U.S. top court curbs police drug-sniffing dogs in routine traffic stops

WASHINGTON (Reuters) – The U.S. Supreme Court on Tuesday placed a new limit on when police can use drug-sniffing dogs, ruling the dogs cannot be employed after a routine traffic stop has been completed if there is no reasonable suspicion about the presence of drugs in the vehicle.

The court ruled 6-3 in favor of a driver, Dennys Rodriguez, who was stopped in Nebraska and found to be transporting a large bag of methamphetamine following a dog sniff.

In an opinion by Justice Ruth Bader Ginsburg, the court held that a traffic stop lengthened purely to conduct a dog sniff without reasonable suspicion would violate the U.S. Constitution’s Fourth Amendment, which protects against unreasonable searches and seizures.

Conservative Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented. Thomas said the ruling conflicted with a 2005 decision in which the court held that using drug-sniffing dogs is lawful when conducted as part of a routine traffic stop.

A police officer pulled over Rodriguez just after midnight on March 27, 2012, after Rodriguez’s car was seen veering onto the road’s shoulder.

After the initial stop, in which Rodriguez said he swerved to avoid a pothole, the officer wrote a written warning. But before allowing Rodriguez to drive away, the officer asked if the police dog could walk around the vehicle. That added about eight minutes to the stop.

Rodriguez declined, but the officer insisted. The dog then detected the drugs. Rodriguez was indicted on one count of possession with intent to distribute 50 grams or more of methamphetamine. He pleaded guilty pending his appeal and was sentenced to five years in prison.

The ruling on Tuesday does not mean Rodriguez is off the hook. Ginsburg noted that lower courts had not determined whether the officer in fact had reasonable suspicion to allow the dog sniff.

In a dissenting opinion, Alito said the ruling would have little practical effect because police officers just need to learn the correct procedure for conducting a lawful dog sniff.

“I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops,” Alito wrote.

The case is Rodriguez v. United States, U.S. Supreme Court, No. 13-9972.

Indiana Court: K-9 alert on cash not automatic tie to drug trafficking

INDIANAPOLIS — The Indiana Court of Appeals has ruled that an alert by a drug-sniffing dog is not sufficient evidence for police to seize cash they claim is tied to drug trafficking.

In 2015, an Indianapolis detective who was visually inspecting packages at a local shipping company grew suspicious of two parcels, one sent from Illinois, the other from Indiana that both were addressed to the same California recipient, heavily taped and set for priority overnight delivery.

A drug-sniffing dog alerted on both parcels indicating an odor of controlled substances. That, plus his claim California is known as a place where controlled substances are imported and exported, prompted the detective to obtain search warrants for both parcels.

According to court records, the warrants authorized police to open and search the parcels “for controlled substances, records of drug trafficking and proceeds of drug trafficking.”

Police found $15,000 cash in one package and $15,300 cash in the other, but no controlled substances or records of drug trafficking in either.

Court records show neither of the individuals who shipped the packages ever were charged with a crime, or even investigated for a crime in connection with the packages.

Nevertheless, police seized the $30,300 as drug trafficking proceeds and sought to turn it over to the federal government, which would have returned most of it to the local police department.

Marion Superior Judge Marc Rothenberg affirmed the seizure and approved the police request to turn the cash over to the federal government, pending appeal.

In their appeal, the shippers and receivers of the money argued that police went beyond the scope of their search warrant by seizing the cash, since the police could not demonstrate it was derived, either directly or indirectly, from drug trafficking.

The appellate court, in a 3-0 decision, agreed.

Judge John Baker, writing for the court, said if all heavily taped parcels containing money and shipped to California via priority overnight delivery could be seized as drug trafficking proceeds, then “many last-minute gift recipients at holiday and birthday time would be sorely disappointed (and surprised).”

Baker acknowledged that the police K-9 unit did alert on both parcels.

But he said that only indicates someone who handled the parcels at some point in time transferred the odor of controlled substances to the packages.

“Any of those individuals could conceivably have possessed and/or used the unidentified controlled substance, either legally or illegally, with or without an intent to commit drug trafficking,” Baker said.

He also noted that studies show up to 90 percent of U.S. currency is contaminated by drug residue — “leading us to place even less credence on a positive alert from a K-9 unit alone with absolutely no other evidence suggesting drug trafficking.”

