Sometime in late 1980 I was representing a man found not guilty by reason of insanity for hacking at several people with a machete in a shopping mall. Each side had retained a psychiatrist for expert testimony on the issue of the level of security appropriate for the facility in which he would be placed. After becoming more and more annoyed with the direction of the prosecutor�s interrogation of his own expert, despite overruling most of my objections, the judge called both counsel into chambers.
Standing before the judge's desk, we both knew that at least one of us, perhaps both, was about to take some heat. This was obvious because the judge kept himself, and us, standing.
�Money talks, bullshit walks,� he said, looking first at me, then at my opponent.
For anyone not politically aware in 1980, the expression was coined by Angelo Erichetti, once Mayor of Camden, New Jersey, during his prosecution in the ABSCAM (a contraction of �Abdul scam�) case where FBI agents posed as employees of a non-existent sheikh and got various government officials, including Erichetti, to take money in exchange for favors. Erichetti was sentenced to eight years for his involvement.
We were in a courthouse in New Jersey, where Erichetti�s failings still created raw emotions in many politicians who felt his taint had spread to them, but neither the prosecutor nor I thought we were going to have a conversation about Angelo Erichetti or his colorful language.
�At least Ensminger�s expert doesn�t sound like he memorized his brief. Can your psychiatrist think for himself?�
The prosecutor cleared his throat. �Well, my brief probably reflects his thinking more than the other way around.�
�Even the legal terms? He doesn�t know what they mean, but he�s putting them in every chance he gets. If I needed legal advice, I�d ask one of you. On second thought, I wouldn�t.�
�Well, I had to describe the case to him,� the prosecutor continued searching for a way to leave the room. �I suppose I used my own terminology, which he picked up.�
The judge made a derisive snort, but he had cooled slightly. He looked at me again.
�Part of your job, if you�re representing your client, is to sell the expert to me, or the jury, but it�s just me here, unfortunately for both of you. Tell your guy to think for himself or I�m throwing him out. I�ll be out after I call my wife, which will probably not put me in a good mood. Make me happy, ---------.�
�Yes, your honor,� my opponent said.
The judge looked at me.
�Yes, your honor,� I chimed. I wasn�t sure if the same warning applied to me, since my witness had left the stand the day before and there had been no threat to exclude his testimony.
I lost the case, by which I mean that I was unsuccessful in moving my client from a maximum security ward in a mental hospital to a halfway house. Despite the interaction I�ve just described, the judge�s order made my expert sound like the weaker witness. Perhaps he was, in the judge�s opinion, but I thought then, and I think now, that the judge needed a way to reject my expert and accept the prosecutor�s. It meant he was not making the decision on his own and he didn't want to be responsible if my client came across another machete.
A recent case concerning a dog�s alert in Union Station, Chicago, included a scathing evaluation by the court of two experts. Counsel for individuals suspected of drug activities had not sold them to Judge Elaine E. Bucklo of the federal district court for Northern District of Illionois.
Incident at Union Station, Chicago
DEA Task Force Agent Officer Romano, searching the passenger manifest of a train scheduled to depart Chicago�s Union Station for Seattle on December 6, 2002, noticed that a passenger, Vincent Fallon, had purchased a one-way, first class ticket with cash less than 72 hours before departure, which fit a drug-courier profile.
Romano and another DEA agent, Officer Terry, approached Fallon�s compartment, identified themselves, said they were conducting a routine check, and asked if they could ask a few questions. Fallon complied. The officers asked if Fallon was carrying drugs, weapons, or large sums of money, to which he replied he was not. Romano noticed Fallon was sweating.
Fallon said that the backpack and briefcase in the compartment were his, and consented to a search of the backpack. Romano then reached into Fallon�s compartment and picked up the briefcase. �Finding it locked, he asked Mr. Fallon about its contents.� Fallon said he did not have a key to the briefcase and that he opened with a knife, but that it only contained personal effects. Thus, Romano attempted to open the briefcase very early in the encounter before probable cause could have been established.
On further questioning, Fallon said the briefcase contained about $50,000 in cash, with which he said he planned to purchase a house in Seattle. Romano told Fallon that the briefcase would be seized and Fallon himself detained and asked him to come back into the station where he was frisked, fingerprinted, and photographed. The interaction had developed into an investigatory stop. In a suppression hearing, it was found that a Miranda warning had not been given to Fallon 361 F.Supp.2d 757) (N.D. Ill. 2005).
It was later learned that neither the briefcase nor the money belonged to Fallon but rather to Nicolas Marrocco, who had given the briefcase to Fallon to deposit in a safe deposit box in Seattle. Marrocco, when later challenged to explain the source of the cash, was largely unable to do so. (Another stage of the case determined that Marrocco owned the funds, but the connection of the funds to drug trafficking had not then been established. 494 F.Supp.2d 960 (N.D. Ill 2007).)
Romano requested that a drug detection dog be brought to the station. Before the dog arrived, Romano used a knife to open the briefcase and saw that it contained bundles of cash. He closed it without removing its contents. What was the point of opening the briefcase at this stage, given that the dog would soon arrive and an alert would provide a sufficient reason for opening the case? The effect of opening the case could have been to move air inside the case to the outside, making it easier for the dog to detect the odor of drugs, though there is no evidence that this was why Romano did it. The issue should have been of concern to counsel for the claimants.
Chicago Police Canine Officer Richard King arrived at the station. �After a brief discussion with Officer Romano, during which Officer King observed the briefcase containing the money, Officer King left to retrieve his dog, �Deny.�� Viewing the potential target by the handler should not have been permitted. This informed King that the dog would be sniffing for currency and gave him a visual clue about the size and shape of the object that Deny would be given the chance to alert to in the next stage of the investigation. Knowing the size of the case gave King some idea of what sort of space would be necessary to hide the case, and where it could not be hidden, which raises the issue of cueing as to the subsequent sniff.
Romano hid the briefcase in the �roll call room,� which contained a counter top beneath which were storage cabinets with hinged doors. The briefcase was placed in one of the cabinets. Officer King and Deny then entered the room and King commanded Deny to search for drugs. Where was Romano at this point? One of the experts later suggested he was within sight of the dog. If so, third-party cueing is possible. Romano could have avoided this problem by having someone else hide the briefcase. Arguably, the dog should have been given a zero trial, as would be done in a scent lineup, by entering the room first before the briefcase was hidden in it.
It is not clear why Romano hid the briefcase. Some sniffs of packages and luggage have involved putting the item in a room or row of similar packages, including packages containing currency, but here the idea may have been to try to avoid cueing since King had seen the briefcase and knew something about its contents.
�Whether Deny went straight to the cabinet containing the briefcase or, instead, sniffed about the roll call room before proceeding to the cabinet is in dispute. But the evidence is uncontroverted that Deny �alerted� to the cabinet door by scratching and pulling at it, then, after opening the cabinet door, alerted to the briefcase itself by scratching and biting it.�
Deny did not alert anywhere else in the roll call room. Counsel for the claimants argued that Deny did not go straight to the cabinet where he alerted, but the judge correctly noted that this was immaterial as a systematic search of the room before alerting did not indicate any failure on the canine team�s part. Ironically, counsel for the claimants might have made a stronger argument by suggesting that Deny went straight to the case because he was matching the odor of Romano, whom he had been near, to Romano�s scent on the briefcase, which Romano had tried to open and carried for a brief period. Thus, it could have been argued that the investigation had turned into a sort of tracking test or article search.
In challenging the canine evidence, the claimants seeking to avoid forfeiture of the cash argued that there were three genuine factual disputes regarding that evidence:
(1) Whether Deny was properly trained and certified to discriminate between innocently contaminated currency and currency that has been used in connection with a narcotics transaction.
(2) Whether Deny alerted to the odor of methyl benzoate or instead to the odor of circulated currency innocently contaminated with cocaine.
(3) Whether the methodology of the �sniff-search� in this case adequately protected against cross-contamination or the possibility of a false positive alert.
The court, in denying a previous motion for summary judgment by the government, had noted that the government admitted in its reply supporting that motion that "the dog sniff evidence is the sine qua non of its case...." The phrase "sine qua non" seems to suggest that the canine evidence here is more than corroborative, being almost the government's entire case. The court, while denying the government's motion at the time, did so with leave to file a renewed motion supported by expert evidence regarding the sniff, as well as challenging the claimants' expert evidence, which consisted of two canine experts. The court seemed to be showing the way that the government could win on motion, without having the canine evidence examined in a full trial, which is what has now happened.
Training and Certification
The court found it �undisputed� that the canine team had received 500 hours of training, including narcotics detection for marijuana, cocaine, heroin, ecstasy, and methamphetamine, and had been certified in 1998 and remained so until he retired in 2007. In pre-certification training, the pair conducted 116 sniff searches in which he alerted to the presence of drugs or money. In training sessions where currency was sniffed, Deny alerted to tainted currency but not untainted, circulated currency.
