The Dogs of the Conquistadors

Reading Dogs of the Conquest by John and Jeannette Varner reminded me of reading Dee Brown�s Bury My Heart at Wounded Knee almost forty years ago. After a while you just want it to stop. Every page in the Varners' book has a horror. Just one example:

�A letter of protest, dated June 4, 1516, from fourteen Dominican priests of Hispaniola [the island that now contains Haiti and the Dominican Republic] to a royal counselor related � how on one occasion some Christians [Spanish soldiers on the island] came across an Indian woman with a nursing child in her arms. Since their dog was hungry, they seized the child and tossed it to the dog, which tore it to pieces in the presence of the mother.�

One can find histories of the conquistadors with scant mention of the dogs they brought and bred in the New World. The Varners have brought the horrors perpetrated with the dogs into the light, just as Dee Brown made us see that settling of the West was also a genocide.

Dogs in Fifteenth and Sixteenth Century European Warfare

Large numbers of dogs were used in warfare from the late Middle Ages into the Renaissance. Before the age of exploration, the Spanish Christians had used dogs against the Moors (Varner & Varner, p. xvi). King Henry VIII was said to have sent hundreds of war dogs to the Emperor Charles V of Spain in a war with France, �each garnished with good yron collars� (Lloyd 1948, Weir 2002, p. 33).

An entry in the English State Papers of Elizabeth's reign for January 1599 includes a letter stating that "Essex's commission for Ireland is agreed on after many difficulties, but not signed. He is called Lieutenant, may return at pleasure, make barons, dispose of lands won from the rebels, &c.; he akes great provision for horses, and many are presented him.  They talk of taking over 200 or 300 mastiffs, to worry the Irish or rather their cattle."  An entry in the State Papers for April 29, 1598, but probably correctly 1599, states that the Earl of Essex left for Ireland with "12,000 men and 3,000 mastiff dogs" to deal with the Irish insurrection. This information may have been obtained from two captives of the Spanish.  Lloyd (p. 179) questions the historicity of this report. Taking 3,000 dogs would have been a massive undertaking.  It is possible that the captives were exaggerating, if not totally fabricating, knowing that the Spanish were accustomed to the use of war dogs and would find such numbers, if believed, quite discouraging.  

Jaques du Fouilloux, some of whose plates of hunting scenes have been reproduced in a prior blog, depicted an ancient voyage to Brittany by hunters who fled the flames of Troy, but instead of settling in Rome had gone to Bretaigne (Brittany), believing there would be good hunting there. This is the first plate above. As was true of Renaissance depictions of antiquity, the ships and clothing were contemporary, not ancient, and it is quite possible that du Fouilloux had seen Spanish, English, or French ships with war dogs pacing the decks.

War Dogs in the New World

Gonzalo Pizarro, brother of Francisco, brought as many as a thousand dogs with him in an expedition begun in Peru in 1541. This may be the largest assembly of attack dogs in history, but the Spanish had dogs they could use in battle against the natives as early as the second voyage of Columbus (Varner and Varner, p. 4, Coren, p. 74), who had brought Spanish war dogs to Hispaniola in 1493. Columbus used a dog in dispersing a hostile group of Indians that came to stop his landing in Jamaica in 1494. He used 20 dogs at the Battle of Vega Real in 1495, as shown in the plate from Herrera. (Only four dogs are visible, apparently an artistic limitation.) By 1509, dogs running loose on Hispaniola were so numerous that they were killing livestock and themselves began to be hunted.

The Historia General of the Spanish historian, Antonia de Herrera y Tordesillas (1601-15), may contain the most detailed images of dogs in battles between the Spanish and the Indians. The next plate from the cover of the first volume of the Historia General shows another scene in which the dogs are being sent ahead of the Spanish forces. One dog is still held by a leash, but the others have been loosed and are running simultaneously with the cavalry, perhaps in part to make it difficult for the Indians to choose a target. The dogs are not shown as armored in any of the scenes in Herrera's work, but this is generally the case in contemporary depictions of the conquistadors. The final plate from Herrera shows the dogs still on leashes at the center of the Spanish line, with cannons on the outside. Their release was timed for maximum effect both in terms of defensive value to the men and to add to the terror just before the contact of the front lines.

Why did the use of attack dogs reach its zenith in the New World? War dogs had been taught to attack the enemy since antiquity, but the numbers brought to and then bred in the New World far exceed what is known about any other military use of attack dogs. Why was it worth the while of the Spanish invaders to bring dogs for their explorations and subjugations? The answer probably lies in the fact that the Indians dressed differently from the Spanish, had different diets, different skin color, and at least initially a heart-stopping awe of the huge mastiff-like animals the Spaniards used against them. (Dogs were widely known in the New World, but those preferred by most Meso- and South American Indians were small dogs, such as the beautiful plate of an Aztec dog from the 16th century Florentine Codex of Friar Bernardino de Sahag�n.)

The contrast between the people who used the dogs and those against whom they were used differed from most European wars going back to antiquity where the armies dressed alike, had the same diets and skin color, and became indistinguishable in the field of battle. Like the elephants used by Hannibal and some Macedonian generals, dogs brought the risk that they could turn against those who employed them. That risk was minimal in the Americas and the advantage this provided was realized not just by the Spanish, but also by the Portuguese, French, English, and finally, during the period of slavery, the Americans.

The dogs were not always rewarded for their service. The same dogs that made the expedition of Gonzalo Pizarro so formidable gave up their lives when his army, facing starvation, ate all but two of them. (Markham, p. 17)

Care and Training

The dogs were of the late medieval hunting types�mastiffs, alaunts, and greyhounds�in Spanish, mast�ns, alanos, and lebrels. (For detailed descriptions of hunting dogs of the period, see Cummins 1988.) Varner and Varner (p. 36) note that even that dogs identified by the conquistadors as belonging to one group might well have had blood of others. Although greyhounds were often kept separate from other hunting animals in European castle life, it is not clear if such an effort was made in the New World. An Indian revolutionary known as Enrique, who was baptized by Spanish priests on Hispaniola but rebelled against his Spanish lords in 1519, was said to have kept dogs for hunting isolated and under the care of only two or three families. This might reflect an early Spanish practice of isolating dogs from natives so that they would not become friendly to those whose scent they were trained to track and attack. (Helps, vol. III, p. 106)

Aldrovandus (1522-1605) describes the training of war dogs as prescribed by Blondus:

�The dog ought to be trained up to fight from his earliest years. Accordingly some man or other is fitted out with a coat of thick skin [pelle densa], which the dog will not be able to bite through [quam canis lacerare nequeat], as a sort of dummy: the dog is then spurred on against this man, upon which the man in the skin runs away and then allows himself to be caught and, falling down on the ground in front of the dog, to be bitten [morderi patiatur]. The day following he ought to be pitted against another man protected in the same manner, and at the finish he can be trained to follow any person upon whose tracks he has been placed [super cuius vestigiis collocabitur]. After the fight the dog should be tied up, and fed while tied up, until at the finish he turns out a first-class defender of human being. Blondus is even of the opinion that from time to time it is a good thing to go for this dog with drawn swords [strictis mucronibus]; in this way, he thinks, the dog will develop his spirit and courage to the utmost; and then of course you can lead him against real enemies. And Blondus adds that such dogs are frequently to be met with in Spain of the present day [in multis Hispaniae locis hodie habentur].