As a result, the court found that “no reasonable person would conclude, based on these facts, that the currency was the proceeds of drug trafficking,” ruled its seizure unlawful and ordered the money be returned.

It’s now up to Republican Attorney General Curtis Hill to decide whether to ask the Indiana Supreme Court to review the appellate ruling.

INDIANA CLARIFIES OCCUPANT SEARCH RULES

On December 21, 2016, the Indiana Court of Appeals clarified an issue of concern to canine handlers within the State.

The Scenario:

A joint task force was conducting surveillance on a white van with Illinois plates, based upon criminal informant information. When the van changed lanes without signaling, a traffic stop was initiated and two back-up units arrived, one of them being a K9 unit. With the occupants still in the vehicle, a canine sniff of the exterior was initiated. The dog alerted, the occupants were removed and a search of the vehicle was conducted. No contraband was found within the vehicle. Still, officers arrested the driver and passenger of the vehicle and transported them to the police station where they requested both occupants to consent to a strip search. The driver consented to a strip search, as a result of which nothing was found. While awaiting a warrant to search the passenger the police saw him taking something from his pocket and place it into his mouth. It was retrieved by force and determined to be heroin.

The Question:

Can you conduct a warrantless search of vehicle occupants when a canine alert results in a search which discloses no contraband in the vehicle?

The Ruling:

In Thomas v State, 65 NE3d 1096 (Ind App 2016), the Indiana Court of Appeals held that it is illegal for you to conduct a warrantless search of a vehicle occupant based simply upon a canine alert where no contraband is found during the search of the vehicle.

In the words of the 7th Circuit, “In recognition of the Fourth amendment’s ‘significantly heightened protection…of one’s person,’ *** we do not think that the Fourth Amendment authorizes a process-of-elimination practice absent information particularized to the individuals under suspicion. That Christmas consented to a search did not mean that Thomas was required to do likewise. Rather, police engaged in a kind of process of elimination: they could not find drugs in the car so they assumed the drugs must have been on either Christmas’s or Thomas’s person.”

“Here, there was no contraband found in the vehicle, and under circumstances like these the probable cause arising from a drug dog’s alert to a larger area like a car does not permit a fishing expedition into the pockets of each of the car’s occupants.”

What if the police had knowledge of previous drug arrests or convictions for one or more of the occupants? Would that factor be enough to justify the warrantless search of the individual? No. The Thomas Court cited with approval a decision form the Ohio Court of Appeals.

In Ohio v Kay, WL 2918523 (Ohio Ct App 2009) the Ohio Court of Appeals was unpersuaded by the fact that police knew Kay (a front seat passenger) to have a past involvement with drugs or that the vehicle in which he was riding was seen leaving the vicinity of a known drug house.

The Conclusion:

If you are a canine handler working in Indiana you may not conduct a warrantless search of a vehicle occupant merely because contraband was not found during a vehicle search following a canine’s alert to the vehicle exterior. Knowledge of an occupant’s past involvement with narcotics will not be enough to overcome the warrant requirement.

Consent to search the person will eliminate the need for a warrant, but remember that it is your burden to prove that the consent was freely and voluntarily given and was not withdrawn.

My thanks to Attorney, Robert L. Burkart of Evansville, Indiana, for bringing this case to my attention and to APCA member Andrew Phillips for raising this issue on behalf all Indiana canine handlers.

K-9 in Law Enforcement

The use of K-9 units to apprehend fleeing suspects has been a hot topic in recent months, particularly in Mississippi. This past week, the Fifth Circuit Court of Appeals handed down its opinion in Cooper v. Brown (the full text of the opinion can be found by clicking here), which chipped away at local law enforcement’s use of K-9 units to apprehend fleeing suspects.

Background of Cooper v. Brown

In April 2013, the plaintiff, Cooper, was pulled over by a local law enforcement officer under suspicion of DUI, a misdemeanor. After the officer gave Cooper a portable breath test, Cooper panicked and fled on foot into a local neighborhood, where he hid in a cubbyhole among trash bins. The initial officer radioed for backup, and Officer Brown responded, arriving on scene with his K-9 unit, Sunny, a Belgian Malinois. At this point, the initial officer had not requested a K-9 unit, nor did he know or communicate that Cooper was armed or dangerous.