The court dismissed a challenge to the government�s evidence as follows:
�Claimants purport to dispute this evidence based on their expert, Mr. Kroyer's, own interpretation of the 'dog log.' � But Mr. Kroyer has no personal knowledge of that document, and his interpretation of it is insufficient to controvert the sworn testimony of Officer King, who created the log and participated in the events it records, and who affirmatively disputes Mr. Kroyer's interpretation. The evidence is thus undisputed that on three separate occasions during his training, Deny alerted to currency contaminated with narcotics but did not alert to untainted currency.�
The wording is a little curious in reaching the conclusion that the evidence was undisputed because the expert had no personal knowledge. A log book should be sufficiently understandable that "personal knowledge" would not be necessary to understand it. In any case, it would seem that there was in fact a dispute. It should be perhaps be noted here that where a dog fails to alert to currency, the currency will often not be tested for cocaine residue, meaning that a false negative could easily go undetected.
Field Records
The court states that after certification, Deny �performed approximately 309 sniff searches (in training and in the field) and gave 259 positive alerts. In fifty searches, Deny did not alert. Of Deny�s 259 positive, post-certification alerts, ninety-three were in training exercises. Eighty-two of these revealed hidden drugs, and ten revealed drug-scented currency.�
The numbers should have been explored more by counsel for the claimants. The dog had a nine-year working life, from 1998 to 2007. The average training time per month is probably around 16 hours (four hours/week), or about 192 hours per year, and 1,728 hours over a career of nine years. It would seem that with this much training (more or less), Deny should have only had the opportunity to alert to actual drug odor 93 times, about once a month. This is a very low number. Counsel for the claimants should have explored what amount of narcotics training was really going on.
The court then refers to the team�s statistics in the field:
�Deny also made 166 positive, post-certification alerts in the field, forty-five of which revealed narcotics. There is a dispute over whether Deny made 113 or 115 positive alerts to currency in the field, but this dispute is immaterial because even if Deny alerted 115 times to currency (as claimants contend), and even if every single one of these alerts was a false alert, it is nevertheless undisputed that drugs or currency known to be tainted with the scent of drugs was found after 137 of his 259 positive, post-certification alerts (ninety-two times in training and forty-five times in the field), making his reliability no less than 52.8%.�
The court�s approach was to look at all post-certification alerts, whether training or field alerts, and calculate the dog�s accuracy based on the finding of drugs and on alerts to currency known to be drug-tainted. If, instead, one were to look solely at field alerts which revealed narcotics, one would have 166 alerts resulting in the discovery of drugs in 45 instances. This would be an accuracy rating of 27.1%, excluding possible residual odor alerts. Instead, finding an accuracy rate of 52.8% (or 67.5% if pre-certification results are included), the court concluded that this was sufficient to meet the standard the Seventh Circuit set in U.S. v. Limares, 269 F.3d 704 (7th Cir. 2001).
Experts for the Claimants
It was mentioned above that the court rather dismissed Kroyer, an expert for the claimants, but it gets much worse for him:
�Furthermore, Deny's reliability is not materially challenged by claimants' putative experts. David Kroyer, a dog trainer whose esoteric credentials are summarily, and rather unhelpfully, described in the first paragraph of his short affidavit, � first suggests that Deny's certification by the Chicago Police Department is deficient, opining that it is 'normal' for dogs to be certified by outside agencies. Mr. Kroyer further opines that Deny's certification, or his handler's affidavit, should reflect which odors he is certified to detect, and the standards he is required to meet for certification�. Mr. Kroyer then opines that Deny's training was deficient. None of these opinions materially controverts the evidence of Deny's reliability, however, which is based not on his paper credentials, but on his actual performance in training and in the field�. Moreover, Mr. Kroyer's opinion that Deny was inadequately trained, is based on his own interpretation of the 'dog log,' a document of which, as noted above, Mr. Kroyer has no personal knowledge. In short, Mr. Kroyer's opinions relating to Deny's certification and training do not controvert the government's evidence of Deny's reliability.�
Putative experts? There is more �opining� here than I have ever seen in a single paragraph. The court reproduces Kroyer�s �unhelpfully described� �esoteric credentials� from his affidavit:
�Owner, President, Certified Training and Behavior Consultant, Master Trainer and Training Director of Canine Headquarters Police K9 division. Eleven years training experience. Placed green and finished K9 detection dogs for Law Enforcement, Military, and Homeland Security/Border Patrol. Trained and placed handlers for Law Enforcement, and Military. One Hundred percent (100%) passing rate under NNDDA certification. Conducted seminars and workshops nationally and internationally on detection dog training. Assisted in developing a program for mine detection rats at Bogota University, Columbia (sic).�
Certainly Kroyer needs a marketing consultant, and he should at least spell out National Narcotic Detector Dog Association, but I do not recall ever seeing such contempt for an expert.
Dr. Lawrence J. Myers of Auburn did not fare much better. The court quotes from Myers� affidavit, which states that there �are no records of replicated, controlled, randomized, double-blind tests performed to determine reliability.� Moving on, the court then states:
�And Dr. Myers' opinion suffers from additional flaws that do not require expert rebuttal to perceive. For example, Dr. Myers suggests that Deny's ability to distinguish contaminated currency from general circulation currency�despite having been established on three separate occasions in Deny's pre-and post-certification training exercises�should be disregarded because �[t]here is no evidence of numerous non-alerts by the canine, Deny, to circulated U .S. currency.� This suggests, of course, that some number of non-alerts to circulated currency would be enough to establish Deny's ability to distinguish between tainted and untainted currency. But if three times is not sufficiently �numerous,� how many times would be? Ten? Fifty? One hundred? The Myers affidavit verily begs the question, but then proceeds to its conclusion that Deny's alert is unreliable without even the hint of a response. For the same reason, Dr. Myers' opinion regarding the need to �proof� a detector dog off circulated currency�even were it not in conflict with the court's holding in Limares (reliability based on �how dogs perform in practice,� not �how they were trained and �proofed off� currency�), � and based largely on the discredited �currency contamination theory� (more on this below)�rings hollow on this record.�
The court is correct that an alert should not be rejected merely because there were not enough opportunities in a dog�s history to make false alerts, when there is no indication that false alerts would necessarily be made. Myers is correct, however, that a narcotics detection dog�s training should regularly involve proofing, such as using currency line-ups in which only some of the stations are tainted.
Myers then raises the possibility of cueing, which the court also dismisses:
�Nor does Dr. Myers' discussion of scientific studies involving �the potential for cuing� by a detector dog's handler or other individuals raise a genuine dispute over the reliability of Deny's alert in this case. Whatever the validity of such studies, the only bases Dr. Myers cites for his opinion that this particular alert may have been a response to some �cue,� rather than to Deny's detection of the scent of narcotics, are that �the handler knew and saw the object of the search,� and that the officer who had hidden the briefcase was �visible in the doorway of the room in which it had been placed.� There is no dispute, however, that Deny's handler, Officer King, did not know where the briefcase was hidden, and thus could not have �cued� Deny to alert to the cabinet door. And, without any explanation of how Officer Romano might have �cued� Deny from the next room (much less any evidence that the dog actually saw the officer), the mere possibility that Officer Romano may have been visible through the doorway is far too speculative a basis for concluding that Deny's alert was the result of the officer's improper influence, rather than the dog's detection of narcotics.�
Myers was right to raise the issue of cueing, as we did previously in our analysis. If King was visible in the doorway, the possibility of third-party cueing is high, and King already knew the size of the object that had been hidden in the room. As the authors have discussed in a paper on cueing posted on the website of the Animal Legal and Historical Information Center of Michigan State University, cueing by no means only comes from the handler�s knowledge. Anyone visible to the dog can make a motion that can cue a dog.
The court summarizes the opinions of the experts of the claimants by saying that the effort to challenge Deny's training and certification "simply do not controvert the government's proffered evidence of Deny's reliability." It must be remembered that this conclusion is not one made after trial evidence, but rather on a motion that, in this case, will obviate the need for a trial. Although the effort of these experts to "controvert the proffered evidence" may not have been well stated, controverting there surely was.
Innocently Contaminated Currency?
The court also rejected an innocently contaminated currency argument, relying on U.S. v. $30,670 (7th Cir. 2005). a case the district court said �puts to rest any argument that dog sniffs are universally unreliable based on the �currency contamination� theory.�
Finally, counsel for the claimants argued that cross-contamination might be involved, that is that �Deny�s alert may have accurately detected the odor of narcotics, but that the briefcase and currency seized from Mr. Fallon became contaminated with that odor only after it was seized.� The court rejected this argument in the absence of supporting evidence. It is not that the possibility of contamination did not exist, but it must be acknowledged that the claimants had the burden of producing evidence that there might be some such contamination. It is not clear whether claimants were suggesting some fraud on the part of the police or considered that the area where the briefcase was hidden held cocaine residue or that somehow residue was accidentally put on the briefcase. Perhaps they intended to suggest that Romano knew that it would reflect well on him if the large amount of currency he had seen were forfeited, though they would have needed more than just possible motive and opportunity to get anywhere with this.
Was Summary Judgment Appropriate?
