Seizure of Drugs in Plain View Was Legal, but Search Following Dog�s Alert Should Have Waited for Warrant (Not That It Mattered)

Officer Michael Sweeney saw Shayna Kline make a U-turn against a red light on Martinsville Road in Bernards Township, New Jersey. Kline later disputed that she had turned on a red light, saying that she had waited for the light to turn green. Sweeney pulled the vehicle over and approached the passenger side of the vehicle. Officer Kazinsky, also on patrol, pulled up in a separate patrol car. Kline argued at trial that her car was targeted because it had out-of-state plates and that Sweeney must have already called for backup even before stopping her because Kazinsky arrived so quickly.

Sweeney, using a flashlight, saw what he believed to be marijuana and tobacco on the floorboards of Kline�s vehicle. Marijuana often looks like dirt from a distance of several feet so there was likely a significant amount or portions of joints were visible.

Sweeney asked for the driver�s license, registration, and insurance card, but Kline could only supply a �photocopy like� identification card. The passenger only had a non-government identification card from Maryland. Kline was asked to exit the car. When asked for her Social Security number, she could not remember it. Although she said she had been dating her passenger, Vladimir Reynoso, for three years, she could not remember his last name. She did not make eye contact and appeared nervous. Questioned separately, Reynoso said he was not dating Kline.

After learning Kline�s license had been revoked, Sweeney separately secured defendant and Reynoso in different patrol cars. It�s not clear why Kline was not immediately arrested, allowing for a search incident to the arrest or an inventory search. In any case, Sweeney entered the vehicle and found pieces of marijuana, tobacco, and cotton balls. He detected a strong odor of marijuana from the trunk area, he later testified, though he did not put this information in the warrant application. Sweeney then sought consent to search the vehicle but Sweeney refused. Cotton balls are used in the drug culture, for cleaning spoons and needles, to add moisture to marijuana, etc., but it was not explained why they were in the car.

Patrolman Dockery, by this time the senior officer present, requested a �canine dog,� a redundant term that apparently was the court�s or a witness�s way of describing a narcotics detection dog. Since drugs had already been found, providing probable cause for further action, it is not clear why a dog was needed at this point unless it was to test the dog, or because there was some feeling on the part of the officers that they might not have been able to convince a court that drugs had, in fact, been in plain view.

The dog arrived and, according to the opinion, alerted to the presence of marijuana. Most likely the dog was trained to alert to more than marijuana, and arguably could have alerted to another odor, but marijuana was the only drug found. Kline again refused to consent to a search of the vehicle and was told that it would be seized and a search warrant sought. Kline and Reynoso were arrested and brought to Bernards Township Police headquarters. Officers went to the judge�s residence and she granted their warrant application. Drugs were subsequently found in the trunk.

Trial

At trial, the court accepted the police version of events and concluded that �the presence of marijuana � the conflicting stories from � defendant and Mr. Reynoso, and defendant�s nervous and evasive behavior in response to question,� meant that �Officer Sweeney had probable cause to search the passenger compartment of defendant�s vehicle.� The court also found that holding the defendants until the emergent judge made herself available at 7 a.m. was reasonable. The seizure of marijuana from the floorboards of the car was found to be justified under the plain-view exception to the warrant requirement.

The Supreme Court of New Jersey, in a case decided in 1983, had stated that there were three requirements to the plain view exception:

1. The police must be lawfully in the viewing area.
2. The officer has to discover the evidence �inadvertently,� meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.
3. It must be �immediately apparent� to the police that the items in plain view ere evidence of a crime, contraband, or otherwise subject to seizure.

New Jersey v. Bruzzese, 94 N.J. 210, 463 A. 2d 320 (1983). The appellate court in the current case, New Jersey v. Kline, No. A-6126-09T2, 2011 WL 557382 (Ct. App. 2011), determined that these requirements had been met, in that Sweeney (1) had articulable suspicion to make the stop and be within the viewing area, (2) did not know he would see marijuana when he got to the car, and (3) it was readily apparent that there was marijuana on the floor of the car.

The defendant testified that she had been in the gas station for 28 to 30 minutes before she tried to drive away. What was going during this 28 minutes, a time period that does not seem to have been controverted by the prosecution? It was certainly enough time for the police to choreograph the sequence of their actions after Kline began to drive away and should have been of considerable interest to defense counsel for arguing that the plain-view exception might not have been satisfied.

The trial court then concluded that exigent circumstances and probable cause had justified the search following the dog's alert.

Appeal

The appellate court concluded that the seizure of the marijuana from the floorboards was justified under the plain view exception to the warrant requirement. Nevertheless, this court stated:

�We disagree, however, with the trial judge's ultimate conclusion that based upon all of these circumstances, the subsequent warrantless search of the vehicle's interior and under the hood was justified. While there were sufficient facts, measured objectively, from which Officer Sweeney had probable cause to believe that evidence of a crime may be found in the car, the circumstances at that point were not exigent. Defendant's vehicle was not stopped in a high crime area�. Defendant and Reynoso were being detained by at least two, possibly four, Bernard's Township police officers when Officer Sweeney commenced his search of the vehicle's interior. The testimony also revealed that there was a prosecutor and a judge on emergent duty�. Moreover, although the judge inexplicably required the officers to wait until seven a.m. to obtain the search warrant, this delay was not unreasonable, particularly since defendants were in custody based upon the seizure of narcotics found in plain view. Therefore, making an application for a search warrant was not impractical�. Under these circumstances, beyond entering defendant's vehicle to retrieve the suspected marijuana observed in plain view on the floorboards, the search of the interior and under the hood of defendant's vehicle was not justified under exigent circumstances.

�Nonetheless, no drugs or other contraband were seized as a result of this illegal intrusion. Moreover, the search warrant subsequently issued was valid. The facts upon which the warrant was issued did not include Officer Sweeney's detection of a strong odor of raw marijuana upon entering the vehicle. Rather, the judge was advised of his observation of suspected marijuana during the course of a motor vehicle stop for a traffic violation, that defendant did not have a driver's license, and that the canine dog alerted to the presence of drugs from the exterior of the vehicle before entering the vehicle and alerting to drugs from the interior. Thus, the illegal search of the vehicle's interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant. Hence, there is no basis to reverse the order denying defendant's motion to suppress the evidence seized from the trunk.� (emphasis added)

The appellate court affirmed the trial court�s decision.

