g. because prisoners with allergies are sometimes transported in police cars—I do not think that this would make a reasonable accommodation impractical.     

It must be acknowledged, however, that at the time of the incident giving rise to these claims, final regulations had not been issued by the Department of Justice for state and local governmental situations.  Thus, if a case arose now where a self-trained service dog was denied access to a police car with its master, I believe a strong claim for a reasonable accommodation to bring the dog in the car could be mounted. 

Nicholas v. City of Binghamton, New York, 2012 WL 3261409 (N.D.N.Y. 2012).  

Recent Publications on Cancer Screening, Cueing, and the Fall Supreme Court Docket

In a paper published in the Journal of Veterinary Behavior, a team headed by Marta Walczak and Tadeusz Jezierski of the Polish Academy of Sciences, and which included me, studied various issues in the training of dogs to detect cancers—specifically breast cancer, melanoma, and lung cancer.  Training was divided into three phases, but each phase was more difficult and the percentage of correct indications tended to decrease as training progressed.  The dogs in the study were divided into two age groups, a six-month old group and a 20-month old group.   

Although younger dogs performed well at the beginning of training, they demonstrated a decrease in willingness to sniff odor samples and performed so unsatisfactorily in the final phase of training that none of them met the criteria for moving to the working phase. The significance of training issues in developing dogs for clinical uses is discussed. Walczak, M., Jezierski, T., Gorecka-Bruzda, A., Sobczyniska, M., and Ensminger, J. (September 2012). Impact of Individual Training Parameters and Manner of Taking Breath Odor Samples on the Reliability of Canines as Cancer Screeners. JVEB,7, 283-294. 

L.E. Papet and I continue to pursue our legal analysis of cueing and probable cause in an article that is posted on the Animal Legal and Historical Center of the Michigan State University College of Law and which we update periodically as new developments occur.  An article we wrote for Deputy and Court Officer on steps law enforcement canine handlers can take to prevent cueing, and the resultant risk of getting canine evidence thrown out by a court, is now accessible. The article includes pictures that demonstrate how cueing may be detected by an observer. 

The U.S. Supreme Court is scheduled to hear two police canine cases, Jardines and Harris.  An article I wrote with L.E. Papet on the issues presented by those cases, U.S. Supreme Court to Hear Two Police Canine Cases in Fall Term, has appeared in the New York Law Journal and the website of the Daily Business Review, and is available to subscribers of the Journal and the National Law Journal, as well as through law and other library access points.