The court concluded that �the opinions of claimants� experts do not raise a triable dispute as to the reliability of Deny�s alert. Accordingly, Deny�s alert to the briefcase supports the government�s claim of �a substantial connection between� the seized funds and the commission of the drug-related offense.� Rejecting other non-canine-related arguments, the court determined that �the totality of circumstances in this case leads to only one reasonable conclusion�that the subject funds were substantially connected to a narcotics-related offense�the government is entitled to summary judgment of forfeiture.�
There was other evidence that the currency was involved in narcotics activities, such as the inconsistent and illogical stories provided by the claimants, yet the court and the government accepted that the canine evidence was fundamental to the government's position. That evidence, though not handled under the best of standards, did produce an alert. The possibility of cueing existed and claimants, though not presenting their evidence as well as might have been desired, should have had the opportunity to explore that issue and the dog's reliability at trial.
U.S. v. Funds in the Amount of One Hundred Thousand and One Hundred Twenty Dollars, 2011 WL 4686066 (N.D. Ill. 2011). For an extensive discussion of the history of currency sniffs, including probable cause issues, see Chapter 15 of Police and Military Dogs.
This blog was written by John Ensminger and L.E. Papet.
Thursday, 27 October 2011
Sunday, 23 October 2011
Station Identification as Forensic Procedure? California Court Strains Tracking Law in Drive-By Shooting Case
Tony Walker was sitting in a parked car in the afternoon on May 7, 2007, when a Dodge Intrepid came past with three bald-headed Hispanic men, at least one of which, according to a witness, had a gun. Multiple shots came from the Intrepid, killing Walker and Jamal Varcasia, who was running across the street at that moment.
The witness, Raeshel Shay, was frightened and did not immediately report what she had seen. Later she was in custody for having a fraudulent gift card when, during a monitored phone call to her sister, she mentioned the shooting. Using photographic six-packs, she identified Jose Elias as the driver, Joseph Ruiz as the rear passenger, and Eric Perez as the front passenger. At trial, she identified them again but said Elias had been in the back seat and Perez had been the driver.
Elias and Ruiz were also identified by Johann Montoya as being in a car near the scene of the May 7 shooting, though Montoya made this statement to an officer after he was beaten by some of the men in the car on or about May 11. At trial, Montoya denied making a statement about the May 7 incident.
Bullet casings were recovered from the scene of the murders. All casings were fired from the same Remington Peters 9mm Luger, and probably all the recovered bullets and fragments were fired from that weapon as well. A .32 caliber handgun was recovered later during the investigation at a different location. This was not the murder weapon but there was some evidence that a second gun had been in the Intrepid on May 7 and the police considered it possible that this gun had been in the car during the shootings.
Station Identification
A station identification was performed on May 16, 2007, by Ted Hamm, a civilian handler working for the police, and his dog, Bojangles. Detective Grant Curry had three detectives take the three defendants�Ruiz, Elias, and Perez�to the third floor of the Pasadena Police Station and put them in different rooms. The opinion states:
�Neither Detective Curry nor Hamm knew where on the third floor the defendants were. Detective Curry then gave Hamm three bullet casings recovered from the crime scene and the .32 caliber gun. Using a Scent Transfer Unit (STU), described as a modified dust buster, Hamm extracted scent from the three casings and placed it on a sterile guaze pad. Hamm did the same with the .32 caliber gun, placing its scent on a different gauze pad.�
It is not clear why Hamm felt it necessary to place scent from all three casings on the same pad since more than one person may have loaded different rounds and separate pads from each casing might verify this. In any case, the scent pad created from all the casings was used by the dog to identify two individuals. There was no discussion concerning whether this might indicate that one of the rounds was loaded prior to the incident on May 7, which could argue that one of the defendants might not have been present during the shootings.
�Hamm brought his dog, Bojangles, up the elevator to the third floor and let Bojangles smell the pad containing the scent from the casings. Bojangles immediately went down the hall, making turns, and led Hamm and the detective to Perez. After Bojangles smelled a pad with the scent from the casings again, Bojangles this time led them to Elias. But when the scent pad was reintroduced a third time, Bojangles did not move.�
Why did the dog not move after being scented a third time? Presumably we are to understand that the dog had completed its tracking, but this was not explained. Did Hamm and Bojangles begin each sniff in the same location? Once the dog alerted to a suspect, was the suspect removed? Was a replacement put in the same place as the identified suspect had been? How many choices did Bojangles actually have in terms of suspects or individuals who looked like suspects after being scented each time?
A third identification took place in the Pasedena Police Station parking lot:
�The other detectives then took Elias, Ruiz, and Perez to the parking area, and Hamm had Bojangles smell the scent pad from the .32 caliber gun. Bojangles led to Ruiz.�
This change of location should also be explained. A parking lot identification has some of the same concerns as a station identification and most of the same questions raised above should have been of concern to the police and defense counsel.
A jury convicted Elias and Ruiz of the murders in February 2010. Elias received a sentence of life without possibility of parole plus two consecutive 25 year terms. Ruiz was sentenced to two life terms, each with a 15 year minimum plus two consecutive 25 year terms.
Canine Evidence at Trial
In a pre-trial hearing, the court determined that a scent transfer unit (STU) is, in the words of the appellate court, �generally accepted in the scientific community as a collection device and that it can pick up scents from items that have gone through volatile events or scents.� The trial court also determined that a foundation had been laid for the handler and the scent dog.
The appellate court found the assignment of error of the defendants regarding the canine evidence �imprecise,� but concluded that they were objecting to the STU on scientific grounds, but to the dog scent identification as lacking a proper foundation. The defense argued at trial that it had not been established that an STU could pick up multiple scents. It is not clear where the defense was going with this argument. Did someone on the defense team think that an STU selectively picked up only certain scents? In any case, the defense seems to have dropped this line, but then suggested that a dog could not differentiate multiple scents. The appellate court called this a foundational issue. In any case, canine detection is based on the knowledge that a dog can be scented to one odor and thereafter distinguish this odor from others that might be present at the same time. This was established scientifically by Otto Kalischer more than a century ago. Dogs can also be taught to remember multiple scents (up to 17 separate individuals were distinguishable by dogs in one experiment) and will continue to distinguish them for much longer than was required for the testing discussed here.
The appellate court concluded that the trial court did not abuse its discretion in finding that the prosecution established a foundation to admit the dog scent identifications. The court analyzed the history of dog tracking and scent lineups in California, describing cases reviewed extensively in Police and Military Dogs, including People v. Willis, 115 Cal.App.4th 379, 9 Cal.Rptr. 235 (2004), a station identification in which a California appellate court determined the admission of the identification using an STU was clear error, though harmless because of the other evidence. Despite the rejection of canine evidence in Willis, the appellate court here found that the testimony of the experts had provided an adequate foundation for admission of the scent identification evidence:
�We find that the trial court did not abuse its discretion in finding that the People laid an adequate foundation to admit the dog-scent identification evidence through the testimony of its expert witnesses: Dr. Kenneth Furton, a professor of Chemistry and Biochemistry; Rex Stockham, an FBI supervisory special agent who is the forensic canine program manager and research program manager for the evidence response team unit; and Ted Hamm, a civilian contract canine handler primarily employed by the Los Angeles County Sheriff's Department and Bojangles's handler and trainer.�
Hamm and Bojangles
The defense objected that there were no negative scent pads used, i.e., negative controls or zero trials in which the dog was scented on a pad unconnected with the case to verify that the dog would not start tracking if there was no scent related to the pad to be followed. One of the experts described his use of a negative scent pad to ensure his dogs are working properly, before the actual trailing is done. The court rejected this argument as follows:
�Using such �controls,� however, is not common practice, and the only law enforcement agency that uses controls is the FBI. Hamm's failure to use a negative scent pad did not therefore establish that the procedure he used was a bad practice.�
Hamm is familiar with negative controls. In a 2005 case, the Los Angeles Superior Court cited several experts (including Stockham) regarding the value of negative controls and said that Hamm, a handler in that case as well, �uses negative checks and Knight responds reliably.� People v. Salcido, Docket No. GA052057 (Los Angeles Superior Court 2005). The authors are aware of law enforcement agencies other than the FBI using negative controls, but perhaps the court is correct as to California police practice.
The defense also argued that Hamm�s procedures were faulty because he only used one dog, not two. The court also rejected this:
�Stockham, however, merely testified that while he prefers to use more than one dog in his investigations, he uses single dogs too. Stockham did not testify that the only generally accepted practice is to use two dogs. In fact, Stockham praised Hamm as �very competent� and in the �top echelon of experienced handlers in the U.S.� He considers Hamm to be a leading expert in scent trailing.�
In a properly conducted scent lineup, it is our opinion that several dogs increase the reliability of an identification. (See draft paper of Ensminger, Jezierski, and McCulloch, pp. 58-63, describing how requiring three or more dogs for a positive identification significantly reduces the number of identifications, but also reduces the chance of a misidentification almost to zero).