Open Questions

Since holding the defendants until a judge could be asked to issue a warrant was not unreasonable, and calling for the dog upon Kline�s refusal to allow a search was justified, it would appear that the dog�s sniff did not unreasonably prolong the stop or otherwise violate Kline�s rights. Why the dog�s alert did not provide sufficient probable cause for a warrantless search of additional parts of the vehicle and a full search of the interior was explained as coming after a point where there were no exigent circumstances, the car was not in a high-crime area, and a warrant could be obtained. Also, �the illegal search of the vehicle�s interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant.�

The attenuation reference is in need of more specificity since the court�s position could be interpreted as meaning that the search subsequent to the sniff could not fit within any extension of Caballes. (See U.S. v. Marquez, 2005 WL 455858 (3d Cir. 2005), citing Illinois v. Caballes, 543 U.S. 405 (2006), holding that an alert at the trunk of a vehicle established probable cause to search it and arrest the driver.) The reason that Caballes and its Third Circuit and New Jersey progeny could not apply should have received some attention.

Attenuation is applied in probable cause situations where �the connection between the lawless conduct of the police and the discovery of the challenged evidence has �become so attenuated as to dissipate the taint.�� Wong Sun v. U.S., 371 U.S. 471 (1963), quoting Nardone v. U.S., 308 U.S. 338 (1939). Thus, sufficient attenuation between an illegal search or seizure and later evidence does not require application of the exclusionary rule. Segura v. U.S., 468 U.S. 796 (1984). In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court elaborated that the �notion of the �dissipation of the taint� attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.� The illegal search, as to which the subsequent discovery of evidence must be attenuated for that subsequent evidence to be admitted, is the root of the poisonous tree as to which the subsequent evidence is fruit. See U.S. v. Dupree, 617 F.3d 724 (3d Cir. 2010). Here, the illegal canine search followed the initial plain-view seizure and presumably the question is whether this subsequent activity, having been declared illegal, would taint the warrant. The fact that no drugs or contraband were found in this second search was stated by the appellate court before mentioning that the warrant was valid. It is not clear whether drugs, if they had been found in this tainted search, would have been admissible though an inevitable discovery argument could have been made. Attenuation, in any case, would not help the prosecution here.

If the illegality of the search following the dog's alert is simply a determination that after the initial probable cause, the initial seizure, and the arrests, a warrant could have been obtained and further investigative procedures delayed until it was obtained, this raises additional questions. For instance, if the dog had alerted and plain view of the marijuana had not occurred until the search based on the dog�s alert began, could the dog-supported search have been continued? More specifically stated: if the hood or trunk had been raised because of an alert and drugs found, and the occupants arrested before an officer saw marijuana in plain view inside the car�say after the occupants had left it and shut the doors behind them, would searching the interior of the car have then required a warrant? It would seem so if the order of events can determine what supports a search, and conceivably the extent of a search in a vehicle that can have drugs in a number of places. Or should such a hypothetical reversal of the order of events be distinguished because the subsequent plain view of an officer involves no separate effort, unlike bringing a drug dog to a car? Answering such questions would provide additional understanding regarding the potential application of Caballes to real-world decision-making on the part of police.

It is to be noted that although the plain view exception might restrict a search or seizure to the area where illegal items were in plain view, this has not been held by some courts considering the extent of a vehicle search based on a sniff. See U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002) (alert at driver�s door justified search of trunk); Ohio v. Bolding, 1999 WL 334494 (Ct. App. 1999) (alert gives probable cause to search entire vehicle). For further discussion see �Specificity of Alert� in Police and Military Dogs, Chapter 8.

Conclusion

The lesson appears to be that the more reasons for probable cause the better because some may drop away through a court�s analysis of the circumstances. Watching a car for nearly half an hour in a gas station is a long time and suggests that the discovery of anything in plain sight might not have been particularly �inadvertent.� Perhaps this potential weakness in the police procedure explains why calling the dog was deemed necessary. Police are well advised to obtain a warrant as efficiently as possible once an arrest has been made, at least where evidence is in no danger of disappearing and a judge can be made available.

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

Federal Turf Wars Over How to Train Explosives Detection Dogs

On August 11, 2004, Attorney General John Ashcroft sent a memo to the Directors of the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) specifying that as �soon as practicable, all Department components that use explosives detection canines shall use only canines certified by ATF.�(1) This did not happen in the Bush administration, and seven years later in the Obama administration the FBI continues to use dogs not certified by the ATF.(2) While the turf war between the FBI and ATF has involved much more than dogs,(3) here we will focus on those aspects relevant to canine training and deployment.

From a fairly clear designation in 2004 of the ATF as the agency responsible for certification of explosives detection dogs, it now appears that both the FBI and ATF apply different philosophies with regard to training explosives detection dogs, and it is not clear that the Department of Justice still expects there to be any real amalgamation of canine functions. It may be that Justice has settled for relatively specific boundaries between the two bureaus that can at least keep their squabbling from being aired in public.(4)

An increasingly important player in the field of canine training is the Transportation Security Administration within the Department of Homeland Security. TSA�s power may become sufficiently great in the end that this agency will ultimately determine the most widely used parameters for federal explosives detection dog training.

ATF�s Odor Recognition Proficiency Standard

The Omnibus Consolidated Appropriations Act of 1997(5) had authorized the Secretary of the Treasury to establish a standard for explosives detection canines to be employed by federal agencies or other agencies providing explosives detection services at airports in the U.S. At the time, ATF was in the Department of Treasury, but was transferred to the Department of Justice in 2003. Section 653(a) of the Act provided: �The Secretary of the Treasury is authorized to establish scientific certification standards for explosives detection canines, and shall provide, on a reimbursable basis, for the certification of explosives detection canines employed by Federal agencies, or other agencies providing explosives detection services at airports in the United States.�

Treasury designated ATF with the responsibility of developing the standard.(6) In 1999, ATF noted that it had provided copies of the odor recognition standard to �all interested persons� and that it had �solicited input and recommendations from other Federal law enforcement agencies that use explosives detection canines.� On March 10, 1999, the Oak Ridge National Laboratory, managed by Lockheed Martin Energy Research Corporation for the U.S. Department of Energy, issued a final report concluding that ATF�s odor recognition proficiency standard was �valid for the measure of the proficiency for detecting explosives odors at the recognition and alerting phase of training.�(7)

There does not seem to have been a problem until ATF was transferred to the Department of Justice on January 24, 2003, at which point it became apparent to ATF officials that the FBI was not accepting ATF�s mandate regarding explosives detection dogs for federal agencies.

