Drug dogs are trained to alert to the odor of narcotics. This means that a properly-trained drug dog may alert to the odor of narcotics without narcotics being present. This is problematic for many reasons, most importantly because the improper use of drug dogs may violate a citizen’s fourth amendment right when being used by police to search a car, person, or home.
At Berry Law, we have regularly review drug dog training records when individuals are stopped on the interstate with large amounts of marijuana, methamphetamines, cocaine, heroin, or even cash. Sometimes the dog alerts to the odor of narcotics, and narcotics are found in the vehicle. But there are times when the dog alerts and indicates to the odor of narcotics, but no drugs are found. Often, when we ask police officers whether this is a false alert, the answer given is usually “Well, the dog is trained to alert to the odor of narcotics, so it’s possible the odor of narcotics could have been present.” Then we ask the officer what he/she did to confirm that the odor of narcotics was present in the vehicle.
The answer we usually get is “Nothing.”
Upon deeper cross-examination about the use of ion scanners and other technology able to detect substances such as marijuana and cocaine in parts per million, police officers tell us they don’t use anything to confirm the odor of narcotics other than detection dogs. If law enforcement can test for the residual odor of narcotics by looking for drug debris or residue, why aren’t these tools used? The answer is likely because the technology may prove some drug dog alerts to be false. Police only need the alert and indication of a properly-trained dog to establish probable cause to search a vehicle. If police took the extra step of testing for the odor of narcotics by using an ion scanner or other device, it may disprove the dog’s reliability.
Alert & Indication
In some jurisdictions, alert and indication mean that the dog displayed a behavior consistent with the presence of narcotics. Before we go any further, we should probably clarify what we mean by alert and indication.
Alert. In Nebraska, alert and indication are part of a two-stage process. In stage one, the dog will alert by showing aggressive behavior indicating that the dog is interested in the area searched. The alert does not establish probable cause that the odor of narcotics is present, but it is a step required to reach the second stage, indication.
Indication. Indication is when the dog displays the behavior indication that drugs are present. If the dog alerts but does not indicate, then the dog’s behavior is not sufficient probable cause to search. In Nebraska, there are two types of drug dog indications: Active and passive.
Active indicators will begin to bark and scratch at the area where the odor of narcotics is strongest. Passive indicators will generally sit or display some other passive behavior in the area where the odor of narcotics is strongest, which is usually a seam in the vehicle along a door or the trunk.
In some cases, dogs alert but do not indicate. In other cases, the dogs alert but do not display the behavior required for an indication. For example, if the dog is trained to sit when it indicates, any other behavior is unacceptable. A dog trained to sit when it indicates does not indicate when it freezes or lays down. There can be only one trained behavior for indication.
While some law enforcement officers will claim that any passive behavior will qualify as indication, such claims defy logic and science. Either the dog did what it was supposed to do to indicate or it didn’t.
Rewarding the Dog
One of the problems with a court accepting multiple forms of indication as probable cause is that it lowers the standard for probable cause and encourages law enforcement to lower drug dog training standards.
Drug dogs are trained by getting rewarded every time they properly alert and indicate to the odor of narcotics. The reward is usually a dog toy, such as a Kong ball, or praise indicating that the dog was successful. If the trained indicating behavior is to sit when the odor of narcotics is found, but the dog is rewarded for lying or freezing, the dog becomes confused as to the standard.
The training methodology is simple. You are supposed to reward specific behavior. The dog becomes confused when the dog handler begins to reward other types of behavior. Eventually, the dog does whatever behavior it takes to get the reward. Failure to provide consistency in training ultimately leads to an unreliable drug dog.
Are Drug Dogs Reliable?
Not only has the United States Supreme Court found that a properly-trained drug dog is reliable, but science suggests it as well. However, the issue often isn’t the dog itself.
When drug dogs are certified, they’re usually certified as part of a team that includes a handler. One concern criminal defense lawyers have with drug dog handlers is that sometimes the drug dog will falsely indicate to the odor due to the behavior of the handler.
As discussed above, the way dogs are trained is they are rewarded for specific behaviors. Handlers can influence that behavior not only in the way they reward the dog, but also in the way they guide the dog and/or use the dog to search a vehicle or house. For example, if a drug dog handler runs the dog around a car two times before the dog indicates to the odor of narcotics, there is probably no issue. However, if the handler runs the dog around the car six or seven times, the handler is telling the dog that he or she wants it to alert and indicate. The dog knows that if it alerts and indicates, it will be given a reward. What do you think the dog will do?
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Conclusion
The best criminal defense lawyers are skeptics. Criminal defense lawyers at the top of their field continuously challenge forensic evidence. Prosecutors and law enforcement are continually looking for ways to develop better forensic evidence. As the methodologies change, so should the defense attorney’s challenge to that evidence.
When narcotics are found after a dog indicated the odor of narcotics, it doesn’t necessarily mean the dog properly alerted and indicated.
If you believe your car or home has been unlawfully searched due to a faulty drug dog sniff, please contact Berry Law.