After searching the neighborhood, Officer Brown and Sunny stumbled upon the hiding Cooper, and Sunny attacked Cooper, biting him for one to two minutes. Meanwhile, as Sunny bit him, Cooper remained compliant, and responded to Officer Brown’s commands. It was not until Cooper was handcuffed that Officer Brown ordered Sunny to release Cooper; but the damage was done. Following the attack, Cooper required multiple surgeries on his lower-leg, including reconstruction and skin grafts.

Eventually, Cooper sued Officer Brown, basing his suit on Brown’s use of excessive force. Sometime after discovery, Cooper moved for partial summary judgment as to Officer Brown’s individual liability, while Officer Brown moved for summary judgment on the basis of qualified immunity. The District Court for the Northern District of Mississippi agreed with Cooper, held that Officer Brown’s use of the K-9 unit was objectively unreasonable, and granted Cooper’s motion; however, it denied Officer Brown’s motion. Officer Brown filed an interlocutory appeal, arguing that the District Court erred in granting Cooper’s motion and Officer Brown was entitled to qualified immunity.

Qualified Immunity in the Fifth Circuit

Our Supreme Court recognizes qualified immunity as immunity from suit, not immunity from liability, so long as the official’s—a police officer—conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Fifth Circuit employs a two-part test to determine whether an official is entitled to qualified immunity: 1) whether the plaintiff alleged a violation of an actual constitutional right; and 2) if so, whether that right was clearly established when it was supposedly violated. Brumfield v. Hollins, 551 F. 3d 322, 326 (5^th Cir. 2008).

The Parties’ Arguments in the Fifth Circuit

Cooper argued that Officer Brown used excessive force. To prevail, Cooper had to prove: 1) an injury; 2) which resulted directly and only from a use of force that was clearly excessive; and 3) the excessiveness of which was clearly unreasonable. See Elizondo v. Green, 671 F. 3d 506, 510 (5^th Cir. 2012). Officer Brown responded that even though Cooper was obviously injured that his—Brown’s—use of force was objectively reasonable. The Fifth Circuit disagreed.

In its analysis, the Fifth Circuit relied on well-established caselaw to rebuff Officer Brown’s argument. The Court acknowledged that in excessive force cases, the officer’s reasonableness depends on the facts and circumstances of each case, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Conner, 490 U.S. 386, 396 (1989). Courts reach their decision, not with hindsight, but by looking at the circumstances from the view of a reasonable police officer on the scene. Id. It was that view, as well as the Court’s analysis of the Graham factors, that led to Cooper’s victory in the Fifth Circuit.

The Court acknowledged that even though DUI is a serious offense, the remaining Graham factors weight heavily in Cooper’s favor. As to the first factor—whether Cooper posed an immediate threat to Officer Brown or others—the Court found that no reasonable officer could conclude that Cooper posed an immediate threat, because Cooper was not suspected of committing a violent offense or gave any officer any indication that he was violent. Officer Brown tried to argue that because Cooper had not been searched, that it automatically made Cooper more of a threat; however, the Fifth Circuit reiterated that given the nature of the underlying crime, that Officer Brown’s argument was weak.

When looking to the third factor (whether Cooper was actively resisting arrest or attempting to evade arrest by flight), the Court found that Cooper offered little resistance. The Court pointed out that Cooper’s only resistance was his failure to show his hands when Officer Brown ordered him to; however, the Court quickly pointed out that Cooper’s “resistance” of not showing his hands was due mostly to the K-9 unit still attacking Cooper’s calf. Rather, the evidence proved that Cooper actively complied with rest of Officer Brown’s commands, including rolling over onto his stomach, despite the ongoing attack. Even then, the crushing blow to Officer Brown’s argument was that he did not order the K-9 unit to release the bite until after Cooper was handcuffed. As the Fifth Circuit stated: “we state only the obvious: Under the facts in this record, permitting a dog to continue biting a complaint and non-threatening arrestee is objectively unreasonable.”