The defense then argued that a finding of adequate training and reliability could not be made because Bojangles was not certified. The court rejected any certification requirement, and concluded that one of the experts in the case, Furton, though mentioning certification, had not meant that it was required:
�Defendants incorrectly assert that Dr. Furton testified that a dog must go �through certain blind tests and reach a set percentile of correct identifications� to be certified in California. What Dr. Furton actually said was a California organization he belongs to requires a training log, blind tests, and a certain percentile of correct identification to certify a dog; he did not testify that California has a certification standard or process. Rather, there is no national standard for certification or training of scent dogs, and standards vary from state to state. Neither California nor the Los Angeles County Sheriff's Department have requirements for certifying trailing dogs. The Scientific Working Groups on Dogs and Orthogonal Detection Guidelines (SWGDOG), an international working group funded by the FBI, is developing best practice certification and assessment guidelines for police-related canine disciplines.�
Hamm is presumably not opposed to certification. In Salcido, he used a dog named Knight that had been certified in 1998, apparently with the California Bloodhound Handlers Coalition, though Hamm did not purchase the dog until 2000. The court then summarized the position of another expert, Rex Stockham of the FBI, regarding training and certification:
�Although there are no national or specific state standards for training or certifying a scent dog, Stockham described his training process and how he determines a dog's reliability. Stockham keeps detailed training records to compare and contrast the milestones a dog should reach. To determine a dog's reliability, he relies on frequent observation of teams and blind testing, which the FBI routinely conducts. Before Stockham considers deploying a dog for a job, he subjects it to a series of tests and controls. The �best practice� is for someone not routinely involved in the dog's training to assess its readiness for fieldwork. But a dog's handler also has the ability to determine whether the dog is positively or negatively trailing a scent. Once a dog is ready for fieldwork, the dog still requires maintenance training, and the industry standard is a scent dog should have 16 hours of maintenance training, although some people in the field believe that once a month is sufficient.�
Although some of Stockham�s comments would seem to provide a model different from what Hamm actually used, there was no further discussion of the disparity.
The defense also pointed out that Hamm had lost training logs dated before 2008 in a computer crash and argued that this meant that �Bojangles�s training and abilities were merely anecdotal.� The court responded:
�We disagree. Hamm testified extensively and specifically about his and Bojangles's background. Hamm has trained bloodhounds for 21 years and participated in over 2,000 investigations. He begins training a dog when it is a puppy. The dog first watches a person run away and then follows. Then the person drops an object that has his or her scent on it. Eventually, the person goes out of the dog's sight, and the dog must transition from visually following the person to using its nose to find the person. The length, age, and complexity of the trail is slowly increased. Hamm also works blind, meaning he doesn't know where the person is or what the result should be. The training process takes about two years, although a dog continues to do maintenance training even after it is ready to work. He tries to do maintenance training at least once a week and more often if he is able.�
Hamm is no doubt busy. In a 2008 opinion, the court cites the trial court�s description of Hamm as having been involved in 1,200 cases. People v. Alonzo, 2008 WL 2248628 (Ct. Appp. 2008). This suggests that Hamm works on at least 200 investigations a year, a significant number for a contract worker.
The absence of training records is not made trivial by a restatement of the training procedures preferred by the handler of the dog. Hamm has testified in many cases, and it would seem likely that prior records might have been introduced in other cases where he testified, but this possibility was not discussed. The court continued regarding Hamm�s training regimen:
�Hamm trained Bojangles in this manner, on trails fresher than 48 hours, to discriminate between human scents and to identify only the scent he's given. Bojangles has also been trained in different environments and on different surfaces. He's been trained with the STU and on a variety of scent articles, including spent cartridge casings. Bojangles frequently participates in a weekly maintenance training session. Hamm has been doing casework with Bojangles for three or four years with no history of falsely identifying targets in either blind testing or casework. Bojangles has confirmed cases, which are cases in which the dog's conclusion is confirmed by other sources, for example, witness statements, confessions, and DNA. To Hamm's knowledge, Bojangles has no confirmed negatives, where the dog found a scent and trailed to a subject who did not match the scent.�
The court apparently accepted Hamm�s testimony that Bojangles had �no history of falsely identifying targets,� and that �[t]o Hamm�s knowledge, Bojangles has no confirmed negatives.� Not many handlers could say this about the entire history of any dog. A footnote explains that �Hamm has been able to confirm approximately 40 of Bojangles�s cases out of 300.� This meant that the defense apparently had access to about 13% of the dog�s field work.
The defense also argued that there was no evidence that a bluetick coonhound had particular scent abilities. Here, the court correctly observed that �to the extent a dog�s breed is related to its ability to discriminate scents, there has been an insufficient foundation�.� Coonhound mixes have been effective trackers since the nineteenth century.
Thus, the defense had no access to a significant part of the dog�s training history or to the vast majority of its field work. Consequently, neither did the experts. A good part of the prosecution�s case, therefore, rests on the testimony of the handler, to which the court was quite receptive.
A Florida court recently excluded canine evidence where adequate field records could not be supplied (though the records there were more substantial than those available here), stating that if �an officer fails to keep records of his or her dog's performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs.� We suggested in that context, which could have involved the exclusion of evidence in the future from a large number of canine teams that had no advance notice that additional recordkeeping would be required, that the Florida court should perhaps have fashioned some interim means of qualifying a dog. The solution in the case here would have been to allow independent testing of Hamm and Bojangles prior to the admission of the canine evidence. We suggest that, if such an approach were accepted, the testing should consist of an independently monitored scent lineup, since duplicating conditions on the third floor of the Pasadena Police Station would be impossible with any scientific objectivity.
Human Scent
The court then discussed the uniqueness of human scent, the ability of dogs to pick up scent from an object, and the ability of dogs to differentiate multiple scents on an item. Relying primarily on the experts, the court correctly determined that these elements were supported by scientific findings as accepted by prior California cases.
Instruction to the Jury
California provides for standardized instruction in tracking cases, and the CALCRIM No. 374 was used for this purpose:
�You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you rely on dog-tracking evidence, there must be, one, evidence of the dog's general reliability as a tracker, and, two, other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [�] In deciding the meaning and importance of the dog-tracking evidence consider the training, skill and experience, if any, of the dog, [its] trainer or [its] handler together with everything else that you learned about the dog's work on this case.�
The defense pointed out that the case at hand was not a typical tracking case in that the dog did not follow a scent from the crime scent to a location where the defendant had been or was found, yet the instructions were issued without objection. The court acknowledged that the situation was not typical:
�Although CALCRIM No. 374 might seem more appropriate to [tracking situations], it is not inapplicable to a station identification. The instruction simply says that there must be �other evidence that the dog accurately followed a trail that led to the person who committed the crime.� (Italics added.) Bojangles smelled scent from the .32 caliber gun and trailed to Ruiz. Although there was no physical evidence that a .32 caliber gun was used during the crimes (only nine-millimeter bullets and casings were recovered from the crime scene and from the victims' bodies), Raeshal Shay testified that she might have seen two guns; hence, it was the prosecution's theory that Elias and Ruiz committed the crimes together and that there was a second gun, possibly the .32 caliber gun found at Ruiz's girlfriend's house. The dog-scent evidence therefore merely connected Ruiz to the .32 caliber gun; there had to be other corroborating evidence that Ruiz was the person who committed the crime.�
The court found the �other corroborating evidence� in other testimony regarding the actions of the defendants, and after reviewing gang-related issues, affirmed the conviction.
A Hybrid Procedure?
There was far too little discussion of the station and parking lot identifications, and too little consideration of how they were conducted. A floor plan of the third floor of the Pasadena Police Station would have been helpful in determining what sort of tracking was really involved. How many rooms were on that floor? How many suspects were on the floor? If there were only a few suspects on the floor, then the possibility of cueing is not negligible. Did any officers on the floor, either with the defendants or otherwise, know why the dogs were working there? If so, the possibility of third-party cueing was present, a factor that scientifically conducted scent lineups remove by insisting that no one within sight of the dog know the correct station in a lineup.
If the dog was not trained with negative controls, it may have performed its work in expectation of a reward. How many individuals not in police uniforms and dressed as gang members were actually on the third floor that the dog could choose from? In a scent lineup, the possibility of randomly correct identification increases as the number of stations in the lineup decrease. Was this issue considered?
The tracking aspect of the procedure also needs to be explained in more detail. Did all the defendants on the floor use the same hallway and follow the same path except when entering separate rooms? Did any of the suspects enter any rooms where other suspects were placed, even if only temporarily? Did the dog use the same hallways and passages as the defendants? Did any defendant enter a room through a passage where the dog could not sniff? If so, this begins to look like a modified scent lineup rather than a modified tracking or trailing.
Was the procedure videotaped? Although scent lineups should, in our opinion, be videotaped, it is seldom practical to videotape a tracking or trailing. Here, however, given the limited space and the advance placement of the suspect, it would have been advisable to use video cameras. If this is to continue to be the Pasadena Police Department�s method of scent identification, stationery video cameras should be installed in the third floor in places that will capture the movements of the suspects as well as those of handlers and dogs.
The presence of other individuals than those directly involved in the identification should have been recorded. Certainly this would be required in a scent lineup. So who was present in the hallways? What did they know? Were doors to the rooms with the defendants open? Were all other doors on the floor open as well? Could individuals in the hallways see the dogs when they entered the rooms and presumably alerted to the suspects? If only the doors to the rooms with the defendants were open, there was little possibility for randomness in the dog�s indications.