Aldrovandus even says that a relative of his, a senator from Bologna, had such a trained dog for his defense. Since Aldrovondus was citing Flavius Blondus (1392-1453) for this training regimen, he could not have been describing the use of dogs in the New World. Although referring to this training as being for defensive purposes, the dogs could be used in attack situations and Blondus may have been describing dogs that were used against the Moors.

Dogs in Expeditions

In 1509, Alonso de Ojeda left Santo Domingo for Carthagena, with horses and dogs. The same year Juan de Esquivel attacked Indians that had fled to the mountains of Jamaica. The dogs he brought with him were said to be �almost as destructive as his musquetry.� (Long, p. 959) In 1513, Vasco N��ez de Balboa set out to find the �other sea,� the Pacific, with 190 men and dogs, �which were of more avail than the men.� (Helps, vol. I, p. 358) Encountering resistance from an Indian leader named Pacra, Balboa had him torn to pieces by dogs. Balboa had a dog named Leoncico supposedly able to distinguish between an �Indio de Guerra� and an �Indio de Paz.� Gonzalo Fern�ndez de Oviedo y Vald�s, the Spanish historian, gives a detailed description of the dog:

�We must not omit to mention a dog which Balboa possessed, called Leoncico [little lion], from the dog Becerrico [little bull], of the island of St Juan, and no less famous than his parent. This dog gained his master, in this and other entries, more than 2000 pesos of gold, because he received the share of a companion, in the distribution of gold and slaves. And truly the dog deserved it better than many sleeping partners. This dog�s instinct was wonderful; he could distinguish between the warlike or peaceful Indian; and when the Spaniards were taking or pursuing the Indians, on loosing this dog and, and saying, �There he is�seek him,� he would commence the chase, and had so fine a scent, that they scarcely ever escaped him. And when he had overtaken his object, if the Indian remained quietly, he would take him by the sleeve, or hand, and lead him gently, without biting or annoying him, but if he resisted, he would tear him in pieces. Ten Christians escorted by this dog, were in more security than twenty without him. I have seen this dog, for when Pedrarias came to this territory, in the year 1514, he was still alive.... He was of a red colour, had a black nose, was of a middle size, and not handsomely formed, but stout and powerful, exhibiting many wounds, which in the course of these wars he had received from the Indians. The dog was at last maliciously poisoned. Some dogs of his race were left; but nothing equal to him has been seen in these regions.� Oviedo�s General History, book xxix, chap. 8. (Hodson translation, p. 18) The wounds were most probably from arrows, which both a man and a dog can often survive.

Evidently, the teaching of the dogs to attack involved some repeated behaviors on the parts of those attacked, so that individuals not in certain postures or acting aggressively were not part of the attack command for the dogs.

In 1513, Balboa used his dogs to tear apart 50 Indians allied with the chief Torecha in the domain of Quarequa. This event led to one of the most widely produced depictions of war dogs in the New World, Theodore de Bry�s engraving of dogs attacking defenseless and nearly naked Indians. based on the account of Bartolom� de las Casas. After that, the barking of the dogs was often enough to disperse any group inclined to oppose Balboa�s advance. (Hodson, pp. 45, 54)


The dogs were not always effective. In meeting resistance from Indians at Santa Marta, now in Colombia, in June 1514, Pedro Arias de Avila, often known as Pedrarias, the dogs failed to attack the Indians and began fighting among each other (Varner and Varner, p. 47). Although hardly consistent in their opposition, the priests sometimes recognized that the dogs made their efforts at converting the natives more difficult. Father Domingo de Betanzos believed that the noise of weapons and the barking of fierce dogs �had so stunned the Indians as to render them deaf to the Christian Faith.� (Helps, vol. III, p. 312)

Mexico

Cort�s landed in Mexico with dogs and other animals, as shown above in a plate from the Florentine Codex by Friar Bernardino de Sahag�n. The Aztec account of the conquest of Mexico by Hern�n Cort�s in 1519 includes a description of the dogs running ahead of the column, their muzzles high, lifted to the wind, saliva dripping from their jaws. (Broken Spears, p. 41) Moctezuma was told that the Spaniards rode deer without horns, and he received an extensive description of the dogs:

�Their dogs are enormous, with flat ears and long, dangling tongues. The color of their eyes is a burning yellow; their eyes flash fire and shoot off sparks. Their bellies are hollow, their flanks long and narrow. They are tireless and very powerful. They bound here and there, panting, with their tongues hanging out. And they are spotted like an ocelot.�

An Aztec visual perspective on Cort�s�s dogs can be found in a mid-16th century painting on a large cloth panel, or lienzo, referred to as the Lienzo de Tlaxcala (Kranz 2007). The original lienzo is lost, but copies were made from the original, including the depiction here of soldiers marching with a dog on leash (Chavero 1892). The Aztecs were only familiar with smaller dogs (Valadez 2000).

As late as 1805, a Spanish Lieutenant, Antonio Narbona, entered the region of Arizona on a punitive expedition, with horses and dogs, an event captured in a Navajo pictograph at Standing Cow Ruin in Canyon de Chelly. Bones recovered from the area have been identified as coming from Spanish greyhounds (Dix 1980). Jett (1981) questioned whether the figures may all be of horses, displayed as smaller to give a distance perspective to the Spanish column. The smaller figures, however, appear riderless and unleashed, and the coloration could be that of Spanish dogs of the sort that in Louisiana founded the Catahoula breed. The picture of the rock art at Canyon de Chelly was taken by Cori Ryan, who maintains a website with many excellent photographs of rock art.

Note (2012). A picture of the assembly of figures contained in Thor Conway's Painted Dreams (1993) convinces me that all the figures are probably horses, though some are sufficiently eroded as to make certainty unlikely.

Peru and the Straits of Magellan

Olive trees were brought from Seville to Peru in 1560 but, as only three of 100 plants survived the journey, they were planted in a fruit garden near Lima. It was necessary to post 100 slaves and 30 dogs to guard the trees night and day. (Markham, 1864a, p. 401)

Pedro Sarmiento de Gamboa had dogs with him as he explored the Straits of Magellan in 1579. Gamboa�s brief narrative indicates he may not have expected his dogs to be excessively warlike:

�It was noteworthy that our dogs, and those of the natives, flew at each other until they came within four paces, when they turned round without touching, and we could never get them to attack again.� (Markham, 1895, p. 322)

After the Conquest

As the New World was subjugated, dogs began to take on less war-like responsibilities, and became pets of all members of the societies that emerged after the conquest. Felipe Guam�n Poma de Ayala (1535 - c. 1615) wrote an illustrated chronicle, Nueva Cor�nica y Buen Gobierno, showing daily life in the Andes. One plate shows the author walking near Lima with his son and two dogs, named Amigo and Lautaro, both from mastiff or possibly alaunt lines. The next plate below shows an Andean hunter with a falcon and two dogs. The dog behind the hunter is likely an indigenous small dog, but the one preceding him appears to have the blood of an alaunt or mastiff, probably having mixed with an indigenous line. The final plate shows a city, perhaps with hunting dogs running in the fields before the walls. (See Adorno 2000.)