The Court continued its analysis by discussing whether Cooper’s right to be free from excessive force was clearly established at the time of the violation. The Fifth Court pointedly held that the right was clearly established, basing its opinion on Officer Brown having “’fair warning’ that subjecting a compliant and non-threatening arrestee to a lengthy dog attack was objectively unreasonable.”

Thoughts

So what does this mean for local law enforcement? The Fifth Circuit reiterated several well-established principles of excessive force in dog bite cases. First and foremost, local law enforcement must maintain ongoing training to remain aware of what it can and cannot do. While using K-9 units to apprehend suspects is not by itself objectively unreasonable, the analysis always hinges on the facts and circumstances surrounding the use of force. Here, it was obvious that Cooper was not actively resisting arrest, and so the amount of force necessarily to effectuate it was greatly diminished. Another consideration is whether a K-9 unit is even necessary. As the Court pointed out, the record was devoid of facts indicating that Cooper posed an immediate threat.

Something else to consider, given the facts and circumstances of this case, is the length of the dog bite. Here, K-9 unit Sunny found Cooper, immediately bit him, and did not release until one to two minutes later. At first glance, that may not seem lengthy, but from the plaintiff’s perspective (and as shown here), a lot can happen in one or two minutes.

A former colleague of mine once said that when it comes to these types of cases, the devil is always in the details. Regardless of the details and questions that arise from this case, one thing is certain: law enforcement should use K-9 units sparingly, and only when absolutely certain that a fleeing suspect is actively resisting arrest or imposes a clear danger to others

——-

There is also a case out of the 7th Circuit [Becker v Elfrich, 2016 U.S. App LEXIS (2016) ]in which the court held that the issue of excessive force was not from the original deployment to seize the suspect, but the fact that the dog was not removed, even while the unarmed suspect was face down and in the control of several officers including the handler. The dog tore out the defendant’s entire calf muscle.

The 7th Circuit also stated that whether the force used was excessive is determined in part by what the dog is expected to do when he/she engages the suspect. This goes back to how the dog was trained to engage. In the 7th Circuit case, the handler stated in testimony that his canine is capable of inflicting “lethal force” and that there is a “probability of him doing so.”

Many command officer see safety (for their own butts) in a bark-and-hold dog. Be careful. I am not a trainer and you should defer to the master trainers for their view of this, but my personal and legal opinion is that bark-and-hold presents a much more dangerous risk. In bark-and-hold the dog is granted the discretion on when to bite the suspect including re-biting. The dog is typically trained to hold the suspect with a display of aggression of threat by barking without biting, but that if the suspect makes a move the dog may engage. Engaging or biting is the reward for the dog so he will seek to cause the suspect to move in order to get his reward, especially if the suspect remains passive longer than the dog will tolerate. If the handler is nearby and can quickly recall or secure the dog, this should not be an issue. However, if the dog senses that the ‘game’ is going to end before he can get his reward, he may simply force movement from the suspect or even bite the suspect while he/she is complaint.

John M. Peters

K9 Legal Seminar

7th CIRCUIT ANALYZES K9 USE AS DEADLY FORCE

On May 12, 2016, the U.S. Court of Appeals for the 7th Circuit issued an opinion in a case involving a canine bite of a suspect during an arrest. Becker v Elfreich 2016 U.S. App. LEXIS 8703 is an excellent case for understanding the various elements analyzed by the courts in determining both excessive force and potentially deadly force in the use of a police canine.

Facts:

Officer Elfreich is a canine handler for the Evansville, Indiana Police Department. On March 11, 2011, Officer Elfreich was one of four Evansville police officers who arrived at a residence to serve an arrest warrant. The object of the warrant was Jamie Becker whose mother reported that he has threatened to kill his brother-in-law three weeks earlier while holding a knife to his throat.

At the residence Officer Elfreich took his police canine to guard the rear door. While there he encountered a man named Brian Mortis leaving the home. Mortis informed Elfreich that Becker Becker was inside the house with his mother, Brinda Becker and aunt, Delores Pfister. The officers at the front of the residence spoke with Brinda Becker and her sister at the front door. Brinda informed them that Becker was alone in the house and then she called out to Becker to inform him that the police were there and to urge him to come out and surrender.