2007 Agency White Papers

In 2007, the FBI and ATF developed �white papers� that were attached to an Explosives Review Group report to Deputy Attorney General Paul McNulty. It must have been obvious to McNulty and other DOJ officials that Ashcroft�s memo had not been implemented. The FBI�s white paper argued that:

� DOJ components should use only canines meeting Scientific Working Group on Dogs and Orthogonal Detection Guidelines (SWGDOG) Certification.
� The FBI should continue its joint training initiative on peroxide explosives scent training.

ATF argued that:

� All DOJ explosives detection dogs should be procured, trained, and certified by ATF.(8)
� Any training related to explosives detection canines sponsored, coordinated, or presented by DOJ components should be coordinated through ATF.

ATF was willing to agree that if an ATF-certified canine was not available, a DOJ component could, in the interim, use a dog trained and certified to standards set by SWGDOG.(9) The photograph is from ATF�s website, showing an ATF dog in training.

2009 Inspector General Audit

An audit report of the Department of Justice Inspector General released in October 2009 (�2009 audit report�) concluded that the FBI and ATF had failed to implement Ashcroft�s 2004 directive, and that the two agencies continued to disagree on the guidelines for training explosives detection dogs.(10) The report determined that �the FBI generally uses non-ATF certified canines.� A survey of FBI explosives specialists determined that more than 80% rarely or never used ATF-certified dogs, relying instead primarily on explosives detection dogs provided by state and local agencies that are often not ATF-certified. The FBI�s uniformed police use ATF-certified dogs, but FBI field divisions generally rely on state and local dogs or the explosives detection dogs actually owned by the FBI (numbering only four in 2009).

�Although the FBI and ATF agree that DOJ should have a single certification standard for canines, they disagree on the how the standard should be established. ATF developed the National Odor Recognition Training and Testing (NORT) program as a standardized method for assessing a canine�s ability to recognize explosives odors. NORT is a test administered by ATF forensic chemists to federal, state, and local canine teams.

�The FBI believes NORT may not actually assess the operational capabilities of the canine and that the certification standards should be determined by the Scientific Working Group on Dog and Orthogonal detector Guidelines (SWGDOG). SWGDOG is composed of members from federal, state, and local agencies, including both ATF and the FBI.(11) While SWGDOG is a non-certifying body that provides best practice guidelines, it anticipates that these best practices will be incorporated into participating organizations� certification standards."(12)

The Inspector General described the FBI and ATF as having �developed separate and often conflicting approaches to explosives investigations and related activities such as explosives training, information sharing, and forensic analysis.� The Inspector General warned that this continuing friction meant that the agencies might not meet the requirements of Homeland Security Presidential Directive (HSPD)-19 (February 12, 2007), �which requires a united, multi-layered strategy to mitigate the threat and prevent the use of explosives by terrorists.�

The Inspector General noted that despite ATF being responsible for certification of all DOJ explosives detection canines, �the FBI continues to disagree with ATF on canine certification standards. We also found that DOJ sent conflicting signals to the components, directing that one standard for training canines be administered through ATF, but also funding a working group seeking to adopt a different standard through the FBI and DOJ�s National Institute of Justice.� The working group is a reference to SWGDOG.

The FBI told the Inspector General that the HSPD-19 Implementation Joint Program Office (JPO) was designed to resolve issues not previously resolved through other mechanisms. Concerning this, the 2009 audit report stated:

"We found that the JPO was not designed to function as the deciding authority on roles and responsibilities for the FBI and ATF in handling explosives incidents, but instead was conceived to be a formalized, interagency discussion forum. Unless there is consensus among the agencies involved the JPO cannot force settlement between components. Therefore, while the JPO and its members may be used to assess and reflect community opinion and advise on priorities, individual agencies will continue to make programmatic and budgetary decisions independently."

The Inspector General found �no evidence that the FBI and ATF worked together to establish DOJ explosives training priorities, and the two agencies reached no consensus on the use of explosives detection canines.�(13) This was true despite the fact that the two agencies train dogs for similar, or at least overlapping, purposes.

"[E]xplosives specialists from both ATF and FBI are providing peroxide-based explosives detection training to state and local bomb squad canine teams and both components disagree about the standards that should be used to certify explosives-detection canines."

Other agencies, such as the Transportation Security Administration, work with both the FBI and ATF on canine issues:

"According to ATF, it began training explosives detection canines on peroxide-based explosives in 2002 after the ATF Laboratory worked with British authorities to develop an effective method of producing explosives used for training purposes. In 2006, the National Explosives Detection Canine Training Program, which is part of the Transportation Security Administration of the Department of Homeland Security, worked with the FBI to train canine teams to detect various peroxide explosives."

The Inspector General then detailed specific canine training issues on which the FBI and ATF disagreed:

�FBI explosives specialists told us they provide bulk (15-30 grams) samples of peroxide-based explosives to state and local canine handlers to sensitize their animals to the peroxide scent.(14) ATF also conducts similar training for state and local canine handlers with trace (5 milligrams) amounts of peroxide-based explosives.(15) ATF officials argued that the FBI should not be providing such training, saying that ATF�s method is superior because training with trace amounts of peroxides enhances the canines� ability to detect explosives. For example, because these explosives would generally be sealed in containers, the canine must be able to alert based on recognizing a trace amount of explosives left on a container lid or its scent on the potential bomber.(16)

�An FBI Explosives Unit official noted in a published FBI Bomb Data Center Investigators Bulletin that trace amounts, like those used by ATF, can be utilized to conduct training if suitable precautions are taken [citing FBI Bomb Data Center Investigators Bulletin 2006-3 entitled K-9 Detection of Peroxides]. However, the official noted that any time trace amounts of material are utilized, they are susceptible to contamination. For example, if the handler using these aids handles any other type of explosive or has an explosive residue near these aids, it is possible to introduce interfering odors. In addition, the FBI official contended that trace amounts of peroxides dissipate rapidly, and once exposed, have a very short shelf life.