Adoption of Spanish Practices in the Americas

Even after the conquest, the Spaniards were said to use their bloodhounds to track down natives for sport, or in order to train them to catch human game. By 1638, the Dutch used dogs against the Indians. (Southey, vol. III, p. 488). During the final Maroon War, which began in 1795, the Jamaican legislature sent to Cuba for large hunting dogs to seek out and destroy the blacks in their stronghold. (Long, vol. II, p. 79) The French employed Cuban dogs in a Haitian rebellion. (Childs, p. 42)

Benjamin Franklin recommended the use of dogs during the French and Indian War. In a letter to James Read of November 2, 1755, Franklin's detailed military advice includes the following observations:

"The 50 Arms now sent are all furnish�d with Staples for Sling Straps, that if the Governor should order a Troop or Company of Rangers on Horseback, the Piece may be slung at the Horseman�s Back. If Dogs are carried out with any Party, they should be large, strong and fierce; and every Dog led in a Slip-String, to prevent their tiring themselves by running out and in, and discovering the Party by Barking at Squirrels, &c. Only when the Party come near thick Woods and suspicious Places, they should turn out a Dog or two to search them. In Case of meeting a Party of the Enemy, the Dogs are then to be all turn�d loose and set on. They will be fresher and fiercer for having been previously confin�d, and will confound the Enemy a good deal, and be very serviceable. This was the Spanish Method." (emphasis added)

After the end of the war, Pennsylvania was still dealing with Indian raids, and a Une 4, 1764, letter preserved in Franklin's correspondence from Henry Bouquet to John Penn contains the following passage:

"I can not omit to Submit to your Consideration the use that might be made of Dogs against our Savage Enemies; It would be needless to expect that our Foot Soldiers can overtake an Indian in the Woods, and their audacious attempts in attacking our Troops and settlements may, in a great Measure, be ascribed to the certainty of evading our Pursuit by their flight: a few Instances of Indians Seized and worried by Dogs, would, I presume, deter them more effectualy from a War with us, than all the Troops we could raise, and as we have not in this Country the Species of those animals, which would best answer this Purpose, I beg leave to recommend it to you, to have Fifty Couples of proper Hounds imported from Great Britain, with People who understand to train and manage them. They might be kept on the Frontiers, and a few given to Every Scouting Party, to discover the Ambushes of the Enemy, and direct the Pursuit: This requires that the men intended to follow the Dogs should be well mounted."

The success of Cuban mastiffs in the Maroon War led to a recommendation to the American War Department in 1839 that they be used against the Seminoles in Florida:

�My object in this communication is principally to show how much benefit was derived in the Maroon war from the use of dogs, and to suggest to the War Department the propriety of turning its attention to similar means of prosecution of the war in Florida. I might deduce facts from the ablest writers in Ethics and International Law, to prove that the employment of these animals against the Seminoles, who have been guily of every enormity, would violate no moral duty; and the general tendency of events during the last two hundred years, goes to show that the transgressions of our red brethren, notwithstanding the declaration of enthusiasts, has attracted upon them the displeasure of the Almighty, as did the cities of the Plain and the people of Edom in days of old.� (Homans, p. 147)

Professor Matt D. Childs of the University of South Carolina notes that in the American Civil War, �Cuban dogs aided the Confederacy in its attempt at secession by pursuing runway slaves as battlefields reached the plantation zones of the South.� (Childs, p. 42) The post-Civil War use of the same tracking dogs in finding criminals is discussed in detail in Police and Military Dogs (Chapters 3 and 5).

Sources: 

1. Adorno, R. (2001). Guaman Poma and His Illustrated Chronicle from Colonial Peru. Museum Tusculanum Press.
2. Aldrovandi, Ulyssis (1645). De Quadripedibus. Translation from Ash, Edward C. (1927). Dogs: Their History and Development, vol. II. Ernest Benn Ltd., London.
3. Anderson, Fred. Crucible of War: The Seven Years' War and the Fate of Empire in British North America, 1754-1766 (indicating, at 809, that the British were familiar with the Spanish use of dogs against the Indians, where Henry Bouquet says of enemy Indians, "I wish we could make use of the Spanish methods, to hunt them with English dogs").See also note regarding Benjamin Franklin, below. 
4. Brown, D. (1970). Bury My Hart at Wounded Knee. Rinehart & Winston, New York.
5. Chavero, A. (1892). Explicacion del Linzo de Tlaxcala. In Homenaje � Crist�bal Col�n: Antig�edades mexicanas. M�xico: Oficina Tipogr�fica de la Secretar�a de Fomento.
6. Childs, Matt D. (2006). The 1812 Aponte Rebellion in Cuba and the Struggle Against Atlantic Slavery. University of North Carolina Press.
7. Conway, T. (1993). Painted Dreams: Native American Rock Art. NorthWord Press, Minocqua, Wisconsin.
8. Coren, S. (2002). The Pawprints of History. Free Press, New York.
9. Cummins, J. (1988). The Art of Medieval Hunting: The Hound and The Hawk. Weidenfeld & Nicolson. London.
10. Dix, A.S. (1980). Spanish War Dogs in Navajo Art at Canyon de Chelly, Arizona. The Kiva, 45(4), 279; (1983). More on Spanish War Dogs in Canyon de Chelly Rock Art: A Reply to Jett. The Kiva, 48(4), 323.
11. Espana, V.M., and Azua, R.V. (2003).  Los Perros de Guaman Poma de Ayala: Vision Actual del Estudio del Perro Precolombino Sudamericano. AMMVEPE, 14(2), 43-53. (This is a very important article that, unfortunately, did not come to my attention early enough, but which contains much thought that will be important for me to incorporate as I turn this blog into a chapter.)
12. Fontana, B.L. (2000). Pictorial Images of Spanish North America. Journal of the Southwest, 42(4).
13. Fouilloux, Jaques du (1502). La Venerie.
14. Franklin, B. Letter to James Read, Sunday, November 2, 1755. Correspondence, vol. 6. The Papers of Benjamin Franklin Sponsored by the American Philosophical Society and Yale University.
15. Helps, Arthur (1855). The Spanish Conquest of America. John W. Parker & Son, London.
16. Herrera, A. (1601-1615). Historia General de los Hechos de los Castellanos en las Islas y Tierra Firme del Mar Oceano. Madrid.
17. Hodson, Mrs. (1832). Lives of Vasco Nunez de Balboa, and Francisco Pizarro from the Spanish of Don Manuel Josef Quintana. William Blackwood, Edinburgh.
18. Homans, B. (ed.) (1839). Army and Navy Chronicle, vol. 9.
19. Jett, S.C. (1981). War Dogs in the Spanish Expedition Mural, Canyon del Muerto, Arizona? The Kiva, 46(4).
20. Kranz, T.B. (2007). Sixteenth-Century Tlaxcalan Pictorial Documents on the Conquest of Mexico. In Sources and Methods for the Study of Postconquest Mesoamerican Ethnohistory, ed. James Lockhart, Lisa Sousa, and Stephanie Wood (e-book). Eugene, Oregon: Wired.
21. Leon-Portilla, Miguel (1962). Broken Spears: The Aztec Account of the Conquest of Mexico. Beacon Press, Boston.
22. Lloyd, H.S. (1948). The Dog in War. In Vesey-Fitzgerald, B. (ed.). The Book of the Dog. Nicholson and Watson, London.
23. Long, Edward (1774). The History of Jamaica. London.
24. Markham, Clements R. (1864). Expeditions into the Valley of the Amazons. The Hakluyt Society; (1895). Narratives of the Voyages of Pedro Sarmiento de Gamboa to the Straits of Magellan. The Hakluyt Society; (1864a). The Travels of Pedro de Cieza de L�on, A.D. 1532-50. Hakluyt Society.
25. Morgan, L.H. (1881). Houses and House-Life of the American Aboriginees.  Washington: Government Printing Office.  (noting that the cacique, chieftain of a tribe near Ocute in present-day Georgia, gave many presents to Hernando de Soto, including "conies, partridges, bread of maize, two hens and many dogs.").
26. Prescott, William H. (1843). History of the Conquest of Mexico, vol. II. Richard Bentley, London.
27. Prescott, WIliam H. (1847). History of the Conquest of Peru, vol. I. Baudry�s European Library.
28. Southey, Robert (1810). History of Brazil. London.
29. Turbervile (1576). Booke of Hunting.
30. Valadez, R. (2000). Prehispanic Dog Types in Middle America. In Dogs Through Time: An Archaeological Perspective: Proceedings of the 1st ICAZ Symposium on the History of the Domestic Dog. BAR International Series 889.
31. Varner, John G., and Varner, Jeannette J. (1983). Dogs of the Conquest. University of Oklahoma Press, Norman.
32. Weir, A. (2002). Henry VIII: The King and His Court. Random House Digital. 
33. Worthington, B.E. (2008). An Osteometric Analysis of Southeastern Prehistoric Domestic Dogs.  Florida State University M.Sc. thesis. 