Elfreich and his dog, Axel, were called to the front of the house. After hearing no response and not seeing Becker after 30 seconds, Elfreich released Axel into the house with the command, “find him.” Axel met Becker as he was descending the stairs with his hands on his head and his girlfriend following behind him. Axel lost his initial grip on Becker’s leg, but re-engaged at almost the exact moment that Elfreich made contact with Becker. Elfreich testified that he only pulled Becker to the ground when he refused Elfreich’s order to get on the floor. Becker said he did not hear the command because his girlfriend was screaming. Becker landed hard on his head and chest as Elfreich pulled him down the last three steps. Despite having Becker in his control, Elfreich did not command Axel to release Becker. According to Becker, Elfreich told him that Axel would not release until Becker was in handcuffs. Once Becker was hand-cuffed Officer Elfreich commanded Axel to release his grip. However, by that time Axel had completely torn Becker’s calf muscle out, requiring hospitalization, surgery and resulting in permanent muscle and nerve damage.

Becker’s was granted qualified immunity on Becker’s claim that the deployment of Axel into the hose to seize him was unreasonable and excessive force. However, the lower court denied qualified immunity on Becker’s claim civil that Officer Elfreich’s failure to have Axel release him after he had been subdued and while he was face down with Officer Elfreich’s knee in his back was excessive force. It was this ruling which Officer Elfreich appealed. The 7th Circuit affirmed the ruling of the lower court holding that there were questions of fact as to whether the continued use of Axel after Becker had been subdued was excessive force in violation of the 4th Amendment.

All use of force cases are analyzed under the 4th Amendment by using the Graham elements test. Here is how the Court addressed those elements.

Nature of the Crime Involved

Although the 7th Circuit agreed that the crime for which Becker was being arrested – threatening to kill his brother-in-law with a knife – is a serious and violent felony, it observed that the incident had occurred two weeks earlier without any subsequent incidents.

Risk of Harm to Officers or Others

Here the Court found that Becker was not armed, was presenting himself for arrest accompanied by his girlfriend and that Officer Elfreich had two other officers with him as he entered the house.

Level of Resistance

The 7th Circuit found that Becker’s resistance – if any – was passive rather than active resistance. Nobody seemed to dispute Becker’s testimony that he was descending the stairs with his hands on his head and was not armed. Becker claims that he did not immediately go to the floor because he did not hear or understand Elfreich’s initial command to do so. Once Becker was pulled down to the stairs and onto the floor face first with Officer Elfreich’s knee in his back there was no evidence of resistance.

Level of Force Used

The 7th Circuit’s decision was largely influenced by Officer Elfreich’s own testimony regarding the level of force used. According to the 7th Circuit, Elfreich testified that his dog was trained to bite-and-hold the “first person he finds even if that person is not the suspect and even if that person has surrendered, and hold that person until Officer Elfreich commands him to release.”

In addition, Officer Elfreich testified that Axel is capable of inflicting “lethal force”and that “there is a probability of him doing so.”

The Court noted this in determining the level of force used as being extremely high, even “lethal.”

Warning or No Warning?

In every canine bite case one of the elements the courts will focus on is the nature of the warning given.

Officer Elfreich testified that he gave the following warning prior to deploying Axel,“Police department K9, come out now or I will release my dog and you will get bit.”Officer Elfreich testified that he “listened for a moment”, heard nothing, repeated the warning and after hearing nothing again, released his dog into the house with the command “find him.” Officer Elfreich believes it was about 30 seconds from his first warning until he released Axel.

However, Officer Elfreich’s testimony was contradicted by both Brinda Becker and Jamie Becker who testified that no warning was given.

Qualified Immunity Defense

A defense of qualified immunity is established by showing that (i) any reasonable police officer could have chosen the same approach as the defendant officer did, or (ii) the federal constitutional right which the plaintiff says was violated was not ‘clearly established’ under the law at the time of the incident.

In this case, the 7th Circuit held that there were at least questions of fact as to whether a reasonable canine handler faced with Officer Elfreich’s circumstances would have left a police canine engaged with the suspect. As long as Officer Elfreich did.

Clearly established federal law at the time of the incident held that the use of force on a compliant suspect or one who can no longer present a threat to officers is a violation of the 4th Amendment’s prohibition on excessive force in the seizure an individual.

K9 as Deadly Force?