�Despite these differing opinions, the differences between the FBI and ATF�s peroxide-based explosives training programs do not appear to be irreconcilable, and consolidation of the training standards should be possible. Therefore, we recommend the FBI and ATF consolidate the training for peroxide-based explosives.�

This means that in 2009, the Inspector General thought the canine training approaches of the FBI and ATF could at least be reconciled. It was not clear that this reconciliation would come about through any specific mechanism, but it appears the FBI, at least, had faith in the National Explosives Detection Canine Advisory Board (NEDCAB). Concerning this group, the Inspector General stated:

�[T]he FBI noted that the Department of Homeland Security (DHS) and DOJ will co-lead an interagency advisory board responsible for developing uniform standards for explosives-detection canine teams, including annual certification and recurring proficiency training. DHS and DOJ, building on the previous ATF National Canine Advisory Board, created the National Explosives Detection Canine Advisory Board [NEDCAB], which includes participants from major professional canine associations. The FBI believes that as a result of the creation of this advisory board for the first time, there is consensus across the explosives-detection canine community that national training and performance standards are needed.�

The Inspector General was not so sure that NEDCAB would be a final answer.

�As part of the JPO, the Department of Homeland Security (DHS) and DOJ are co-leading an interagency advisory board responsible for developing uniform standards for explosives-detection canine teams, including annual certification and recurring proficiency training. DHS and DOJ, building on the previous ATF National Canine Advisory Board, created the National Explosives Detection Canine Advisory Board, which includes participants from the four major professional canine associations. The FBI believes that as a result of the creation of this advisory board for the first time, there is consensus across the explosives-detection canine community that national training and performance standards are needed. We recommend that DOJ select and enforce a single standard for the use of certified canines for DOJ components, consistent with the requirements of HSPD-19.�

Upon release of the Inspector General�s report, FBI Assistant Director Michael Kortan and ATF Assistant Director W. Larry Ford issued a joint statement describing how the ATF and FBI have cooperated, including recommending for prosecution 192 explosive-related cases involving 397 defendants. Not surprisingly the joint statement said the two agencies are working �to resolve the identified issues to improve coordination and response to explosive incidents.�

GAO Reports

In a 2010 report,(17) GAO noted some differences between SWGDOG and ATF training, and also stated that the Transportation Security Administration�s dogs are following certification standards of ATF.

�While the mechanism of how canines detect explosives through their sense of smell is not well understood, there are several certification programs to validate the canines� ability to detect explosives, which include specifying standards for explosives detection. These standards vary based on which entity is certifying the canine. A guiding document on the training of canines is the Scientific Working Group on Dog and Orthogonal Detectors Guidelines that specifies recommended best practices for canine explosives detection. These standards call for an EDC to detect explosives a certain percent of the time and a probability of false alarms less than a certain rate. Certifying entities, however, may have more stringent standards. For example, ATF requires that its canines detect all explosives that are presented to them, and have limited false alarms in its tests. TSA requires that their certified canines find a specified percent of explosives in a variety of scenarios, such as onboard an aircraft, mass transit rail, and mass transit buses. Homeland Security Presidential Directive-19 tasks the Attorney General, in coordination with DHS and other agencies, with assessing the effectiveness of, and, as necessary, making recommendations for improving federal government training and education initiatives related to explosive attack detection, including canine training and performance standards. According to ATF officials, TSA, in coordination with ATF, is developing standards for EDCs, which are nearly complete and are similar to the standards that ATF uses�.

�Canines have a history of being trained to detect items and in recent years have been trained to detect, among other things, explosives, fire accelerants used in arson investigations, and drugs. While training methods differ among canine training schools, these methods typically train canines by rewarding them for locating certain items. Rewards include toys, a food treat, or the canine�s food itself. In turn, these canines are trained to alert their handlers if they detect an item of interest, usually by sitting down next to the item.�(18) (emphasis added)

Yet another GAO report stated that �[p]articipants in TSA�s Transit Security Grant Program and DHS�s Homeland Security Grant Program are required to maintain data to document compliance with guidelines for their explosives detection canine teams. These guidelines were developed by a scientific working group that included officials from DHS.�(19) This is another reference to SWGDOG, the standards of which could only with some stretch be said to be �similar to the standards that ATF uses.�(20)

2010 Protocol

In 2010, Gary G. Grindler, Acting Deputy Attorney General, released a protocol superseding all prior guidance on ATF-FBI explosives coordination, including, it would appear, Ashcroft�s 2004 memo. Grindler noted the respective capacities of the two agencies:

� ATF has 2,593 Special Agents trained in post-blast and fire scene investigations.
� ATF has 244 Certified Explosives Specialists who cover much of the country.
� The FBI has 143 Special Agent Bomb Technicians (SABTs).
� The FBI has 100 Joint Terrorism Task Forces (JTTFs) around the country staffed by federal, state, local, and tribal law enforcement agencies.

Despite these areas of competence, Grindler states that �the current situation�as chronicled by the Office of Inspector General�must be remedied.� Grindler then outlines guidance, beginning with domestic terrorism explosives investigations:

�I have concluded � that the FBI should ultimately be considered the lead agency for domestic terrorism explosives investigations�. Unless the matter of lead agency has otherwise been addressed between the ATF and FBI in a particular matter, the ATF will be the lead agency for explosives investigations where there is no credible nexus to international or domestic terrorism�.�

Grindler acknowledges that lead agency jurisdiction may shift during an investigation.

As to explosives training, Grindler notes that the FBI opened its Hazardous Devices School at the Redstone Arsenal in Huntsville, Alabama, while ATF has the National Center for Explosives Training and Research in Fort A.P. Hill, Virginia, and the Canine Training and Operations Support Center in Front Royal, Virginia. Grindler does not side with either agency on training, but directs �ATF and FBI to develop a joint plan for consolidated explosives training of ATF and FBI agents and technicians, and state and local law enforcement, that is consistent with this protocol.� A working group�was another working group really needed?�will be created to aid in this effort, which �should identify the cost savings that can be achieved by integration of training curricula and facilities.� Joint training should begin within six months of Grindler�s memo, i.e., by February 3, 2011.

The protocol attached to Grindler�s memo ends with an explanation of what is to happen henceforth in disputes between the FBI and ATF:

�If disputes arise relating to the operation of this protocol, the Deputy Directors from ATF and FBI shall meet in the first instance to resolve those disputes. If a matter cannot be resolved at the Deputy Director level, it should be brought to the Office of the Deputy Attorney General for resolution by the Explosives Coordination Committee.�

This sort of knocking of heads may work, but if so it would likely be because of Grindler�s direct influence, since preaching to the parties has not worked for the preceding six years.

