April 2, 2012 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
As a criminal defense lawyer in Los Angeles, I see firsthand how dogs can be used to prevent a wide array of people from being treated justly.
Before going any further, let’s get something out of the way: I love dogs. But when it comes to how dogs are used to determine who gets arrested and what happens during and after the arrest, my complaint isn’t with the dogs; it’s how the police use dogs.
The constitutionality of using dogs when someone has been stopped is well established. In 2005, the United States Supreme Court ruled that the Fourth Amendment’s prohibition on unreasonable searches and seizures is not violated when, as part of a traffic stop, a dog is brought in to sniff the exterior of the car. This doctrine was decided in Illinois v. Caballes, in which the car was stopped by the police for about ten minutes. There is no hard and fast rule how much time has to pass waiting for the dog before the search becomes unreasonable. In making this decision, most of the Justices focused on the extent to which the dog sniffing dog was intrusive.
Justice Souter, however, disagreed with the decision, focusing on how academic research had questioned the reliability of dogs brought to potential crime scenes. His basic point was simple—dogs aren’t especially reliable at identifying drugs or contraband.
“The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. . . . Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time, depending on the length of the search”
It’s not that dogs don’t have a much better sense of smell than humans do—they clearly do. They are unreliable, however, because dogs have a strong desire to please their handlers. Thus, it can be difficult to tell whether the dog is reacting to the presence of drugs or is reacting to subtle clues sent by the police officer who is handling the dog. An increasing array of research suggests that dogs can be easily misled into “finding” drugs when they don’t exist. A more recent study published in the journal, Animal Cognition, showed error rates on up to 85%. Interestingly, the dogs were most likely to be wrong about finding drugs when their handler suspected that a given location had drugs.
The studies mentioned above assume that the police officer handling the dog is being fair. But unfortunately that isn’t always the case. Sometimes the police officer in question deliberately acts in a way that encourages the dog to act if drugs are present. A recent stop that was videotaped is a good example of this. As reported in The Huffington Post, filmmaker Terrance Huff and his friend were stopped in a small town in Illinois on their way back from St. Louis. The stop lasted 17 minutes and was videotaped by a camera that was located on the dashboard of the police cruiser. The stop didn’t result in an arrest, but it nonetheless shows some questionable police conduct.
When an expert who trains police officers in dog handling techniques was shown the video, he concluded that the police officer acted improperly by among other things changing how he used his voice to signal the dog to react as if drugs were present.
“Just before the dog alerts, you can hear a change in the tone of the handler’s voice. That’s troubling. I don’t know anything about this particular handler, but that’s often an indication of a handler that’s cuing a response.” In other words, it’s indicative of a handler instructing the dog to alert, not waiting to see whether the dog will alert.
“You also hear the handler say at one point that the dog alerted from the front of the car because the wind is blowing from the back of the car to the front, so the scent would have carried with the wind,” Papet says. “But the dog was brought around the car twice. If that’s the case, the dog should have alerted the first time he was brought to the front of the car. The dog only alerted the second time, which corresponded to what would be consistent with a vocal cue from the handler.”
It turns out the officer in involved in this incident, Michael Reichert, has had a checkered past. And at least one judge has found his courtroom testimony not to be credible. He was let go by one police department but was later reinstated and then hired by others.
So what does mean for someone who is arrested in Los Angeles on suspicions of possessing drugs in their car? Does it mean that the use of drug sniffing dogs will be found to be improper? Probably not. Dogs are likely to be a part of police work for the foreseeable future. But what these cases do show that defending a case involves digging into details. You can’t assume that the stop was proper, or that the officer was honest, or that the dog wasn’t tricked, or any number of other details that might show that the arrest wasn’t proper, or that there is more going on than the police officer initially realized. This is yet another example of why being a criminal defense lawyer requires attention to detail and persistence. It’s also why people who have been arrested rarely can judge whether or not they have a solid defense. For that, you need to call an experienced criminal defense attorney.