Thanks to Suzanne G. White, Richard Hawkins, and Brian Duggan for help in completing this blog. Thanks to Cori Ryan for the excellent photograph of the Arizona petroglyph.  Thanks to Professor Paul E.J. Hammer for leading me to additional sources regarding Elizabeth I's Irish War.

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.

Canoe Conquests of the Western Pacific: Who Brought the Dingo Ancestors, and Why?

That Australian dingoes descended from domesticated dogs was considered a possibility by Hamilton Smith (1856) more than a century and a half ago, and the first plate is one of several paintings of dingoes that he published in his volumes on dogs.

Edward C. Ash (1927, p. 24) described the dingo as follows:

�Canis dingo is smaller than the wolf, and has somewhat long legs. It stands 24 inches at the shoulder. The tail is bushy. There is a greyish under-fur, but except in the black variety, the long hairs are generally yellow or white. In the whole family there seems to be a natural tendency for the feet and end of the tail to be white. The muzzle is very often black. It is found in the wooded districts throughout Australia, and was at one time extremely numerous. It runs unlike dogs, the head held up, and the ears erect and forward. In its habit it is far more like the fox than the wolf.�

Genome studies have in fact established that dingoes and New Guinea Singing Dogs are dogs, not wolves or some separate species of canid, and are descended from lines once domesticated though long isolated on large islands. Dingoes and Singing Dogs have formed relationships with the indigenous peoples of Australia and New Guinea, but their separation from other dog populations is much more recent than the arrival of the aboriginal peoples and these connections are unlikely to continue prior domestication behaviors.

So when did dingoes arrive in Australia? When did New Guinea Singing Dogs arrive in New Guinea? Dr. Peter Savolainen and a team addressed this question in a short paper published seven years ago, and he and another team�this one headed by Mattias Oskarsson�have now looked at the issue again. They have also looked at the genetic overlap of dingoes with other dogs in Southeast Asia and the western Pacific.

The problem is to explain not only when dogs arrived on the islands, but also who brought them there. Thus, what the DNA says must be placed in the context about what is known of the cultures that settled on the islands, or at least stopped at them. That the dogs arrived in canoes is generally assumed from the distances involved (Horridge 1995; for depictions of dogs on the canoes that met Captain Cook, see Luomala 1962), but canoe cultures have been present in the western Pacific for thousands of years and making connections between genetic studies of dingoes and cultural anthropological findings remains elusive.

Unfortunately, at least for those looking for firm answers concerning the relationships of dingoes to humans, the paper by Oskarsson et al. may actually increase the number of possibilities concerning who brought the dingoes and when.

Ancient Dogs of Southeast Asia and the Pacific

Australia and New Guinea were colonized by hunter gatherers about 50,000 years ago according to Mulvaney and Kamminga (1999), who themselves cite Jones (1979). A 2002 radiocarbon study of Australian bones by Gillespie concluded that the �oldest occupation horizons in four different regions reliably dated by defendable multi-method results are in the range 42-48,000 calendar years ago.�

Oskarsson et al. note that by 30,000 years ago, colonization �had reached as far into Near Oceania as the Bismarck Archipelago and the western-most Solomon Islands.� Islands further east were not colonized until the Neolithic, which reached western Polynesia about 3,000 years ago and eastern Polynesia only 1,400 years ago.

Neolithic culture developed in the Yangtze Valley about 8,500 years ago, reached Taiwan by 5,500 years ago and Southeast Asia between 4,500 and 3,500 years ago. A �cultural complex� known as Lapita appeared in Near Oceania about 3,500 years ago and spread across Polynesia, reaching New Zealand by 1250 AD. (See Greenhill et al. 2010, discussing Austronesian expansion at 5,200 years ago.)

The dog appears in the archeological record of Australia about 3,500 years ago, where a pre-Neolithic culture received �virtually no influence from external sources.� Oskarsson et al. note that how �the dingo, as the single item of possibly Neolithic origin, arrived to Australia is therefore an enigma.� They note that the spread of dogs in Southeast Asia �in parallel with the spread of Neolithic culture is clearly indicated.�

Dogs were probably present in Taiwan by 4,500 years ago, yet the genetic results of Oskarsson et al. do not find a connection between Taiwanese dogs and the dingoes of Australia and New Guinea Singing Dogs. Bones of domesticated dogs have been excavated in Thailand from 4,000 years ago. (Higham 1996, p. 59, noting that �by at least 2000 B.C., people with dogs domesticated from wolves were already living in the Khorat pleateau.�) Bellwood (2005) describes the distribution of dogs with Austronesian culture:

�All of this leads to the fairly astonishing observation that, between 2000 and 800 BC, assemblages with related forms of red-slipped and stamped or incised pottery, shell artifacts, stone adzes, and keeping of pigs and dogs (neither of these animals being native in most of the regions concerned) spread over an area extending almost 10,000 kilometers from the Philippines through Indonesia to the western islands of Polynesia in the central Pacific.�

Theories regarding the spread of Austronesian culture generally break down to arguments that Austronesians spread out from Taiwan in a relatively short time frame, or that more complex interactions between Southeast Asian cultures and the Pacific Islands occurred over more protracted periods that may have involved a significant infusion from Taiwan. Language studies have pointed to Taiwan, but human DNA studies have found only a minor contribution from Taiwan, pointing instead to �a largely Melanesian ancestry for the Polynesian people.� Regardless of which approach is more descriptive of cultural expansion, the dingo remains a curiosity.