2011 Developments

A 2011 GAO report on cost savings noted that since 2004, the Department of Justice �has taken actions intended to address duplication and overlap in the areas of explosives investigations jurisdiction, training, information sharing and use of databases, and laboratory forensic analysis.�(21) The GAO refers to the DOJ Inspector General�s 2009 report, noting how the problem has continued for years without resolution. Nevertheless, the GAO�s recommendation is no more than that the Department of Justice should continue to monitor the situation.(22) The GAO made no specific mention of canine training in this report.

An ATF Fact Sheet issued September 2011 reiterated ATF�s faith in its National Odor Recognition Testing Standard (NORT) and provided the following statistics:

"There are 29 ATF�trained explosives detection canine teams with ATF special agent canine handlers. Also, there are currently 122 ATF�trained explosives detection canine teams deployed throughout the United States with local, state or other federal agencies. In addition, there are 61 ATF�trained accelerant detection canine teams currently active in the United States and one in Canada�.

"Since 1991, ATF has trained 708 explosives detection canines and 157 accelerant detection canines. These dogs and their ATF�trained handlers are located throughout the United States in local police and fire departments, fire marshal offices and federal and state law enforcement agencies. Teams are also located in 21 foreign countries�. The canines are capable of detecting 19,000 explosives compounds."

Needless to say, ATF did not mention the doubts expressed by the FBI to the DOJ Inspector General regarding the NORT program in 2009.

Enter the Department of Homeland Security

Wind the clock back to 2006 when Congress was grappling with ways to turn the 9/11 Commission Report, issued in 2004, from policy perspectives and general recommendations into legislation. In the Implementing Recommendations of the 9/11 Commission Act of 2007,(23) Congress authorized the Department of Homeland Security to create the National Explosives Detection Canine Team Training Program, and provided that this authority would extend well beyond TSA:

�Based on the feasibility in meeting the ongoing demand for quality explosives detection canine teams, the Secretary shall establish criteria, including canine training curricula, performance standards, and other requirements approved by the Transportation Security Administration necessary to ensure that explosives detection canine teams trained by nonprofit organizations, universities, and private sector entities are adequately trained and maintained.� (6 U.S.C. 1116(c)(1))

The Secretary of Homeland Security is to �coordinate with key stakeholders, including international, Federal, State, and local officials, and private sector and academic entities to develop best practice guidelines for such a standardized program, as appropriate.�

The legislative history provides limited perspective on what Congress was thinking about with regard to the TSA program:

�The Conferees recognize that explosives detection canines are not trained to additionally detect chemical, nuclear or biological weapons and that, at present, such teams cannot detect radiological materials. Further, the Conferees recognize that canines are trained to detect specific threats and cannot, at this time, effectively be crossed-trained to identify multiple threats. In requiring the TSA to develop canine training curriculum and performance standards under this section, the Conferees expect TSA to do so for those threats within the definition that are currently applicable to canine team detection. However, the Conferees trust that TSA will explore opportunities to train and/or acquire canines that are able to detect new and emerging threats, such as chemical, radiological, nuclear and biological weapons. To that end, the Conferees expect that prior to developing and distributing canine training curriculum and performance standards under this section, TSA will fully vet any ongoing training, whether domestic or international, that has a proven method to successfully detect those additional threats that may not currently be applicable to TSA-trained canines.�(24)

The legislative history is largely restricted to transportation issues, but does say that the Secretary of Homeland Security �may use the canine teams on a more limited basis to support other homeland security missions, as determined appropriate.� Had Congress considered that it had previously designated ATF with overall responsibility for explosives detection canine training in the 1997 Appropriations Act, this would have been the place to mention it, because the 9/11 legislation effectively meant that two federal agencies had been blessed by Congress with significant authority over explosives detection work with dogs.

The 9/11 Act led to no regulatory releases, though the Federal Register in 2009 referred to the National Explosives Detection Canine Team Program, which noted that survey data was being �collected electronically through the NEDCTP secure Canine Web site (accessible by authorized personnel only)� to provide feedback to the Chief of NEDCTP, �staff and supervisors on how the training material was presented and received.�(25) The TSA described NEDCTP as follows in March 2009:

�The National Explosives Detection Canine Team Program (NEDCTP) is a partnership between TSA, airports, and local law enforcement. The NEDCTP supports TSA�s mission by preparing law enforcement canine-handlers, who are not Federal employees, and canines to serve on the front lines of America�s War on Terror. These canine teams (handler and canine) are trained to quickly locate and identify dangerous materials that may present a threat to transportation systems.�(26)

In July 2011, the Department of Homeland Security published a report indicating the Department�s intent regarding canine training and deployment:

�Establish DHS as a center of excellence for canine training and deployment. Canines serve essential roles in homeland security. Specially-trained canines and their handlers are essential elements of terrorism prevention efforts at the Federal, State, local, tribal, and territorial levels and in the private sector. Canines also serve essential roles in detecting narcotics at the air, sea, and land ports of entry, and in search and rescue activities following disasters. DHS will increase specialized breeding activities for canines, enhance its training and certification of canines and handlers, and become a center of excellence for employment of canines across the homeland security missions.�(27)(emphasis added)

Thus, the ultimate authority on the optimal methods of U.S. explosives detection canine training could now be the Department of Homeland Security, not an agency in the Department of Justice. Acting Deputy Attorney General Grindler�s resolution of the issue might not have been final, as DHS dogs were certainly beyond his jurisdiction.

A 2011 thesis by John P. Joyce at the Naval Postgraduate School in Monterey, California,(28) describes the TSA as having �partnered with the Federal Bureau of Investigation and National Institute of Justice to sponsor the Scientific Working Group on Dog and Orthogonal Detection Guidelines (SWGDOG) to enhance the performance of the EDCTs [Explosive Detection Canine Teams] �. The SWGDOG was established in January 2005 in an effort to develop consensus-based guidelines that can be shared across all groups involved in canine detection work�.�(29) Given DHS�s interest in expanding the impact of its canine training, this may mean that by 2011 TSA was siding more with the FBI on canine issues than with the ATF.(30) It may be argued (and certainly would be by anyone in the press office of either agency) that DHS and the FBI (or DOJ) will see no need to carry on the same sort of turf war as has been the case between ATF and the FBI, but government agencies seem to have an inevitable instinct for defending their authority.

