Dogs. They are man’s (and woman’s) best friend. We have them in our homes and treat them like family. Those of us who own dogs (me included) can’t imagine our lives without them. But those are our dogs. Police dogs are tattletale narcs that want to send you to prison.
Police dogs are portrayed as invincible creatures that can sniff out drugs with absolute reliability. And to be fair, they’re better than people are (although, that doesn’t stop certain officers from claiming they can smell half a gram of marijuana through the trunk of a car). But at the end of the day they’re just animals subject to the same biological limitations of every other creature. Whenever a dog alerts to a car it presents a significant problem for clients when drugs are found. Once an officer believes that a dog has alerted, he or she can search your entire car including locked gloved compartments, closed trunks, and the people inside. So how can you challenge a dog alert in your case?
THE ALERT
The first step is to determine whether the dog actually alerted. Some people think that a dog alert is as clear-cut of an indication as a metal detector going off at the airport, but its far from being that simple. Most dogs are trained to alert passively. This means that the officer will be required to interpret the dogs behavior to determine whether it is alerting. It is common for dog handlers to testify that the dog was showing ‘increased sniffing behavior,’ ‘scratching at an odor source’ or ‘sat and alerted.’ You’ll also see language in police reports distinguishing between “indications,” which are behaviors leading a dog handler to believe that the dog is detecting an odor.
So what exactly is an alert? Well, the dog sniffed, moved its paw, or sat down in a certain way. In other words, some officers will claim that a dog acting like a dog is proof positive that drugs are in a car. Having watched hundreds of squad videos of dog sniffs, let me be the first to tell you the process is nowhere near objective. Courts rely in great part on the opinions of the dog handlers as to whether the dog actually alerted, and when an officer wants to search a car, you can bet that he’ll see indications and alerts in every breath through the nose or twitch of the paw. This is why it’s crucial to order squad and body camera videos to see if the officer’s report is truthful and believable. An officer has to prove that the dog’s behavior established probable cause to search the car, and an experienced drug attorney will challenge ambiguous dog alerts.
INTENTIONAL/UNINTENTIONAL CUES
Those of us with dogs in the family know that above all else dogs want to please their owners. That’s why they sit, shake, and roll over, oftentimes without request because they want their people to be proud of them. Much like teaching a dog to fetch, police dogs are trained to treat drug sniffs as a game. Whenever the handler commands a dog to sniff, he is asking the dog to play a game of find drugs in someone’s car. And when the dog is done it gets a reward: praise, pets, and access to its favorite toy.
One doesn’t need to go to great lengths to explain the danger that a dog will alert to a car to please its handler, get a reward, or as a matter of habit. Similarly, the danger that a dog will alert to unconscious cues from its handler is just as real. This is another important reason to carefully review video of a search and require an officer to prove that a dog’s behavior established probable cause to search.
GENERAL RELIABILITY
Just like humans, some dogs are better qualified for a task than others. It is important to remember that there is no standardized training curriculum for police dogs. And there are no certification or reporting requirements for those dogs either. This means that a department can buy a trained dog, oftentimes as cheaply as possible, and call it a police canine.
In one prior case, we discovered that a police canine had been trained for four weeks by a guy in a barn in Northern Wisconsin. This “kennel” had never trained a police dog before, and as far as we could tell, the trainer was purchasing his own drugs on the street to train the dog. After discovering that the dog’s field accuracy rate was twenty percent (meaning that four times out of five, officers did not discover drugs following an alert), the police department opted to dismiss drug charges and retire the dog in question. In another case, we requested a police canine’s veterinary records only to discover that the dog had recently been treated for a large cancerous growth that intruded into its olfactory cavity. That case was also dismissed.
Since there are no legal requirements governing a police dog’s training, certification, and reporting, there are vast difference in breeding, training, and care that can significantly impact reliability. In general, a reliable police dog will be trained in an accredited kennel, with testing, certification, and weed out of unfit dogs at each phase. General purpose police dogs will train in obedience, tracking, drug detection, and officer defense, with an accredited program taking 4 to 6 months. Most police agencies prefer German Shepherds or Belgian Malinois for their ability to both detect drugs, track a scent, and bite the hell out of an uncooperative suspect, but other breeds are suitable for scent detection for a particular purpose including drugs, explosives, cadavers, and people. Any serious challenge to a dog’s reliability will include examination of its breeding, training, error rate, and health status.
STALE ODORS
One major problem with drug dogs is that they alert to an odor. Odors are present even if the drugs are not. This means that many searches are subject to the doctrine of staleness. In order to conduct a search, the officers must be able to show that their probable cause is current. If probable cause is based on old information it is considered “stale” and unreliable. This concept comes into play particularly when police stop a car and conduct a dog search on vehicles where they have previously found drugs. The officer already knows that the dog will alert to the odor, because drugs were previously in the vehicle.
TIMING
Probably the most common challenge to a dog sniff doesn’t have anything to do with the dog, but how long it took the dog to get there. In the vast majority of traffic stops, the initial officer does not have a police canine. Instead, that officer calls for a dog during the stop. The only problem with this is that the officer has to have a good reason to extend the stop to wait for the dog.
In Wisconsin, we used to have a rule that allowed the officers to extend a traffic stop for a “reasonable” period of time, even if there was no valid reason to continue holding someone. (For those that are interested the case was State v. Arias). However, the U.S. Supreme Court recently put an end to that practice with Rodriguez v. U.S. The rule on waiting for drug dogs now boils down to this: As long as the officer has some legal reason to continue detaining you (still writing a ticket, waiting for a warrant check, etc.) any dog sniff is allowed. However, the officer cannot extend the traffic stop even one second beyond the time necessary to complete the purpose of the stop unless there are some other legal grounds to continue holding you. So when Fido is 45 minutes away, the officer has to have an awfully compelling explanation for why he could not write a speeding citation in that period of time. For this reason it is very common to challenge dog sniffs on the grounds that a stop was unlawfully extended.