The 2004 study by Savolainen et al. found that pre-European dogs from across Polynesia carried only two haplotypes, and that the Australian dingo population �was founded from a small number of dogs carrying a single mtDNA haplotype (A29).� (See also vonHoldt et al. noting lower diversity of Australian dingoes and New Guinea Singing Dogs.) Two New Guinea Singing Dogs �were shown to carry haplotypes A29 and A79.� A29 is found among East Asian dogs, but is rarely found west of the Himalayas. This earlier study had concluded that dingoes arrived in Australia from 5,000 years ago and perhaps as far back as 10,000 years ago, substantially before the archeological record can verify. (See also Klutsch and Savolainen 2011.)

Mainland Roots of Dingoes

The 2011 study concludes that South China was the probable source population for dingoes and Singing Dogs. Although genetic overlaps of haplotypes were found in mainland Southeast Asia and Indonesia, no overlap was found with samples from Taiwan and the Philippines. Unlike the previous study, the researchers in this one found the time of arrival of dingoes in Australia to be as recent as 4,640 years ago and as far back as 18,100 years ago. They find �a clear indication that Polynesian dogs as well as dingoes and NGSDs trace their ancestry back to South China through Mainland Southeast Asia and Indonesia. Thus, there is no indication that these dogs were introduced via Taiwan and the Philippines together with the expansion of the Neolithic culture and Austronesian languages, as suggested in some theories about Polynesian origins.� This has also been shown to be true of pigs.

This study thus appears to align itself with the school of thought that would argue that Austronesian languages and agriculture originate in Southeast Asia, without mediation through Taiwan. (See discussion in Piper et al. 2009.) If Polynesian peoples originated in Taiwan, the current research concludes that �their Neolithic cultural package was modified en route.� The researchers argue:

�We suggest that, with the evidence on the origins of Polynesian domestic dogs and pigs, a likely scenario for the origins of Polynesians is that farmers spread from Taiwan bringing the Neolithic culture (e.g. pottery) and Austronesian languages, but mixed extensively with local Melanesian populations, and picked up some cultural traits (e.g. the domesticated dog and pig, and the commensal Polynesian rat) � en route. Therefore, the cultural package of the Polynesians was probably formed from different sources, some parts deriving from Taiwan and others incorporated at the spread through Indonesia and Melanesia.�

The researchers speculate that the dingo may have been introduced by indigenous Australians trading with Neolithic groups, perhaps through New Guinea, or trading with pre-Neolithic groups. They argue that a common ancestry of New Guinea Singing Dogs and dingoes is suggested by a number of factors, including genetics and similarities in morphology and behavior. They may have been founded �from very few individuals from the same Indonesian population, but obtained different haplotypes because of founder bottlenecks.� Koler-Matznick et al. (2000) note that blood isoenzymes differ between dingoes and New Guinea Singing Dogs, as well as the fact that dingoes are about twice the size of the latter.

The map shows the general pattern of movement of the predecessors of dingoes from Southeast Asia as posited by Oskarsoon et. al. (Double click to enlarge.)

Reasons for Bringing Dogs in Canoes

Oskarsson et al. found that the founder haplotypes for ancient Polynesian dogs, though not that of dingoes, could also be found in southern China, mainland Southeast Asia, and Indonesia, and as with dingoes, were absent from Taiwan and the Philippines. (One Polynesian haplotype was found in 7% of New Guinea Singing Dogs.) This would seem to indicate a separate migration for the dogs that arrived in Polynesia than that of dingoes, but it may still be useful to consider why dogs would be brought on boats at all, as some of the same uses for the animals were likely to be present. (For a drawing distinguishing the morphology of dingoes from other Polynesian dogs, see Hemmer 2005, p. 33.)

Unfortunately, little can be said about what sort of relationship the predecessors of dingoes had with those who brought them to the islands. As to the current level of domestication, Carl Lumholz, in his book, Among Cannibals (English edition, 1902), states:

�On Herbert river there are rarely more than one or two dingoes in each tribe, and as a rule they are of pure blood. The natives find them as puppies in the hollow trunks of trees, and rear them with greater care than they bestow on their own children. The dingo is an important member of the family�; it sleeps in the huts and gets plenty to eat, not only of meat, but also of fruit Its master never strikes, but merely threatens it. He caresses it like a child, eats the fleas off it, and then kisses it on the snout.

"Though the dingo is treated so well it often runs away, especially in the pairing season, and at such times it never returns. Thus it never becomes perfectly domesticated, still is very useful to the natives, for it has a keen scent and traces every kind of game; it never barks, and hunts less wildly than our dogs, but very rapidly, frequently capturing the game on the run. Sometimes it refuses to go any farther, and its owner has then to carry It on his shoulders, a luxury of which it is very fond. The dingo will follow nobody else but its owner�.�

The drawing of a dingo is from Lumholz's fascinating book.

Koler-Matznick et al. (2003) reported that New Guinea Singing Dogs avoid human contact, but when captured as puppies they may be raised to assist in hunts. Some tribes also eat the dogs on occasion. Teeth may be used as ornaments. Gill (1873-4, p. 46) argued that dingoes must have spread from New Guinea to nearby smaller islands where they were sometimes domesticated, but sometimes roamed in destructive packs.

Dogs of the Maoris

The Maori people of New Zealand, who arrived from eastern Polynesia, had many uses for their dogs. Blood taken from the ear of a dog and boiled was a remedy for spear wounds, taken internally or used as a lotion. Balls used in a game played by young women were ornamented with the white hair of a dog. Birds, fish, dogs, and rats were the principal animals in their diet. Dogs were cooked. Dog-skins were used in clothing. Tregear (1904, pp. 166-7) gives the following description:

�The Maori dog (Kuri ruarangi) has now entirely disappeared and it is highly improbable that even the very earliest of the white settlers ever saw the real animal, although doubtless some of its blood was running in the veins of the mongrels that roamed around the native villages. Those seen by Cook, Forster, and others, about the time New Zealand was discovered, were small dogs, something like degenerate sheep-dogs, with large heads, sharply-pierced ears, and a short, flowing tail. It was considered a valuable article of food, being bred for its edible qualities rather than for any other purpose, and as such even appreciated as eking out the slender resources of the explorers with Captain Cook. Crozet described native dogs as looking like domesticated foxes, indeed they would destroy poultry just as foxes do, and he relates that they were fed on fish, and would not be domesticated among white men, whom they would bite on occasion. The skin was highly valued as an article of attire, and a mat of dogskins was a precious possession. The white hair (awe) of the dog's tail was also used as an ornament for the weapons of a chief; the tail of the living animal being kept regularly shaved, and the hair put away for this purpose. The flesh of the dog was not allowed to be eaten by women, and not by men except under certain restrictions.�

Accounts of old natives said that the native dog did not bark, but howled a good deal. Owners prized and petted them and gave each a name. They were sometimes castrated, and were given birds and rats to eat. They were often trained to catch ground game, such as the ground-parrot (kakapo), rails (weka), and apteryx (kiwi). Training the dog was explained by Tregear as follows:

�This was done by the master squatting down, and holding his dog, at the same time giving a cry in imitation of that of the bird, who hearing the cry would come towards the hunter. The little dog was then let go and would catch the bird and hold it or bring it to his master. The dog might get lost through its stupidity, but never ran wild.�

Dogs were taken in canoes to hunt ducks and sent overboard to catch the ducks when the canoes had gotten as close as possible. Kiwi hunting is described as follows:

�The kiwi goes along looking for worms or rather listening for the rustle of the earth-worm underground. When the bird hears the worm creeping below the soil the long beak is prodded down and finds its prey. The kiwi hunter fastened little pieces (patete) of wood to his dogs' neck, so that they would rattle or rustle, and the kiwi would stop to listen, thinking that it heard the worms creeping. Then the dogs would rush in, and the men came forward with torches which they had hitherto concealed. The bird was astounded at the sudden dazzling light, it being a nocturnal bird and not used to the light, so that it was easily killed.�

Dogs even advised when to hunt kiwi: �If a dog twitched or barked in his sleep, you would go hunting with him soon, and he would catch plenty of kiwi (apteryx) for you.�

As mentioned earlier, women could not eat dog flesh, but Tregear reports other restrictions:

�The flesh of the dog was held to be a tapu food, only to be indulged in by certain persons and under certain restrictions. A dog was always killed at the great ceremonies connected with the children of chiefs and on other important and formal occasions, but the priest ate its flesh. A dog was also killed for the tattooer, when he was operating on a chief; but anciently they were kept for sacrifice.�

Theft of a dog could lead to bloodshed. Dogs had a position in the spiritual life of the Maori:

�The spirits of dogs were supposed, like those of men, to pass to the World of Shadows (Te Reinga) but they travelled by a different path than that taken by the souls of human beings. If a dog barked in a certain way at a man it was supposed to denote the death of the person barked at; the god of evil and death (Te Nganahau) inspired the dog to give the warning. Dogs frequently became goblins (taniwha) and sometimes the guardian spirits of certain places. The sacred dog of Maahu lived under the waters of a lake named Te Rotonuiaha, and was a kind of banshee, its bark proceeding from under the water being a warning of the approaching death of a chief.�

The spirits of dogs could pass into other things on death:

�A chief of high descent and great powers had a dog that was killed by a falling tree, and thereon the chief commanded the spirit of the dog to pass into a large tree growing near, and in that tree the spirit dwelt for ages and spoke (in the dog language) to travellers who dared to address it.�

Calling someone a dog was an insult in Maori society:

�The tutelary deity of dogs was Irawaru or Owa, the husband of the sister of Maui the hero, but Irawaru offended Maui who changed him into a dog and then insulted his sister by telling her to call aloud for her husband with the cry 'Moi moi!' the usual call to a dog, and which is even to-day an insult if used to a man.�

The Maoris believed that their ancestors brought dogs on canoes:

�Kupe, one of the legendary discoverers of these islands brought his dogs with him, and not only do the Hokianga natives show some curious markings in stone as being footprints of one of these dogs, but in another place they exhibit a stone into which another of the animals was transformed.�

The plate of the canoe shows a war party that met captain Cook. A detail from the plate shows a dog up close.

Dogs of the Native Hawaiians

Bryan (1915) describes the arrival of dogs on the Hawaiian Islands:

�Just as the Polynesian people carried useful plants with them on their wanderings, they also brought with them in their canoes these two highly-prized and useful domestic animals known to them in their more ancient home�. The Hawaiian dog was fed largely on poi, and was much relished as food in old-time Hawaii. Like the hogs, they were classed according to their color, there being several well-recognized color types.�

As to eating the dog, he states:

�The poi-dog, when carefully fed and fattened on poi, was regarded as even more delicious in flavor than pork. Dogs always formed an important dish at the native feasts and on such occasions large numbers of them would be baked in earth ovens.� Dogs were wrapped in banana leaves and placed on stones that had been heated by wood in a hole. The fat of the pig and dog was used as an illuminating oil.

Hamilton Smith (1840) contains a letter describing the Poe Dog of the Hawaiian Islands (once known as the Sandwich Islands) as follows:

�At the Sandwich group, where the inhabitants have been more remarkable for the use of this animal as food, and where that custom is yet pertinaciously retained (owing probably to the scarcity of swine and spontaneous fruits of the earth), the pure breed of the Poe dog has been better protected; and although becoming yearly more scarce, examples of it are yet to be met with in all the islands, but principally as a delicacy for the use of the chiefs. As late as October 1835, I noticed, in the populous and well civilized town of Honoruru at Oahu, a skinned dog suspended at the door of a house of entertainment for natives, to denote what sumptuous fare might be obtained within.�

Dogs were paid as taxes and tribute. Dogs teeth were worn in bracelets and anklets.

Conclusion

Whereas with many cultures we cannot know if camp following was something that was actively sought by humans, in the islands of the Pacific we can be sure that devoting canoe space to a dog or two meant that they had real value to the ancient travelers. Unfortunately, two very large populations of dogs in Australia and New Guinea have so long been isolated from the cultures that carried them between islands, and the time frame of settlement is so broad, that it is uncertain who brought them or why. They are sufficiently different from the other dogs of the Austronesian expansion that this expansion must have occurred in several distinct periods and geographical areas if dingoes were part of it.

Oskarsson et al., by studying dogs, have made a significant contribution to the study of the settlement and cultures of the western Pacific. It is to be hoped that anthropologists will be able to integrate these results into further research.

The last plate is another of Hamilton Smith's dingoes.