Website Claims

The ATF webpage devoted to accelerant and explosives detection canines states the following:

�As the Federal Government explosives and postblast experts, ATF offers certified explosives detection canine to other Federal, State, local and foreign law enforcement agencies. ATF�s uses a food and praise reward training methodology that exposes canines to five basic explosives groups, including chemical compounds used in an estimated 19,000 explosives formulas. It is believed by ATF that exposing canines to various explosives from the basic explosive families will give the dog the ability to detect the widest range of commercial or improvised explosives possible when working in field. Successful detection of an explosive or firearm earn the canine a food and praise reward, which encourages repetition.(31) To earn ATF certification, all dogs must pass a blind test wherein they must successfully detect 20 different explosives odors, two of which they were never exposed to during training. The scientific methodology, and the training and testing protocols are certified by the ATF National Laboratory, and produce an extremely versatile, mobile, and accurate explosives detection tool.�

This does not read as though the agency has ceded authority to any other agency either within the Department of Justice or without.

The Transportation Security Administration is equally confident in the webpages devoted to its National Explosives Detection Canine Team (NEDCT) program:

�TSA's National Explosives Detection Canine Team Program prepares dogs and handlers to serve on the front lines of America's War on Terror. These very effective, mobile teams can quickly locate and identify dangerous materials that may present a threat to transportation systems. Just as important, they can quickly rule out the presence of dangerous materials in unattended packages, structures or vehicles, allowing the free and efficient flow of commerce.

�Law enforcement officers from all over the country travel to TSA's Explosives Detection Canine Handler Course at Lackland Air Force Base in San Antonio, Texas where they are paired with one of TSA's canine teammates. These dogs are bred specifically for the program by TSA's puppy program, also at Lackland AFB. German Shepherds, Belgian Malanoises, Vizslas and other types of dogs are used in the program because of their keen noses and affinity for this type of work. In addition to providing a highly trained dog and handler training, we provide partial funding for handler salaries, care and feeding of the canines, veterinary and other costs associated with the dog once the teams return to their hometowns.� (emphasis added)

The ability to provide �partial funding� is certainly proof of power. Lackland Air Force Base, sometimes called �Dog School,� is the largest canine training facility in the country, and the location where many military working dogs are trained. Thus, DHS is also likely using MWD training methods for domestic explosives detection dogs.

The FBI keeps a relatively low profile as to canines on its website, emphasizing its scientific approach to the use of canines. The website, on the other hand, has seven webpages that refer to SWGDOG (on November 22, 2011, in any case), more than any other federal website.

SWGDOG�s website states that the organization �is a collaboratively funded effort of the DHS, FBI, NIJ [National Institute of Justice], and TWSG [Technical Support Working Group].� Although the TWSG does have ATF connections, these appear to involve non-canine operations. SWGDOG has one representative from ATF, so it is not clear if the list of collaborative funders means merely that ATF does not now provide funding, or something more political.

If SWGDOG is to be granted such broad influence over federal canine policies, comments on proposed guidelines should be made public, and the organization should hold a public hearing before making any guideline final. Representatives of federal agencies intending to expect compliance with the guideline for purposes of contracting with private entities should be present and willing to answer questions regarding their interpretation of the proposal.

Is Uniformity Essential?

Divergence in training approaches is not necessarily a bad thing, despite the continuing concerns of the Department of Justice. Although the investigative authority of the agencies overlap, and any investigation could shift from one side to the other as new evidence concerning the perpetrators and targets develops, having dogs under different regimens, with different volumes of target samples, may to some extent make it difficult for criminals and terrorists to know how to hide their bombs. On the other hand, any approach that cannot be shown to be reliable should be jettisoned.

Conclusion

ATF has trained hundreds of dogs for its own agents and for other law enforcement units around the country. ATF has also partnered with a number of certifying organizations (USPCA, NAPWDA, IPWDA and NPCA) to achieve a consensus for canine explosives detection capabilities as part of the National Canine Initiative Explosives Detection Canine Certification. ATF has earned the loyalty of many explosives detection handlers around the country by having the agency�s chemists send highly sensitive peroxide-based explosives to events sponsored by such organizations.

The FBI relies on others to train its dogs (including the ATF, according to the ATF website), but has supported the development of SWGDOG, which seeks to become a standards authority for training and testing law enforcement canines in the United States (though many certifying organizations do not see SWGDOG as a resource, but more as a competitor).

TSA has control of Lackland Air Force Base, the largest canine training facility in the country, and has also supported SWGDOG. DHS also uses dogs in other subagencies, including U.S. Customs and Border Protection, the U.S. Coast Guard, FEMA, and the U.S. Secret Service. SWGDOG, by making DHS a fan, may have effectively won control of federal explosives detection canine standards.

It is unlikely that any of these agencies will easily give up its programs or sphere of influence, and since the canine programs of the agencies are connected with other aspects of their operations, it will be increasingly difficult to impose a policy of consolidation in training philosophies. DOJ may now be accepting a bifurcated canine philosophy in its ranks, hoping to minimize friction, or at least the public evidence of friction. DHS, through TSA, is unlikely to have to accept any DOJ approaches it does not like, both through sheer numbers and because of its robust budget.