There were other differences from tracking. In most tracking situations, the dog has the possibility of following a trail that ends with no suspect in the vicinity. The suspect may cross streams, enter cars, disappear in countless ways. There is a good chance that the dog will abandon the trail. The possibilities of what can happen in an outdoor tracking are often infinite. Here it appears the handler knew there was a correct choice to be made in a finite space, much as if the handler was guaranteed that one station in a lineup would be a positive match. This is another reason why some sort of negative control should have been performed, one where Hamm would not know that there was no match to be found on the floor, but where individuals who looked like suspects were present in some of the rooms.
Some research has indicated that a longer trail reinforces the dog�s ability to identify a suspect as the individual being tracked. (Police and Military Dogs, p. 62) The trails here were presumably very short. One study found that dogs often follow the correct trail but fail to alert to the correct party at the end. In one segment of that study, dogs followed the correct trail 100% of the time, yet alerted to the correct �suspect� only 73% of the time. Did Bojangles ever alert to anyone besides a suspect? Apparently not, yet the fact the defendants were accompanied by escorting detectives raises the possibility that the dog was not always tracking a defendant. Without a videotape the only witness whose testimony could be elicited on this question was apparently Hamm. Did defense counsel obtain detailed accounts from the defendants of what happened on the third floor of the Pasadena Police Station? Even if so, would they have understood that they were seeing an alert to someone besides themselves?
Hamm and the Pasadena Police Department have begun to use station identification as a procedure. This formalized station identification fits neither the parameters that are applied by SWGDOG or any certifying organization to a scent lineup or most tracking environments. The court rejected that the argument that the procedure used by Hamm had to be vetted as a novel scientific approach. That may be correct because it was an amalgam of two generally accepted procedures. Yet because it was an amalgam it must be analyzed for what it is, not assumed to pass as a tracking with insignificant variations.
Station identifications have often occurred accidentally. The trail goes cold, the dog stops tracking and is returned to the station, where a suspect has been brought in on other evidence, the dog picks up the scent inside the station and resumes tracking, then alerts to the suspect. Here this result was not accidental but expected.
Hamm and Pasadena police officials have used the third floor of the Pasadena Police Station before. See California v. Smith, 2011 WL 1350762 (Ct. App. 2011). Were the defendants put in the same rooms as those in prior cases? If so, this also raises the possibility that Hamm may have expected the defendants to be in certain rooms on the floor. Were these rooms ever sterilized? How often was the procedure on the floor being used? Could anyone be certain that odor from prior suspects was not still present?
There are reasons why scent lineups must be so rigorously conducted in order to be fair, and why their use in some countries in Europe (the Netherlands, Poland) has been so considerably restricted. Hamm�s station identification procedures were not required to meet any scent lineup standards because the court accepted that this was a tracking situation. Yet the variations from tracking were sufficiently great that it must be asked why scent lineups were not used, since these could involve parameters that would assure a high level of reliability.
Conclusion
The case is disturbing at a number of levels. The court affirmed the reliability of Bojangles based on the handler�s description of the dog�s history, without either adequate training or field records, or any certification of the handler and dog as a team. Although the court was correct that certification can vary from state to state and organization to organization, the presence of records of a certifying organization could have been of considerable assistance in a case where the handler could offer only fragmentary records.
Station identifications have a legitimate place in American legal history, and have resulted in properly admitted identifications of suspects since at least 1918. Nevertheless, the Pasadena Police Department, with the help of California courts, has inappropriately elevated this procedure to a forensic technique. Significant differences of this formalized station identification from a typical tracking situation were ignored in this case, and have given the green light to further use of a procedure that fails to take into account the controls that can assure that a scent lineup is objective. California has here accepted an approach that may far too easily result in misidentifications.
It must be acknowledged that canine evidence is often important in drive-by shootings where witnesses can disappear for many reasons, and California is right to want to preserve the possibility of using this evidence. The solution is to adopt skillfully managed scent lineups, not to use a slapdash cross between tracking and scent lineups.
A larger concern is that if American law enforcement authorities continue to employ poorly designed scent identification techniques, the label of junk science that has been given by the Innocence Project and others to such techniques will stick after a few more reversals and there will be considerable pressure on U.S. courts to stop allowing scent identification altogether. Unfortunately, the junk science label is correct as to most--perhaps all--scent lineups described in any detail in American judicial opinions. It would be a shame to have such a wholesale rejection of scent identification since scent lineups can be made much more rigorous than has been true in the United States so far and could be a valuable forensic technique for law enforcement.
People v. Elias, B224372, 2011 WL 3949808 (Ct. App. 2011). It has been pointed out to us that we should note that this opinion has not been certified for publication and, under California Rules of Court, Rule 8.1115, may not be cited or relied on by a court or party except under limited exceptions. This rule has been the subject of considerable criticism. One commentator noted that "[t]here is no valid reason why litigants should not be able to let a trial judge or appellate justice know how their colleagues decided a case involving similar facts even if that opinion is unpublished." Keshavarzi, M. (May 7, 2010), Daily Journal. In any case, our criticisms are not part of a legal proceeding.
This piece was written by John Ensminger and L.E. Papet.
The witness, Raeshel Shay, was frightened and did not immediately report what she had seen. Later she was in custody for having a fraudulent gift card when, during a monitored phone call to her sister, she mentioned the shooting. Using photographic six-packs, she identified Jose Elias as the driver, Joseph Ruiz as the rear passenger, and Eric Perez as the front passenger. At trial, she identified them again but said Elias had been in the back seat and Perez had been the driver.
Elias and Ruiz were also identified by Johann Montoya as being in a car near the scene of the May 7 shooting, though Montoya made this statement to an officer after he was beaten by some of the men in the car on or about May 11. At trial, Montoya denied making a statement about the May 7 incident.
Bullet casings were recovered from the scene of the murders. All casings were fired from the same Remington Peters 9mm Luger, and probably all the recovered bullets and fragments were fired from that weapon as well. A .32 caliber handgun was recovered later during the investigation at a different location. This was not the murder weapon but there was some evidence that a second gun had been in the Intrepid on May 7 and the police considered it possible that this gun had been in the car during the shootings.
Station Identification
A station identification was performed on May 16, 2007, by Ted Hamm, a civilian handler working for the police, and his dog, Bojangles. Detective Grant Curry had three detectives take the three defendants�Ruiz, Elias, and Perez�to the third floor of the Pasadena Police Station and put them in different rooms. The opinion states:
�Neither Detective Curry nor Hamm knew where on the third floor the defendants were. Detective Curry then gave Hamm three bullet casings recovered from the crime scene and the .32 caliber gun. Using a Scent Transfer Unit (STU), described as a modified dust buster, Hamm extracted scent from the three casings and placed it on a sterile guaze pad. Hamm did the same with the .32 caliber gun, placing its scent on a different gauze pad.�
It is not clear why Hamm felt it necessary to place scent from all three casings on the same pad since more than one person may have loaded different rounds and separate pads from each casing might verify this. In any case, the scent pad created from all the casings was used by the dog to identify two individuals. There was no discussion concerning whether this might indicate that one of the rounds was loaded prior to the incident on May 7, which could argue that one of the defendants might not have been present during the shootings.
�Hamm brought his dog, Bojangles, up the elevator to the third floor and let Bojangles smell the pad containing the scent from the casings. Bojangles immediately went down the hall, making turns, and led Hamm and the detective to Perez. After Bojangles smelled a pad with the scent from the casings again, Bojangles this time led them to Elias. But when the scent pad was reintroduced a third time, Bojangles did not move.�
Why did the dog not move after being scented a third time? Presumably we are to understand that the dog had completed its tracking, but this was not explained. Did Hamm and Bojangles begin each sniff in the same location? Once the dog alerted to a suspect, was the suspect removed? Was a replacement put in the same place as the identified suspect had been? How many choices did Bojangles actually have in terms of suspects or individuals who looked like suspects after being scented each time?
A third identification took place in the Pasedena Police Station parking lot:
�The other detectives then took Elias, Ruiz, and Perez to the parking area, and Hamm had Bojangles smell the scent pad from the .32 caliber gun. Bojangles led to Ruiz.�
This change of location should also be explained. A parking lot identification has some of the same concerns as a station identification and most of the same questions raised above should have been of concern to the police and defense counsel.
A jury convicted Elias and Ruiz of the murders in February 2010. Elias received a sentence of life without possibility of parole plus two consecutive 25 year terms. Ruiz was sentenced to two life terms, each with a 15 year minimum plus two consecutive 25 year terms.
Canine Evidence at Trial
In a pre-trial hearing, the court determined that a scent transfer unit (STU) is, in the words of the appellate court, �generally accepted in the scientific community as a collection device and that it can pick up scents from items that have gone through volatile events or scents.� The trial court also determined that a foundation had been laid for the handler and the scent dog.
The appellate court found the assignment of error of the defendants regarding the canine evidence �imprecise,� but concluded that they were objecting to the STU on scientific grounds, but to the dog scent identification as lacking a proper foundation. The defense argued at trial that it had not been established that an STU could pick up multiple scents. It is not clear where the defense was going with this argument. Did someone on the defense team think that an STU selectively picked up only certain scents? In any case, the defense seems to have dropped this line, but then suggested that a dog could not differentiate multiple scents. The appellate court called this a foundational issue. In any case, canine detection is based on the knowledge that a dog can be scented to one odor and thereafter distinguish this odor from others that might be present at the same time. This was established scientifically by Otto Kalischer more than a century ago. Dogs can also be taught to remember multiple scents (up to 17 separate individuals were distinguishable by dogs in one experiment) and will continue to distinguish them for much longer than was required for the testing discussed here.