The 7th Circuit closely examined the many elements of this case to see if they met a finding of deadly force. In the end, the Court concluded that “There are just too many unknowns for this court to conclude, as a matter of law, that Officer Elfreich’s use of Axel constituted deadly force. Of course, that also means that we are not holding the ‘bite and hold’ technique is per se deadly force.”

In its discussion, the 7th Circuit focused upon how a police canine is trained to bite as an element of determining whether deadly force is used. The Court also noted that the number of bites or re-attacks is another element to be considered in determining whether the use of a police canine constitutes deadly force. So, once again, a federal appellate court has left the door open to a future finding that canine use can equal deadly force.

Ruling

In the end, the 7th Circuit affirmed the decision of the lower court denying Officer Elfreich’s motion to dismiss based upon qualified immunity. The 7th Circuit held that there were significant questions of fact for a jury to determine and that a reasonable jury could conclude that Officer Elfreich’s use of force was excessive in violation of Jamie Becker’s 4th Amendment right to be free of unreasonable seizure.

K-9 OPERATIONS AND THE LAW

Download PDF Version of K-9 Operations and the Law

MASTER TRAINERS – THE GATE KEEPERS

There is a disturbing trend afoot in police canine organizations. When a master trainer fails a team there is often resentment and something worse.The team that failed will seek out another master trainer in an attempt to circumvent a failing grade with the first master trainer.

The motives of the canine team are easily understood. If they fail to certify they may not be able to work. A handler’s livelihood is at risk with a failed certification. So, they go in search of master trainer whom they hope is more lax and understanding of their plight. Sometimes this approach works. That is why it continues. I know of at least one national organization which expressly prohibits a failed team from ‘trainer shopping.’

However, handlers who fail certification also fail to understand the big picture. Instead of being resentful of the master trainer and then complaining about him to the executive board of the association, the handler needs to get his/her own act together.

Master trainers are the gate keepers of the canine community. They are master trainers for a reason, they earned their positions. Their job is to prevent unqualified teams from performing functions on the street that they are not qualified to perform. They are also there to assist struggling teams to achieve certification. Master trainers do not keep notches in their belts for each canine team they fail. They want you to succeed, but a good master trainer should not be afraid to fail you.

If a master trainer passes you just because he wants you to like him that master trainer is betraying his/her mission, you and your dog, the organization and the public you will be policing. He is also placing each of those at risk. A master trainer is not there to pass you. He/she is there to insure that you are competent to do the job on the street.

This has direct legal implications. Let’s say a master trainer certifies a team he knows should not have passed. He does it to avoid catching hell from the officers of the association. This team deploys on the street and one of several things occur. The handler is injured in a fight with a suspect when his dog failed to engage the suspect. An innocent person is injured when the canine disregards a command and engages the innocent person. A teenager dies from an overdose of heroin that made it to his school because you and your dog failed to detect it when you had the chance. A fleeing felony suspect escapes because you and your dog could not perform a track under less than challenging conditions.

If legal action results, you will have to answer tough questions. Worse yet, the master trainer who signed off on your certification and the association for which he works will be crucified. The entire certification process of the association may be called into question and the reputation of the association severely damaged or ruined just so you could pass your certification. Is that fair?

Most master trainers have a wealth of experience that they bring to the testing and certification process. They take their jobs seriously. You should too. If a master trainer gives your performance a thumbs down look at it as a starting point rather than an end. Take the chip off of your shoulder and speak with the master trainer. Find out where you fell short and seek advice on what you should do to turn it around. The master trainer will be glad to help you. Seek advice, work harder and get a certification which actually stands for something and will hold up in court.

SUPREME GUIDANCE

Ever since the U.S. Supreme Court agreed to review two canine cases from the Florida Supreme Court the canine community has been waiting to find out how the nation’s top court might change the rules of canine operations. I made my personal predictions on this website in the article Supreme Halloween. The answers were provided on February 19, 2013 and March 26, 2013. I am pleased to say that my predictions of how the Court would rule were correct in both cases. I provided my first formal instruction on these decisions last week at the A.P.C.A. spring convention in Shelby, North Carolina. Here is a look at the rulings in both cases and what they mean for you as a canine handler or supervisor.

Florida v Harris

The issue in Harris was: What level of proof is required to establish the reliability of a canine team when the canine’s alert forms the basis for probable cause?