Sources:

1. Allen, M.S. (2004). Revisiting and Revising Marquesan Culture History: New Archaeological Investigations at Anaho Bay, Nuku Hiva Island.  The Journal of Polynesian Society, 113(2) (noting dogs were brought to Marquesas Islands by Polynesian settlers perhaps as early as 150 BC).
2. Ardalan, A., Oskarsson, M.C.R., van Asch, B., Rabakonandriania, E., and Savolainen, P. (2015).  African Origin for Madagascan Dogs Revealed by mtDNA Analysis.  Royal Society Open Science, 2, 150552.  DOI: org/10.1098/rsos.140552 ("A small component of the Madagascan diversity seems to have originated from Europe, probably in the colonial era.  Other genetic contribution from Southwest Asia or India, as may be anticipated considering the long history of seatrade between the African east coast and the Persian Gulf region, and later the Indian subcontinent ... is not indicated but cannot be ruled out.").
3. Ash, Edward C. (1927). Dogs: Their History and Development, vol. 1. Ernest Benn Ltd., London.
4. Bellwood, Peter (2005). The First Farmers: The Origins of Agricultural Societies. Blackwell Publishing, Oxford.
5. Bryan, William A. (1915). Natural History of Hawaii. The Hawaiian Gazette Co., Honolulu.
6. Gill, W. Wyatt (1873-4). Three Visits to New Guinea. Proceedings of the Royal Society of London, 18(1), 31-49.
7. Gillespie, Richard (2002). Dating the First Australians. Radiocarbon, 44(2), 455-72.
8. Greenhill, Simon J., Drummond, Alexei J., and Gray, Russell D. (2010). How Accurate and Robust Are the Phylogenetic Estimates of Austronesian Language Relationships. Plos One, 5(3), e9573.
9. Hamilton Smith, C. (1856). Dogs, vol. I. Lizars, Edinburgh.
10. Hemmer, Helmut (2005). Domestication: The Decline of Environmental Appreciation. Cambridge University Press.
11. Higham, Charles (1991). The Archaeology of Mainland Southeast Asia. Cambridge University Press.
12. Horridge, Adrian (1995). The Austronesian Conquest of the Sea�Upwind. In Bellwood, P., Fox, James J., and Tryon, D. (eds.) The Austronesians: Historical and Comparative Perspectives. Australian National University, Canberra (�With the ability to carry fire, family, dogs, chickens, tuberous roots, growing shoots and seeds by sea, the Austronesians eventually occupied the Pacific Islands, travelling into Melanesia about 3500 years ago and onwards into Polynesia.�).
13. Jones, Rhys (1979). The Fifth Continent: Problems Concerning the Human Colonization of Australia. Annual Review of Anthropology, 8, 445-66.
14. Klutsch, Cornelya F.C., and Savolainen, Peter (2011). Geographical Origin of the Domestic Dog. Encyclopedia of Life Sciences. John Wiley & Sons, New York.
15. Koler-Matznick, J., Brisbin Jr., I.L., and McIntyre, J.K. (2000). The New Guinea Singing Dog: A Living Primitive Dog. In Dogs Through Time: An Archaeological Perspective: Proceedings of the 1st ICAZ Symposium on the History of the Domestic Dog. BAR International Series 889.
16. Koler-Matznick, J., Brisbin Jr., I.L., Feinstein, Mark, and Bulmer, Susan (2003). An Updated Description of the New Guinea Singing Dog (Canis hallstromi, Troughton 1957). Journal of the Zoological Society of London, 261, 109-118.
17. Koler-Matznick, J., and Stinner, M. (2011). First Report of Captive New Guinea Dingo (Canis dingo hallstromi) Den-Digging and Parental Behavior. Zoo Biology, 30(4), 445-50.
18. Lumholz, Carl (1902). Among Cannibals: An Account of Four Years' Travels in Australia and of Camp Life with the Aboriginees of Queensland. Charles Scribner's Sons, New York.
19. Luomala, Katharine (1962). Additional Eighteenth-Century Sketches of the Polynesian Native Dog, Including the Maori. Pacific Science, 16 (April).
20. Mulvaney, Derek John, and Kamminga, Johan (1999). Prehistory of Australia. Smithsonian Institution Press, Washington, D.C.
21. Oskarsson, Mattias C.R., Klutsch, Cornelya F.C., Boonyapracob, Ukadej, Wilton, Alan, Tanabe, Yuichi, and Savolainen, Peter (2011). Mitochondrial DNA Data Indicate an Introduction through Mainland Southeast Asia for Australian Dingoes and Polynesian Domestic Dogs. Proceedings of the Royal Society B (doi:10.1098/rspb.2011.1395).
22. Piper, Philip J., Hung, Hsiao-chun, Campos, Fredeliz Z., Bellwood, Peter, and Santiago, Rey (2009). A 4000 Year-Old Introduction of Domestic Pigs into the Philippine Archipelago: Implications for Understanding Routes of Human Migration through Island Southeast Asia and Wallacea. Antiquity (September 1, 2009).
23. Savolainen, P., Leitner, T. Wilton, A.N. Matisoo-Smith, E., and Lundeberg, J. (2004). A Detailed Picture of the Origin of the Australian Dingo, Obtained from the Study of Mitochondrial DNA. Proceedings of the National Academy of Sciences, 101(33), 12387-12390.
24. Tregear, Edward (1904). The Maori Race. A.D. Willis, London.
25. vonHoldt, Bridgett M., Pollinger, John P., Lohmueller, Kirk E., et al. (2010). Genome-wide SNP and Haplotype Analyses Reveal a Rich History Underying Dog Domestication, Nature, vol. 464(8).

Thanks to Richard Hawkins and Brian Duggan for suggestions.

Service Dogs and the Subtle Sociology of Prejudice in the Twenty-First Century

At its best, Mad Men is a study of corporate sociology--better, anthropology--of the 1960s. Fans of the series have their favorite episodes. Mine is the tractor episode (Season 3, episode 6), in which the new Chief Operating Officer of Sterling Cooper nearly loses his life when a secretary, driving a tractor around the office during a raucous celebration�the John Deere account has just been landed�runs over the COO�s foot, cutting it off. One of the first assessments of upper management, before the bleeding is even stopped, is that the COO will have to be replaced. He cannot play golf with only one foot. In pre-ADA America, the COO could not even think of suing based on dismissal or demotion for his sudden disability. He would have to accept that the inability to play golf would preclude his being in the inner circle of an advertising agency of that era.

We have come a long way from a time when even the object of prejudice could accept such discrimination without complaint. Prejudice has not disappeared, but those who do not want to serve or work with the disabled generally disguise their reasons much better than was the case thirty or twenty or even ten years ago. Things have gotten so subtle that it may be difficult to establish that prejudice was involved at all, and indeed it may not be involved because bad things sometimes happen to good people for nondiscriminatory reasons.

Two decisions issued in October 2011 provide something of a snapshot of the present state of legal disputes regarding exclusion of service animals from retail businesses that serve food.

Fast Food Franchise

In April 2010, Alexander Johnson attempted to enter a Burger King franchise owned by B5596, LLC, but a sales clerk prevented Johnson from bringing his hearing dog inside the restaurant. A friend had to buy food and bring it outside to Johnson.

Johnson sued for disability discrimination under California�s anti-discrimination law, known as the Unruh Act, seeking damages of $4,000, along with attorney�s fees and costs. The trial court found the franchise in violation of a separate law, usually called the Disabled Persons Act, which provides for statutory damages of $1,000. Johnson appealed, arguing that he was entitled to the statutory damages of $4,000 allowed under the Unruh Act.

An appellate court in California held, in an opinion that was not officially published, that Johnson was only entitled to damages of $1,000. The appellate court explained that the Unruh Act was amended in 1992 to provide that a �violation of the right of any individual under the Americans with Disabilities Act of 1990� constitutes a violation of the Unruh Act. The Americans with Disabilities Act restricts private rights of action to injunctive relief, but the state law allows recovery of damages for the kind of discrimination contemplated by the ADA.