The appellate court concluded that the trial court did not abuse its discretion in finding that the prosecution established a foundation to admit the dog scent identifications. The court analyzed the history of dog tracking and scent lineups in California, describing cases reviewed extensively in Police and Military Dogs, including People v. Willis, 115 Cal.App.4th 379, 9 Cal.Rptr. 235 (2004), a station identification in which a California appellate court determined the admission of the identification using an STU was clear error, though harmless because of the other evidence. Despite the rejection of canine evidence in Willis, the appellate court here found that the testimony of the experts had provided an adequate foundation for admission of the scent identification evidence:
�We find that the trial court did not abuse its discretion in finding that the People laid an adequate foundation to admit the dog-scent identification evidence through the testimony of its expert witnesses: Dr. Kenneth Furton, a professor of Chemistry and Biochemistry; Rex Stockham, an FBI supervisory special agent who is the forensic canine program manager and research program manager for the evidence response team unit; and Ted Hamm, a civilian contract canine handler primarily employed by the Los Angeles County Sheriff's Department and Bojangles's handler and trainer.�
Hamm and Bojangles
The defense objected that there were no negative scent pads used, i.e., negative controls or zero trials in which the dog was scented on a pad unconnected with the case to verify that the dog would not start tracking if there was no scent related to the pad to be followed. One of the experts described his use of a negative scent pad to ensure his dogs are working properly, before the actual trailing is done. The court rejected this argument as follows:
�Using such �controls,� however, is not common practice, and the only law enforcement agency that uses controls is the FBI. Hamm's failure to use a negative scent pad did not therefore establish that the procedure he used was a bad practice.�
Hamm is familiar with negative controls. In a 2005 case, the Los Angeles Superior Court cited several experts (including Stockham) regarding the value of negative controls and said that Hamm, a handler in that case as well, �uses negative checks and Knight responds reliably.� People v. Salcido, Docket No. GA052057 (Los Angeles Superior Court 2005). The authors are aware of law enforcement agencies other than the FBI using negative controls, but perhaps the court is correct as to California police practice.
The defense also argued that Hamm�s procedures were faulty because he only used one dog, not two. The court also rejected this:
�Stockham, however, merely testified that while he prefers to use more than one dog in his investigations, he uses single dogs too. Stockham did not testify that the only generally accepted practice is to use two dogs. In fact, Stockham praised Hamm as �very competent� and in the �top echelon of experienced handlers in the U.S.� He considers Hamm to be a leading expert in scent trailing.�
In a properly conducted scent lineup, it is our opinion that several dogs increase the reliability of an identification. (See draft paper of Ensminger, Jezierski, and McCulloch, pp. 58-63, describing how requiring three or more dogs for a positive identification significantly reduces the number of identifications, but also reduces the chance of a misidentification almost to zero).
The defense then argued that a finding of adequate training and reliability could not be made because Bojangles was not certified. The court rejected any certification requirement, and concluded that one of the experts in the case, Furton, though mentioning certification, had not meant that it was required:
�Defendants incorrectly assert that Dr. Furton testified that a dog must go �through certain blind tests and reach a set percentile of correct identifications� to be certified in California. What Dr. Furton actually said was a California organization he belongs to requires a training log, blind tests, and a certain percentile of correct identification to certify a dog; he did not testify that California has a certification standard or process. Rather, there is no national standard for certification or training of scent dogs, and standards vary from state to state. Neither California nor the Los Angeles County Sheriff's Department have requirements for certifying trailing dogs. The Scientific Working Groups on Dogs and Orthogonal Detection Guidelines (SWGDOG), an international working group funded by the FBI, is developing best practice certification and assessment guidelines for police-related canine disciplines.�
Hamm is presumably not opposed to certification. In Salcido, he used a dog named Knight that had been certified in 1998, apparently with the California Bloodhound Handlers Coalition, though Hamm did not purchase the dog until 2000. The court then summarized the position of another expert, Rex Stockham of the FBI, regarding training and certification:
�Although there are no national or specific state standards for training or certifying a scent dog, Stockham described his training process and how he determines a dog's reliability. Stockham keeps detailed training records to compare and contrast the milestones a dog should reach. To determine a dog's reliability, he relies on frequent observation of teams and blind testing, which the FBI routinely conducts. Before Stockham considers deploying a dog for a job, he subjects it to a series of tests and controls. The �best practice� is for someone not routinely involved in the dog's training to assess its readiness for fieldwork. But a dog's handler also has the ability to determine whether the dog is positively or negatively trailing a scent. Once a dog is ready for fieldwork, the dog still requires maintenance training, and the industry standard is a scent dog should have 16 hours of maintenance training, although some people in the field believe that once a month is sufficient.�
Although some of Stockham�s comments would seem to provide a model different from what Hamm actually used, there was no further discussion of the disparity.
The defense also pointed out that Hamm had lost training logs dated before 2008 in a computer crash and argued that this meant that �Bojangles�s training and abilities were merely anecdotal.� The court responded:
�We disagree. Hamm testified extensively and specifically about his and Bojangles's background. Hamm has trained bloodhounds for 21 years and participated in over 2,000 investigations. He begins training a dog when it is a puppy. The dog first watches a person run away and then follows. Then the person drops an object that has his or her scent on it. Eventually, the person goes out of the dog's sight, and the dog must transition from visually following the person to using its nose to find the person. The length, age, and complexity of the trail is slowly increased. Hamm also works blind, meaning he doesn't know where the person is or what the result should be. The training process takes about two years, although a dog continues to do maintenance training even after it is ready to work. He tries to do maintenance training at least once a week and more often if he is able.�
Hamm is no doubt busy. In a 2008 opinion, the court cites the trial court�s description of Hamm as having been involved in 1,200 cases. People v. Alonzo, 2008 WL 2248628 (Ct. Appp. 2008). This suggests that Hamm works on at least 200 investigations a year, a significant number for a contract worker.
The absence of training records is not made trivial by a restatement of the training procedures preferred by the handler of the dog. Hamm has testified in many cases, and it would seem likely that prior records might have been introduced in other cases where he testified, but this possibility was not discussed. The court continued regarding Hamm�s training regimen:
�Hamm trained Bojangles in this manner, on trails fresher than 48 hours, to discriminate between human scents and to identify only the scent he's given. Bojangles has also been trained in different environments and on different surfaces. He's been trained with the STU and on a variety of scent articles, including spent cartridge casings. Bojangles frequently participates in a weekly maintenance training session. Hamm has been doing casework with Bojangles for three or four years with no history of falsely identifying targets in either blind testing or casework. Bojangles has confirmed cases, which are cases in which the dog's conclusion is confirmed by other sources, for example, witness statements, confessions, and DNA. To Hamm's knowledge, Bojangles has no confirmed negatives, where the dog found a scent and trailed to a subject who did not match the scent.�
The court apparently accepted Hamm�s testimony that Bojangles had �no history of falsely identifying targets,� and that �[t]o Hamm�s knowledge, Bojangles has no confirmed negatives.� Not many handlers could say this about the entire history of any dog. A footnote explains that �Hamm has been able to confirm approximately 40 of Bojangles�s cases out of 300.� This meant that the defense apparently had access to about 13% of the dog�s field work.
The defense also argued that there was no evidence that a bluetick coonhound had particular scent abilities. Here, the court correctly observed that �to the extent a dog�s breed is related to its ability to discriminate scents, there has been an insufficient foundation�.� Coonhound mixes have been effective trackers since the nineteenth century.
Thus, the defense had no access to a significant part of the dog�s training history or to the vast majority of its field work. Consequently, neither did the experts. A good part of the prosecution�s case, therefore, rests on the testimony of the handler, to which the court was quite receptive.
A Florida court recently excluded canine evidence where adequate field records could not be supplied (though the records there were more substantial than those available here), stating that if �an officer fails to keep records of his or her dog's performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs.� We suggested in that context, which could have involved the exclusion of evidence in the future from a large number of canine teams that had no advance notice that additional recordkeeping would be required, that the Florida court should perhaps have fashioned some interim means of qualifying a dog. The solution in the case here would have been to allow independent testing of Hamm and Bojangles prior to the admission of the canine evidence. We suggest that, if such an approach were accepted, the testing should consist of an independently monitored scent lineup, since duplicating conditions on the third floor of the Pasadena Police Station would be impossible with any scientific objectivity.
Human Scent
The court then discussed the uniqueness of human scent, the ability of dogs to pick up scent from an object, and the ability of dogs to differentiate multiple scents on an item. Relying primarily on the experts, the court correctly determined that these elements were supported by scientific findings as accepted by prior California cases.
