The other day I was working with a drug dog expert on a case dealing with a police drug stop on Interstate 80 in Lincoln, Nebraska. After having reviewed the video and the training records of the dog, the expert was able to provide me with a great deal of ammunition to attack the government’s case, specifically relating to whether the drug dog was properly trained and whether the drug dog actually identified the odor of narcotics.
During our conversation, I asked the expert about the “odor proof” bags in which the marijuana was stored and whether the odor proof bags worked. The expert told me that odor proof bags in a controlled setting do work and that he has tested them himself. Unfortunately, the argument that the dog could not identify narcotics behind odor proof bags seldom wins.
Odor Proof Bags in a Controlled Setting
The expert explained that he used laboratory precautions to put marijuana into the odor proof bags using rubber gloves, ensuring no contamination on the bags. The expert then put the odor proof bags filled with marijuana in a car and ran a drug dog around the car. The dog did not signal to an odor of marijuana. The expert replicated the experiment with other types of narcotics such as cocaine, methamphetamine and heroin and the dog did not signal either.
Odor Proof Bags in a Criminal Case
I informed the expert that often when I represent individuals traveling on the interstate that transport marijuana, methamphetamine or cocaine, the drugs are either heat sealed or placed in odor sealed bags, yet the drug dogs still respond to the order of narcotics. The expert explained that often manufacturers who advertise odor proof bags do not actually sell a product that is fully odor-proof. Moreover, it is very easy to contaminate a true odor-proof bad, thereby potentially compromising its purpose. Furthermore, individuals stopped on the interstate may have had other drugs or other paraphernalia in the vehicle in the past that could cause a drug dog to signal to the order of narcotics.
From a drug crimes criminal defense attorney’s perspective, could be made that the drug dog could not accurately signal to the order of narcotics because the substances were in an odor proof bag. Thus the dog was either improperly cued by the handler, the dog was generally unreliable, or the dog was trained to always signal to the odor of narcotics because the animal is rewarded every time they do so. Importantly, the dog is rewarded prior to law enforcement searching the vehicle. So, essentially the dog is rewarded for the behavior of indicating to the odor of narcotics when sniffing a car regardless of whether drugs, marijuana, or any other drug is actually found.
Drug Dogs and Detailing
In another discussion with the expert about whether the drug dogs are actually alerting to a narcotic or simply displaying behavior the officer wants to see so that they can be rewarded, we talked about a concept called detailing. Detailing is a” yes or no” sniff. The handler directs the dog to a specific location and the dog either signals to the odor of narcotics or it doesn’t. I have found through deposing and cross-examining some officers that not all certified drug dogs are able to detail.
On Interstate 80, it is common to see drug dogs walking around a vehicle for two or three laps before the dog actually alerts to the odor of narcotics. The expert explained to me that this is cause for concern because it may give the dog the impression that the handler is going to walk him around the car until the dog alerts or indicates. It is important to know whether a drug dog has the ability to detail. If not, this may create a question as to whether the dog is accurately alerting to the order of narcotics when simply walked around a vehicle.
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The Problem with Odor Proof Bags
The problem with odor proof bags is that they are ripe for contamination. Additionally, while an argument could be made that the drug dog was unreliable because it could not have smelled through the odor proof bags, a prosecutor could argue that the vehicle in which the drugs were traveling in may have been used to transport drugs in the past and may have contaminated the interior of the car.
Nebraska Drug Lawyers
Our team has defended hundreds of individuals charged with drug related offenses. We understand the winning and losing arguments in these cases and what you can realistically expect. If you want to challenge a drug dog search, unlawful arrest, and/or Fourth Amendment violation, contact Berry Law.