1. In a March 4, 2004, memorandum, the Attorney General identified explosives-related training as an issue for an Explosives Review Group (ERG) to review. The report produced by the ERG had recommended that Department of Justice components should use only ATF-certified explosives detection canines.
2. The FBI had 15 dogs for its uniformed officers in 2010, while ATF had over 300 dogs worldwide. James W. Hawkins, Explosives Recognition and Awareness Training: A Psychological Approach to Pre-Blast Mitigation, Master�s thesis, Missouri University of Science and Technology, 2010).
3. Administrators inside of the government were well aware that the feud between the FBI and ATF continued after 2004. The Inspector General states that �in January 2007 the ERG [Explosives Review Group] reported to the Deputy Attorney General that training related to post-blast, canines, and render-safe procedures either had not been implemented or remained highly contested.�
4. It is appropriate to note that the issue does not have to do with the number of dogs owned by the agencies. The FBI had 15 dogs for its uniformed officers in 2010, while ATF had over 300 dogs worldwide. Hawkins (2010).
5. PL 104-208 (September 30, 1996).
6. 62 Fed. Reg. 50982 (September 29, 1997
7. 64 Fed. Reg. 41487 (July 30, 1999).
8. ATF maintains the Canine Training and Operations Support Branch in Fort Royal, Virginia. This facility develops explosives detection dogs for federal, state, and local agencies.
9. The 2009 report included information on the funding of SWGDOG, showing that it received funds from the National Institute of Justice and the FBI totaling just over $500,000 from 2004 through 2008.
10. U.S. Department of Justice, Office of the Inspector General, Audit Division, Explosives Investigation Coordination Between The Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, Audit Report 10-01 (October 2009).
11. The FBI has a member of the SWGDOG Executive Board, but ATF does not (board webpage checked 11/21/2011). ATF has a regular member. The Inspector General does not mention that there are also members selected from associations and other nonprofit organizations. The 55 SWGDOG members are listed on the organization�s website under the heading �Membership.�
12. The involvement of SWGDOG members in patent applications and other profit-making activities that may correlate with proposed standards has apparently not been of concern to the federal agencies.
13. Administrators inside of the government were well aware that the feud between the FBI and ATF continued after 2004. The Inspector General states that �in January 2007 the ERG [Explosives Review Group] reported to the Deputy Attorney General that training related to post-blast, canines, and render-safe procedures either had not been implemented or remained highly contested.�
14. SWGDOG�s standard SC8-Substance Detector Dogs: Explosives Detection states that �[m]inimum weight of substance odors being tested for certification shall be 113.4 grams (1/4 lb).�
15. ATF news releases often mention that ATF trainers use trace amounts of explosives. See ATF News Release, ATF Continues to Put Bite on Explosives (August 14, 2009).
16. Relationships of the agencies and organizations discussed here with individuals entities making private profit from canine scent detection approaches is a topic to be discussed separately.
17. GAO, Technology Assessment: Explosives Detection Technologies to Protect Passenger Rail, GAO-10-898 (July 2010).
18. Id., 40-41.
19. GAO, Maritime Security: Ferry Security Measures Have Been Implemented, but Evaluating Existing Studies Could Further Enhance Security, GAO-11-207 (December 2010), p. 32, n.38.
20. See TSA�s Explosives Detection Canine Program: Status of Increasing Number of Explosives Detection Canine Teams, GAO-08-933R (July 31, 2008).
21. Government Accountability Office, Opportunities to Reduce Potential Duplication in Government Programs, Save Tax Dollars and Enhance Revenue, GAO-11-318SP (March 2011).
22. The GAO emphasized coordination in following up on the protocol released by Grindler in a 2011 report. GAO, Law Enforcement Coordination: DOJ Could Improve Its Process for Identifying Disagreements among Agents, GAO-11-314 (April 2011).
23. PL 110-53, 121 Stat. 266 (August 3, 2007).
24. Conference Report to Accompany H.R. 1.
25. 74 Fed. Reg. 55248 (October 27, 2009); 75 Fed. Reg. 4579 (January 28, 2010).
26. 74 Fed. Reg. 9621 (March 5, 2009).
27. Department of Homeland Security (July 2010). Bottom-Up Review Report.
28. Joyce, John P. (March 2011). Thesis: The Transportation Security Administration�s Four Major Security Programs for Mass Transit�How They Can Be Improved to Address the Needs of Tier II Mass Transit Agencies. Naval Postgraduate School, Monterey, California.
29. Joyce cites the 2005 statement of David Kotny, Director of the National Explosives Detection Canine Team Program, to the Subcommittee on Management, Integration, and Oversight of the House Committee on Homeland Security.
30. DHS has a member on the SWGDOG Executive Board. In his thesis, Joyce found that some mass transit authority officials noted that dogs �trained in a closed and somewhat sanitized airport environment are not conditioned to operate in a mass transit environment, and therefore are not as effective as those trained exclusively on mass transit.�
31. Whether this five-component approach will in fact allow a dog to alert to any explosive containing one of the components is far from certain. There is evidence that different ratios in a mixture will affect a dog�s ability to recognize a component in the mixture. For a recent study on this issue in narcotics detection, see Macias, M.S. and Furton, K.G. (2011). Availability of Target Odor Compounds from Seized Ecstasy Tablets for Canine Detection. Journal of Forensic Sciences, 56, 1594-1600, noting: �MDMA solutions were analyzed by liquid chromatography�mass spectrometry. Analysis of these samples showed a wide variance of MDMA (8�25%). Headspace SPME-GC/MS analysis showed that several compounds such as 3,4-methylenedioxyphenylacetone and 1-(3,4-methylenedioxyphenyl)-2-propanol are common among these MDMA samples regardless of starting compound and synthesis procedure. However, differences, such as the level of the various methylenedioxy starting compounds, were shown to affect the overall outcome of canine detection, indicating the need for more than one MDMA training aid. Combinations of compounds such as the primary odor piperonal in conjunction with a secondary compound such as MDP-2-OH or isosafrole are recommended to maximize detection of different illicit MDMA samples.�

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

K9 Fraud! Essential Reading for Handlers, Lawyers, and Judges

A book that should be in every police canine handler�s library, as well as the library of every lawyer and judge who handles cases involving canine evidence, is K9 Fraud! Fraudulent Handling of Police Search Dogs, by Resi Gerritsen and Ruud Haak (Detselig Enterprises Ltd., Calgary, Canada, 2010). The authors are married and live in the Czech Republic near the Austrian border, where they are training directors for the International Red Cross Federal, the UN, the International Rescue Dog Organisation, and the F�d�ration Cynologique Internationale.

Gerritsen and Haak are also the authors of K9 Professional Tracking: A Complete Manual for Theory and Training (Detselig, 2001). With Adee Schoon, Haak wrote K9 Suspect Discrimination: Training and Practicing Scent Identification Lineups (Detselig, 2002). Haak is the editor of Onze Hond, one of the widely circulated dog magazines in Europe. In the interest of full disclosure, my book on service and therapy dogs was mentioned favorably in Onze Hond.

The subtitle of K9 Fraud! is somewhat unfortunate in its reference to police search dogs, as this might suggest to American readers that the book is about search and rescue operations. Most of the chapters actually discuss fraud in scent identification lineups and in tracking and trailing. An entire chapter is devoted to canine responsiveness to human gestures, which any lawyer, or any judge, dealing with a cueing claim should read. The publisher did not serve this important work well in failing to provide an index, and I found it necessary to use post-its to highlight pages I will want to refer to again.