Instruction to the Jury
California provides for standardized instruction in tracking cases, and the CALCRIM No. 374 was used for this purpose:
�You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you rely on dog-tracking evidence, there must be, one, evidence of the dog's general reliability as a tracker, and, two, other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [�] In deciding the meaning and importance of the dog-tracking evidence consider the training, skill and experience, if any, of the dog, [its] trainer or [its] handler together with everything else that you learned about the dog's work on this case.�
The defense pointed out that the case at hand was not a typical tracking case in that the dog did not follow a scent from the crime scent to a location where the defendant had been or was found, yet the instructions were issued without objection. The court acknowledged that the situation was not typical:
�Although CALCRIM No. 374 might seem more appropriate to [tracking situations], it is not inapplicable to a station identification. The instruction simply says that there must be �other evidence that the dog accurately followed a trail that led to the person who committed the crime.� (Italics added.) Bojangles smelled scent from the .32 caliber gun and trailed to Ruiz. Although there was no physical evidence that a .32 caliber gun was used during the crimes (only nine-millimeter bullets and casings were recovered from the crime scene and from the victims' bodies), Raeshal Shay testified that she might have seen two guns; hence, it was the prosecution's theory that Elias and Ruiz committed the crimes together and that there was a second gun, possibly the .32 caliber gun found at Ruiz's girlfriend's house. The dog-scent evidence therefore merely connected Ruiz to the .32 caliber gun; there had to be other corroborating evidence that Ruiz was the person who committed the crime.�
The court found the �other corroborating evidence� in other testimony regarding the actions of the defendants, and after reviewing gang-related issues, affirmed the conviction.
A Hybrid Procedure?
There was far too little discussion of the station and parking lot identifications, and too little consideration of how they were conducted. A floor plan of the third floor of the Pasadena Police Station would have been helpful in determining what sort of tracking was really involved. How many rooms were on that floor? How many suspects were on the floor? If there were only a few suspects on the floor, then the possibility of cueing is not negligible. Did any officers on the floor, either with the defendants or otherwise, know why the dogs were working there? If so, the possibility of third-party cueing was present, a factor that scientifically conducted scent lineups remove by insisting that no one within sight of the dog know the correct station in a lineup.
If the dog was not trained with negative controls, it may have performed its work in expectation of a reward. How many individuals not in police uniforms and dressed as gang members were actually on the third floor that the dog could choose from? In a scent lineup, the possibility of randomly correct identification increases as the number of stations in the lineup decrease. Was this issue considered?
The tracking aspect of the procedure also needs to be explained in more detail. Did all the defendants on the floor use the same hallway and follow the same path except when entering separate rooms? Did any of the suspects enter any rooms where other suspects were placed, even if only temporarily? Did the dog use the same hallways and passages as the defendants? Did any defendant enter a room through a passage where the dog could not sniff? If so, this begins to look like a modified scent lineup rather than a modified tracking or trailing.
Was the procedure videotaped? Although scent lineups should, in our opinion, be videotaped, it is seldom practical to videotape a tracking or trailing. Here, however, given the limited space and the advance placement of the suspect, it would have been advisable to use video cameras. If this is to continue to be the Pasadena Police Department�s method of scent identification, stationery video cameras should be installed in the third floor in places that will capture the movements of the suspects as well as those of handlers and dogs.
The presence of other individuals than those directly involved in the identification should have been recorded. Certainly this would be required in a scent lineup. So who was present in the hallways? What did they know? Were doors to the rooms with the defendants open? Were all other doors on the floor open as well? Could individuals in the hallways see the dogs when they entered the rooms and presumably alerted to the suspects? If only the doors to the rooms with the defendants were open, there was little possibility for randomness in the dog�s indications.
There were other differences from tracking. In most tracking situations, the dog has the possibility of following a trail that ends with no suspect in the vicinity. The suspect may cross streams, enter cars, disappear in countless ways. There is a good chance that the dog will abandon the trail. The possibilities of what can happen in an outdoor tracking are often infinite. Here it appears the handler knew there was a correct choice to be made in a finite space, much as if the handler was guaranteed that one station in a lineup would be a positive match. This is another reason why some sort of negative control should have been performed, one where Hamm would not know that there was no match to be found on the floor, but where individuals who looked like suspects were present in some of the rooms.
Some research has indicated that a longer trail reinforces the dog�s ability to identify a suspect as the individual being tracked. (Police and Military Dogs, p. 62) The trails here were presumably very short. One study found that dogs often follow the correct trail but fail to alert to the correct party at the end. In one segment of that study, dogs followed the correct trail 100% of the time, yet alerted to the correct �suspect� only 73% of the time. Did Bojangles ever alert to anyone besides a suspect? Apparently not, yet the fact the defendants were accompanied by escorting detectives raises the possibility that the dog was not always tracking a defendant. Without a videotape the only witness whose testimony could be elicited on this question was apparently Hamm. Did defense counsel obtain detailed accounts from the defendants of what happened on the third floor of the Pasadena Police Station? Even if so, would they have understood that they were seeing an alert to someone besides themselves?
Hamm and the Pasadena Police Department have begun to use station identification as a procedure. This formalized station identification fits neither the parameters that are applied by SWGDOG or any certifying organization to a scent lineup or most tracking environments. The court rejected that the argument that the procedure used by Hamm had to be vetted as a novel scientific approach. That may be correct because it was an amalgam of two generally accepted procedures. Yet because it was an amalgam it must be analyzed for what it is, not assumed to pass as a tracking with insignificant variations.
Station identifications have often occurred accidentally. The trail goes cold, the dog stops tracking and is returned to the station, where a suspect has been brought in on other evidence, the dog picks up the scent inside the station and resumes tracking, then alerts to the suspect. Here this result was not accidental but expected.
Hamm and Pasadena police officials have used the third floor of the Pasadena Police Station before. See California v. Smith, 2011 WL 1350762 (Ct. App. 2011). Were the defendants put in the same rooms as those in prior cases? If so, this also raises the possibility that Hamm may have expected the defendants to be in certain rooms on the floor. Were these rooms ever sterilized? How often was the procedure on the floor being used? Could anyone be certain that odor from prior suspects was not still present?
There are reasons why scent lineups must be so rigorously conducted in order to be fair, and why their use in some countries in Europe (the Netherlands, Poland) has been so considerably restricted. Hamm�s station identification procedures were not required to meet any scent lineup standards because the court accepted that this was a tracking situation. Yet the variations from tracking were sufficiently great that it must be asked why scent lineups were not used, since these could involve parameters that would assure a high level of reliability.
Conclusion
The case is disturbing at a number of levels. The court affirmed the reliability of Bojangles based on the handler�s description of the dog�s history, without either adequate training or field records, or any certification of the handler and dog as a team. Although the court was correct that certification can vary from state to state and organization to organization, the presence of records of a certifying organization could have been of considerable assistance in a case where the handler could offer only fragmentary records.
Station identifications have a legitimate place in American legal history, and have resulted in properly admitted identifications of suspects since at least 1918. Nevertheless, the Pasadena Police Department, with the help of California courts, has inappropriately elevated this procedure to a forensic technique. Significant differences of this formalized station identification from a typical tracking situation were ignored in this case, and have given the green light to further use of a procedure that fails to take into account the controls that can assure that a scent lineup is objective. California has here accepted an approach that may far too easily result in misidentifications.
It must be acknowledged that canine evidence is often important in drive-by shootings where witnesses can disappear for many reasons, and California is right to want to preserve the possibility of using this evidence. The solution is to adopt skillfully managed scent lineups, not to use a slapdash cross between tracking and scent lineups.
A larger concern is that if American law enforcement authorities continue to employ poorly designed scent identification techniques, the label of junk science that has been given by the Innocence Project and others to such techniques will stick after a few more reversals and there will be considerable pressure on U.S. courts to stop allowing scent identification altogether. Unfortunately, the junk science label is correct as to most--perhaps all--scent lineups described in any detail in American judicial opinions. It would be a shame to have such a wholesale rejection of scent identification since scent lineups can be made much more rigorous than has been true in the United States so far and could be a valuable forensic technique for law enforcement.
People v. Elias, B224372, 2011 WL 3949808 (Ct. App. 2011). It has been pointed out to us that we should note that this opinion has not been certified for publication and, under California Rules of Court, Rule 8.1115, may not be cited or relied on by a court or party except under limited exceptions. This rule has been the subject of considerable criticism. One commentator noted that "[t]here is no valid reason why litigants should not be able to let a trial judge or appellate justice know how their colleagues decided a case involving similar facts even if that opinion is unpublished." Keshavarzi, M. (May 7, 2010), Daily Journal. In any case, our criticisms are not part of a legal proceeding.
This piece was written by John Ensminger and L.E. Papet.
Tuesday, 18 October 2011
IT'S GOOD TO BE THE QUEEN!
IT�S GOOD TO BE THE QUEEN!
Or
IS THERE LIFE AFTER A DOG FINISHES THEIR CHAMPIONSHIP?
A better question would be what becomes of a dog once she finishes her championship and she lives in the Cohen household? Chances are once a male becomes a champion and especially if he adds Select to his title, the German Shepherd population will know more about him than if it�s a bitch that has done the same thing. Of course if she becomes a top ROM producing dam then that�s another story. Ever wonder what becomes of some of these lovely girls that had such wonderful show careers? Well if she�s raised in the Cohen�s house (Lorraine and Marc) and her name is Select #2 Ch Cathelin Azeri of Hallmark one might find her sailing up and down the coast line of Washington. Or she might be accompanying Marc on one of his veterinarian lectures sitting right up on the podium next to him. After all she�s used to being put on display and the stares and smiles directed at her has all been shown to her before. She takes it all in stride and is more concerned about the dinner that she and Marc will be sharing back at the hotel later on. So if a bored yawn escapes her mouth, it�s not that she�s unappreciative of her adoring admirers, it�s just that she�s looking forward to a favorite treat that awaits her back in the hotel room.