The court concluded, however, that the specific mention of service dogs in California�s Disabled Persons Act meant that this was where the plaintiff had to look for compensation for the defendant�s discrimination. The court noted that a provision under the Disabled Persons Act provides that a defendant, such as the franchise here, could not be held liable under both that Act and the Unruh Act. The court also affirmed the trial court�s finding that Johnson could not choose to sue under the Act that would give him the larger award. The more specific provision controlled over the more general.

The court awarded costs on the appeal to the respondent, the franchise, though apparently not attorney�s fees. Johnson v. B5596, LLC, 2011 WL 5086234 (Cal. Ct. App. 2011)

Oregon Dairy Farm and Store
On December 1, 2009, Rachel Brodle entered a Dari-Mart Store in Eugene, Oregon, with her service dogs. The store clerk asked her what kind of service dogs they were. Plaintiff, according to the defense, became �distressed and started yelling.� Brodle left the store and returned with a friend, Lorri Cochrane. Brodle asserted her right to enter the Dari-Mart with her service dogs. Again according to the defense, Brodle was �incredibly rude and invasive� towards another employee of the store.

The store manager instructed all her employees that if Brodle returned again, she should be directed to speak to Alexander before being allowed to shop. The manager also contacted the Deri-Mart�s human resources department and requested that the surveillance video of the events be reviewed.

Brodle returned five days later with her dogs. A clerk informed her she had to speak to the manager before she would be allowed to shop. Brodle refused and left the store, saying she would contact her lawyer.

Later on December 6, Cochrane also returned to the store and expressed her displeasure at what she perceived to be the store�s mistreatment of Brodle. Cochrane had poured herself a soda and left without paying for it. Cochrane also mentioned contacting an attorney on Brodle�s behalf.

On December 7, the store manager informed Dari-Mart�s Human Resources Manager that she believed Brodle was �looking to sue us.� The HR Manager asked the company�s Safety Director to review the video surveillance of December 6. The Safety Director took out snapshots of Cochrane taking a soda without paying for it, apparently thinking there should be a shoplifting prosecution. The video of December 6 was automatically erased about 30 days after the incident.

Brodle brought suit, then petitioned for an order specifying that she was refused access to the store because she was accompanied by service dogs, as well as an order imposing an adverse-inference instruction that would instruct the jury that it could infer that spoliated video surveillance would have been unfavorable to the store and its employees.

Federal courts may issue sanctions against a party for destroying evidence, but a court considering such sanctions must take into account a number of factors before imposing them. The federal district court for the District of Oregon held that the failure to preserve the video was not the result of willfulness, bad faith, or interference with the rightful decision of the case in that the store had admitted that Brodle was asked to leave on December 6.

The court also declined to exclude testimony of the store employees regarding what happened on December 6 because Brodle �failed to show that she is unduly prejudiced by the destruction of the December 6 video and any testimony by defendants and their employees regarding the events of that day.� Thus, the store employees could testify.

As to the adverse inference instruction that Brodle sought for the jury, the court concluded that Brodle had �failed to show that the video was destroyed with a culpable state of mind.� The request for such an instruction was also denied.

Dari-Mart moved for summary judgment, arguing that Brodle had failed to establish a basis for liability. This motion was granted, ending the case, absent possible reconsideration on appeal.

As with a recent blog regarding access of a person with a service dog to a courthouse, the statement of facts given in the court�s opinion does not tell us what really happened. Clearly the court was inclined to accept that Brodle reacted badly to a request for information from a store employee. The store and its employees have a right to verify that a dog�in this case dogs�is a service animal. There are well-known limits on what may be asked and what may not be asked. Brodle�s complaint stated that she suffered from Addison�s Disease (primary adrenocortical insufficiency). The store could not ask about Brodle�s condition, and apparently did not do so. The store could ask about what functions the service dog performed, which is what apparently was asked, though the opinion never states what functions the dogs perform.

Merely knowing what was asked and what was not asked does not always describe what it was like to be in the store when the events that became the subject of this litigation took place. The court had to make a decision, and did so. Although the facts, as presented in the opinion, portray Brodle as overly sensitive to the store employee�s inquiries, we cannot be sure that some level of prejudice might have been involved.

The store made its case. Brodle did not. Judges are not agents of individuals with disabilities, nor are they agents of businesses. They listen to stories and attempt to understand what happened. As I said in another blog several years ago, enforcing one�s rights sometimes involves thinking strategically, not aggressively. That does not seem to have been done here. Brodle v. Lochmead Farms, Inc., 2011 WL 4913657 (D.Or. 2011)

What Was Not Said by the Courts

When I wrote Service and Therapy Dogs in American Society, I was surprised at how many national and multinational corporations had failed to assure that employees be aware of the disability rights of customers, including customers using service animals. It seemed to me that they should be learning from each other�s mistakes, but this has often not been the case. The lucky ones are those that find a way to settle before an incident becomes public.

Although Burger King is a franchise system, I have to believe that Burger King corporate headquarters is anxious to avoid the bad publicity attendant on a franchise employee�s refusal to admit a customer with a service animal. Was this an employee more interested in a cute colleague sitting next to him at the disability seminar than he was in the speaker? The franchise may have had to pay a small amount this time, but the next time an employee crosses the line with a customer using a service animal, resolving the issue may not come so cheap. Burger King corporate headquarters would be well advised to send a memo to franchisees warning them about the risks of failing to educate employees on the need to allow people with service animals into the restaurants.

Dari-Mart should not become complacent about the fact that it got a service dog user�s case dismissed. Why did a security official allow a videotape to be erased? Why did that official think the only thing the tape was good for was in making a shoplifting case against someone who was trying to help an individual with a disability? Other employees seem to have made it clear that they wanted the video footage reviewed to establish that their response to the woman with the service dog was not discriminatory or threatening. The security officer could not think beyond the boundary of his responsibility of protecting the store from theft. Dari-Mart should be concerned that another court, or the same court with a few variations in facts, might have favored the plaintiff in such a situation. It might even be wise to shift to a technology that saves security footage indefinitely. While a month may be adequate for most security and police purposes, an incident involving discrimination would quite likely not come to the store's attention in such a short time frame.

Conclusion

A corporation with an employee that doesn�t know about the rights of persons with disabilities, including the rights of persons using service dogs, has a problem employee. An employee who doesn�t understand that video surveillance can be used for more than preventing shoplifting may also be a problem employee. The Dari-Mart case shows that employee education should be designed to deal with the many collateral issues that may arise in a potential discrimination situation.

Corporate counsel reviewing incidents that might lead to accusations of discrimination should not rest on the easy victories where company employees were more in the right than in the wrong. These victories may come from incidents that contain the germs of more serious issues, ones that will not be easily won, or might only be won at a tremendous public relations cost.

People with disabilities, including users of service animals, are more aware of their rights than ever. An employee who loses his foot at an office party would not in the twenty-first century accept a demotion because of a sudden limitation to his golf game. Situations have become more subtle, making proof of discrimination harder to establish. All in all this is probably progress of the sort Oliver Wendell Holmes wrote about and which has for decades decorated a wall of Boalt Hall at Berkeley.

�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.