The Florida Supreme Court held that the prosecution must produce records of a canine’s field performance in order to meet the reliability standard for a probable cause. On appeal, the State of Florida argued that a certification in narcotics detection should be all that is required to demonstrate reliability. Mr. Harris’ counsel argued that records of a canine team’s performance in the field is a critical part of the reliability test. The U.S. Supreme Court rejected both arguments.

In a unanimous 9-0 decision, the U.S. Supreme Court reversed the Florida Supreme Court and held that the prosecution could not be required to produce a canine team’s field performance records in order to meet the burden of proof for reliability at a probable cause hearing. I emphasize the word ‘require.’ Contrary to reporting about this case by several law enforcement websites and publications, the U.S. Supreme Court did not say that field performance was no longer a legitimate point of inquiry at a probable cause hearing. Any doubt as to this point was made clear by the following quote by Justice Kagan:

“Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we discussed, may sometimes be relevant as the Solicitor General acknowledged at oral argument(‘The defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate.’) And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause if, say, the officer cued the dog (consciously or not) or if the team was working under unfamiliar circumstances.”

All other aspects of the dog’s and handler’s training remain fair game for defense counsel during a probable cause hearing.

“The defendant may contest the adequacy of a certification or training program, perhaps asserting that its methods are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings.

The U.S. Supreme Court made two points which favor the canine profession. First, the Supreme Court found that records of training or controlled testing were a better indicator of a canine’s reliability than the uncontrolled variables associated with street deployments. Secondly, the Supreme Court threw cold water on the phrase ‘false positive.’ “A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone”

In the end, the Supreme Court maintained the evidentiary standard which had existed before the Florida Supreme Court attempted to raise the bar. The U.S. Supreme Court instructed trial courts to “weigh the competing evidence” and rejected any attempt to “impose an inflexible set of evidentiary requirements” on trial courts in determining whether a canine team is sufficiently reliable to support a finding of probable cause based upon the canine’s alert.

For canine handlers the path is clear. You must continue to train well and document both yours and your canine’s performance. Do not relax. Harris offered no reprieve from the rules which allow a defense attorney to challenge you and your dog’s reliability in court.

Florida v Jardines

The issue in Jardines was clearer and so was the ruling. The Supreme Court rejected as unconstitutional, the use of a trained detection dog to sniff the exterior of a private residence without a warrant.

In so ruling, the Supreme Court resolved the division which existed across the country regarding this practice, and affirmed the ruling of the Florida Supreme Court which also found this practice to amount to an unconstitutional search in violation of the 4th Amendment.

The ruling in Jardines may have been straightforward, but it was not without controversy. The Supreme Court Justices split 5-4, with a separate concurring opinion and a separate dissent.

The majority opinion rejected the practice on the basis that no homeowner gives implied consent for the police to bring a trained detection dog to their door to sniff for evidence of a crime. Therefore, the Court reasoned, such an entry is an unlawful trespass unless a warrant accompanies the canine team conducting the sniff. In fact, the Court held that a sniff under these circumstances IS a search, which is contrary to the Court’s prior rulings that a sniff of property is NOT a search. Clearly the focus was on the fact that this sniff is occurring at the front of a private residence versus the exterior of a vehicle on a public highway or baggage at an airport. In other words, the determining factor is the expectation of privacy which attaches to property at these various locations.

The concurring majority opinion focused upon the use of the canine as an enhanced detection tool. This brought the case directly in line with the Supreme Court’s prior ruling in Kyllo v U.S., 533 U.S. 27 (2001). In Kyllo the U.S. Supreme Court struck down the warrantless use of thermal imaging equipment by law enforcement as an unconstitutional search. The Court found that police were using an enhanced detection capability from outside of the residence to examine what was going on inside of the residence by measuring the output of electrical energy. The Jardines majority reasoned that the trained detection canine is no different than the thermal imaging equipment in Kyllo, i.e., the dog is an enhanced detection tool being used outside of the private residence to search the inside of a private residence without a warrant.