Annie is the queen of the Cohen house and the other dogs (many of them being her kids and grandkids) know it and show her the respect that she�s grown accustomed to. Many of them are following in Annie�s illustrious show career with major points and Best in Futurity wins and class winners.
As much as Annie enjoys the comforts of her home or traveling with Marc on his lecture circuits, one of her passions has been those lazy days spending time sailing up and down the coastline of Washington where she resides. Although Annie is not the only dog in the Cohen household that has shared in this beloved sport of Lorraine and Marc�s, she usually accompanies them the most. It�s a privilege that she�s earned! The latest adventure found the Cohen�s and Annie sailing through the straights up to Canada. Lorraine told me that they ran into (or better put) ran away from a storm that was chopping up the sea that they set sail on. In typical Annie fashion, she took it all in stride. If it was good enough for her masters, then it was good enough for her as well.
Annie has her own life jacket and her infamous little red booties that she wears on those rougher days out at sea to help prevent her from sliding on the wet deck. She tolerates her embarrassing red booties surprisingly enough more than her constricting life jacket. I wonder what her show dog competitors would think of her walking around in red booties and a life jacket. Jeez!
Come dinnertime, a plate is set at the table for the Queen to join her masters as they discuss their day at sea. Lorraine swears that Annie understands many of their conversations. No matter how rough the seas can get, Annie never gets sea sick or nervous as the writer of this article would be! I guess that�s why she�s a true German Shepherd��she�s a brave little soul!
And what about when �mother nature calls?� Going potty on the deck of the boat is something that Annie refuses to do. She�s such a lady! Instead, she enjoys her little boat rides on the dinghy that takes her and Marc to shore. One would swear that she�s just looking for an excuse to feel the sand between her toes and run along the beach with Marc. Lorraine says that she loves it! Is this a dog that enjoys life or what?
Most days find Annie walking around up on deck taking in the sights and smelling the fresh air and sea water. Some days a stray seagull or two might hitch a ride to the sails of the �SV Gantman� (the name of the boat) to see what a German Shepherd is doing away from land. Once their curiosity is satisfied, they turn a disinterested eye away and fly beyond the horizon until Annie loses site of the feathered creatures.
Annie is eight years young now having just celebrated a birthday on August 17th. One would swear that she�s still a puppy the way that she �tells off� the resident dogs that live on the docks on boats with their owners. So this is when the �Queen� is put on a leash and hooked up to the �grab rail� down in the salon of the boat as they leave the docks. It�s as if she�s letting them know how special she is. I guess she forgets that she�s no longer home ruling her domain and these dock dogs aren�t at all impressed with her show dog titles. To them, she�s just another one of those loud, boisterous German Shepherds trying to push her weight around. They are most thankful when the �SV Gantman� prepares to set sail with �that dog of theirs.� A male dog lifts his leg to relieve himself where their boat was docked as if saying �Bon Voyage Ms. Show dog!� And as they further drift out to sea, one can still hear Annie in the belly of the boat barking in defiance at the dock dogs� indifference to her!
I was delighted to meet Annie in person when I shared a room with her owner Lorraine at the 2005 National where I saw this beautiful representative of the breed deservingly take her Select 2 title! Annie is everything that a German Shepherd should be. Besides her successful show career and her equally impressive offspring, Annie is the type of dog anyone would be happy and proud to own. She�s beauty, brains and bravado all wrapped up in one tightly neat little black and red package!
Back at the Cohen�s house bed time can prove challenging for Marc as sometimes he finds himself in the awkward position of �asking� Annie if she doesn�t mind moving her little body over so he can climb in as well. Oh it�s not that she�s selfish, but if she gets into bed first then she�s claimed that spot as her own for the night and �those other two� have to scramble to find a comfortable spot of their own. Did I say already that Annie is one smart canine?!
Annie is retired from the show ring now and lives a very happy and content life��..�You think?�
My rating: Living, loving and playing with your German Shepherd: (4)
Or
IS THERE LIFE AFTER A DOG FINISHES THEIR CHAMPIONSHIP?
A better question would be what becomes of a dog once she finishes her championship and she lives in the Cohen household? Chances are once a male becomes a champion and especially if he adds Select to his title, the German Shepherd population will know more about him than if it�s a bitch that has done the same thing. Of course if she becomes a top ROM producing dam then that�s another story. Ever wonder what becomes of some of these lovely girls that had such wonderful show careers? Well if she�s raised in the Cohen�s house (Lorraine and Marc) and her name is Select #2 Ch Cathelin Azeri of Hallmark one might find her sailing up and down the coast line of Washington. Or she might be accompanying Marc on one of his veterinarian lectures sitting right up on the podium next to him. After all she�s used to being put on display and the stares and smiles directed at her has all been shown to her before. She takes it all in stride and is more concerned about the dinner that she and Marc will be sharing back at the hotel later on. So if a bored yawn escapes her mouth, it�s not that she�s unappreciative of her adoring admirers, it�s just that she�s looking forward to a favorite treat that awaits her back in the hotel room.
Annie is the queen of the Cohen house and the other dogs (many of them being her kids and grandkids) know it and show her the respect that she�s grown accustomed to. Many of them are following in Annie�s illustrious show career with major points and Best in Futurity wins and class winners.
As much as Annie enjoys the comforts of her home or traveling with Marc on his lecture circuits, one of her passions has been those lazy days spending time sailing up and down the coastline of Washington where she resides. Although Annie is not the only dog in the Cohen household that has shared in this beloved sport of Lorraine and Marc�s, she usually accompanies them the most. It�s a privilege that she�s earned! The latest adventure found the Cohen�s and Annie sailing through the straights up to Canada. Lorraine told me that they ran into (or better put) ran away from a storm that was chopping up the sea that they set sail on. In typical Annie fashion, she took it all in stride. If it was good enough for her masters, then it was good enough for her as well.
Annie has her own life jacket and her infamous little red booties that she wears on those rougher days out at sea to help prevent her from sliding on the wet deck. She tolerates her embarrassing red booties surprisingly enough more than her constricting life jacket. I wonder what her show dog competitors would think of her walking around in red booties and a life jacket. Jeez!
Come dinnertime, a plate is set at the table for the Queen to join her masters as they discuss their day at sea. Lorraine swears that Annie understands many of their conversations. No matter how rough the seas can get, Annie never gets sea sick or nervous as the writer of this article would be! I guess that�s why she�s a true German Shepherd��she�s a brave little soul!
And what about when �mother nature calls?� Going potty on the deck of the boat is something that Annie refuses to do. She�s such a lady! Instead, she enjoys her little boat rides on the dinghy that takes her and Marc to shore. One would swear that she�s just looking for an excuse to feel the sand between her toes and run along the beach with Marc. Lorraine says that she loves it! Is this a dog that enjoys life or what?
Most days find Annie walking around up on deck taking in the sights and smelling the fresh air and sea water. Some days a stray seagull or two might hitch a ride to the sails of the �SV Gantman� (the name of the boat) to see what a German Shepherd is doing away from land. Once their curiosity is satisfied, they turn a disinterested eye away and fly beyond the horizon until Annie loses site of the feathered creatures.
Annie is eight years young now having just celebrated a birthday on August 17th. One would swear that she�s still a puppy the way that she �tells off� the resident dogs that live on the docks on boats with their owners. So this is when the �Queen� is put on a leash and hooked up to the �grab rail� down in the salon of the boat as they leave the docks. It�s as if she�s letting them know how special she is. I guess she forgets that she�s no longer home ruling her domain and these dock dogs aren�t at all impressed with her show dog titles. To them, she�s just another one of those loud, boisterous German Shepherds trying to push her weight around. They are most thankful when the �SV Gantman� prepares to set sail with �that dog of theirs.� A male dog lifts his leg to relieve himself where their boat was docked as if saying �Bon Voyage Ms. Show dog!� And as they further drift out to sea, one can still hear Annie in the belly of the boat barking in defiance at the dock dogs� indifference to her!
I was delighted to meet Annie in person when I shared a room with her owner Lorraine at the 2005 National where I saw this beautiful representative of the breed deservingly take her Select 2 title! Annie is everything that a German Shepherd should be. Besides her successful show career and her equally impressive offspring, Annie is the type of dog anyone would be happy and proud to own. She�s beauty, brains and bravado all wrapped up in one tightly neat little black and red package!
Back at the Cohen�s house bed time can prove challenging for Marc as sometimes he finds himself in the awkward position of �asking� Annie if she doesn�t mind moving her little body over so he can climb in as well. Oh it�s not that she�s selfish, but if she gets into bed first then she�s claimed that spot as her own for the night and �those other two� have to scramble to find a comfortable spot of their own. Did I say already that Annie is one smart canine?!
Annie is retired from the show ring now and lives a very happy and content life��..�You think?�
My rating: Living, loving and playing with your German Shepherd: (4)
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