Those who have read other books by these authors, and authors with whom they have associated, will find some of the material familiar, if not on occasion repetitive. The difference is that where the other books (at least the ones with which I am familiar) look at canine practice from the perspective of how to do it right, this book focuses on how it can be done wrong. I am inclined to think that the latter approach may be more necessary for lawyers and judges, particularly in the U.S. As I pointed out in recent discussions of a drug bust and a station identification, many American judges are still inclined to accept the work of canine handlers uncritically and do not adequately consider what might have been done wrong. In all fairness, I must acknowledge that some courts, such as the Florida Supreme Court, have begun to look past the mystique and require a solid foundation for the admission of canine evidence.

Gerritsen and Haak are not afraid to take on handlers by name, some of whom are prominent and spoken of with respect. Of course, these authors are writing from and probably more influential in continental Europe than in the U.S.

A Botched Murder Prosecution Leads to Blanket Exclusion of Lineups in the Netherlands
 
A murder investigation and prosecution led to the exclusion as evidence of scent lineups performed in the North and East Netherlands over a period of nine years because it was found that a critical requirement for performing a scent lineup had been ignored by police during this period. The mistake was regarded as so critical that six police dog handlers were sentenced to prison for two years. One of the cases that led to this exclusion is discussed by Gerritsen & Haak in detail.

Jacqueline Wittenberg, a rich old widow living in the Dutch town of Deventer was murdered on September 23, 1999, but was not found for several days. There were no signs of a break-in. It was known that she did not admit strangers to her home, and only admitted people she knew if she expected them. The last one to call her on the night of the murder was Ernest Louwes, her tax advisor. Louwes claimed to have been far from Deventer at the time the call was made. A telecom expert testified, however, that if Louwes had made the call from anywhere but Deventer, the call would not have been relayed through the telecom antenna in Deventer.

A knife was discovered two days later under a neighbor�s porch. The neighbor who found it picked it up with his sleeve to avoid leaving his own fingerprints on it. The knife was used in a canine scent identification lineup, resulting in the identification of Louwes as having left scent on the knife. In 2002, the Supreme Court of the Netherlands concluded that the knife had not been the murder weapon. Louwes was released in 2003.

DNA extraction from the blouse that Wittenberg was wearing when she was murdered again pointed to Louwes, however, and he was resentenced in 2004 to 12 years in prison. Suspicions regarding Wittenberg�s handyman and his girlfriend began to surface, however, and additional investigation brought to light a number of discrepancies in their earlier stories. Louwes was again released in 2009. Dutch law still considers Louwes to be the murderer, but a number of observers now doubt his guilt.

The fact that Louwes was identified in a scent lineup where a knife that was later found not to have been used in the crime has apparently never been explained.

Prosecution of Dutch Police for Scent Lineup Failures 

The paragraph following the description of the Deventer case by Gerritsen and Haak says much about why scent lineups have come into question in Europe, despite being in general much more rigorously performed there than in the United States:

�The seven police dog handlers of North and East Netherlands region were prosecuted for perjury and forgery, because it was found that they hadn�t performed the scent identification line-ups exactly in accordance to the regulations. According to these rules, the dog handler may not know the position of the scent carriers of the suspect, to avoid influencing his dog. This step was found to be omitted in many cases between September 1997 and March 2006. Even worse, was that the official reports stated that all identification line-ups were processed in compliance with the standard codes of operation. In November 2007, the seven police dog handlers were convicted to penal labor of 240 hours. Six of the seven handlers were also incarcerated for two years and were removed entirely from their positions. Only the dog handler that had shed light on situation was allowed to continue his duty.�

Whether SWGDOG guidelines should be recognized as U.S. national standards involves issues of transparency and delegation of regulatory authority. Even if such issues were overcome and there were some general recognition of SWGDOG as establishing best practices applicable in a broad range of criminal investigative contexts, it is unlikely that the organization would ever be the beneficiary of criminal enforcement for failures to implement its recommendations.

A Tool for Judges and Lawyers

In researching Police and Military Dogs, I found that early decisions from the end of the 19th and the beginning of the 20th century had a better feel for what dogs could do than more recent cases. Many judges of those times�particularly judges in the American South, where tracking largely began as a police function�were hunters and experienced with the tracking of animals. More recent decisions, in contrast, often showed undue deference to the testimony of handlers, or, alternatively, regarded canine evidence as being produced by silly animals, hardly worthy of the court�s time, dogs of the sort the judges saw in the elevators of their high-rise condo buildings. For a brief time I wondered if I could create a taxonomy of pro-dog and anti-dog judges based on their tolerance for and appreciation of canine evidence, but no clear pattern of this sort emerged as I read over 1,200 judicial decisions. What did emerge was that many judges failed to recognize the slow but steady progress that was being made in the practical applications of canine olfaction, and the decisions often lacked any real understanding of how dogs behave or the limits of their skills. Appellate decisions often avoided careful analysis of trial court failures by labeling as harmless the errors that appeared to have been made.

Another circumstance I noted as I researched police canine law was an increase in claims of ineffective assistance of counsel being made by defendants convicted in significant part by canine evidence. No law school that I am aware of offers a class in this increasingly active area of criminal law. Reading through the lines of opinions, it was often apparent that defense counsel was quite effective in raising procedural issues and in offering stiff resistance to most evidentiary aspects of the prosecution�s case, but cross-examination of police dog handlers was often anemic and missed apparent weaknesses in their testimony. Defense experts were chosen for some general canine expertise, or for superior academic credentials, but were often not versed in the areas where the prosecution�s case might have been vulnerable to a countervailing perspective. Lines of questioning often bogged down on issues that did not bolster any viable defense position, while other aspects of a handler's testimony remained unaddressed.

I should say that this lack of adequate legal attention to canine evidentiary issues also comes from those, such as the Innocence Project, who want to have police dog work labeled as �junk science� and excluded altogether. Here the weaknesses of judges and lawyers are being distilled into a knee-jerk battle cry against the acceptance of canine evidence at all.

I recommend that all these participants in the criminal justice system read K9 Fraud! before writing another brief, opinion, or press release.

Thanks to L.E. Papet and Gail McConnell for suggestions that improved this blog.

�Putative� Experts Don�t Impress Federal Judge, But Were Canine Issues Fairly Resolved by Summary Judgment?

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.

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.