The dissent argued that people give implied consent for the police to come to their door to conduct a knock and talk and that they also give implied consent for neighbors out walking their dogs to come onto their property. The dissent reasoned that these two factors defeat the argument that the presence of a canine team is a trespass. The majority acknowledged the authority of the police to initiate a knock and talk at a private residence, but pointed out the clear distinction between a family pet and a canine trained to detect the presence of narcotics something to which nobody gives implied consent.

If your jurisdiction was utilizing this procedure, it must immediately end it as a policy. There is only one rule now, and that rule requires you to have a warrant before entering onto the curtilage of a private residence with a trained detection dog to conduct a sniff.

Become familiar with these cases. They will remain the law governing these aspects of canine operations for years to come.

– John M. Peters

SUPREME HALLOWEEN

On October 31st, the U.S. Supreme Court heard arguments on two canine cases which were on appeal form the Florida Supreme Court. The following are excerpts from the Court’s questioning and comments to counsel for both parties. While it is virtually impossible to predict the outcome of a case based upon comments like these, they do give an indication of how each Justice views the issues.

In Florida v Clayton Harris, the issue was what level of evidence must the State present in order to establish that a canine team was sufficiently reliable to justify a finding of probable cause based upon the dog’s alert? Florida argued against the extensive requirements imposed by the Florida Supreme Court, while Mr. Harris’ counsel argued in support of a standard, which allows the trial court to consider all records of the canine team’s training and field performance records and false positives.

Florida’s Attorney General faced very quick and focused questions, especially from the female Justices.

Justice Ginsburg set aside the issue of field performance, but asked why it was not proper for the Court to require proof “that the training program is reputable, some showing that the handler, not only the dog, has had training, it seems to me those two are not there’s nothing improper about that.”

Florida made the somewhat surprising argument that “the Fourth Amendment doesn’t impose an annual certification requirement.” Florida’s counsel argued that the Court should accept proof that the dog and handler successfully completed a program for narcotics detection work, and that no other proof of reliability was required.

Justice Sotomayor: “So, assuming there’s no national standards, then how do you expect a judge, without asking questions about the content of the certification process, the content of the training process, and what the results were and how they were measured, how do you expect a judge to decide whether the certification and the training are sufficiently adequate?”

“So, what does a judge do, just say, the police department says this is adequate so I have to accept it’s adequate?”

“What other case have we announced under a totality of the circumstances test, a absolute flat rule like the one you’re proposing? Where else have we said that one thing alone establishes probable cause – – that one factor alone?”

“How and when and who determines when a dog’s reliability in alerting has reached a critical failure number?”

Justice Kagan: “one thing I learned in reading all of this was that one difficulty here is that dogs respond to subconscious cues and that there are different ways of training that make that less or more of a problem.”

The U.S. Government argued that the Florida Supreme Court was wrong to require the government to produce the extensive list of training and field performance records “any time it seeks to establish probable cause based upon a dog alert.”

Justice Kennedy (often considered the swing vote on close decisions) challenged that argument head on: “And judges do this thousands of times in thousands of cases It’s a question of whether or not the trial judge made a correct determination in determining that there was or was not probable cause for the police to proceed. It just happens every day.”

Counsel for Clayton Harris faced similar challenges. Referring to the Florida Supreme Court’s list of what the State must produce in order to establish that a dog’s alert provides probable cause, Justice Breyer pointedly asked, “what in the Constitution requires that list?”

Justice Ginsburg: “The Florida Supreme Court seems to say field performance records are required.”

Justice Scalia: “I thought what the Florida Supreme Court was saying is if you didn’t produce it, the dog’s evidence would not be allowed – – the search is invalid.”

Justice Ginsburg: “Are you conceding that the Florida Supreme Court, at least with respect to the field performance records, was wrong, that it is not a Fourth Amendment requirement?”

Other Justices focused upon the question of residual odor alerts as an indicator of reliability.

Justice Alito: “[w]hat can one infer from the fact that a dog alerted a number of times when no contraband was found?” “- -when nothing is found, how can you tell whether the dog alerted to a residual odor or simply made a mistake?…the fact that you don’t have evidence of that doesn’t mean that there wasn’t residual odor.”

Justice Ginsburg: “Can the police establish probable cause when what the dog alerted to may well have been residual odor and nothing inside?”

Chief Justice Roberts: “What percentage of accurate alerts or inaccurate is enough for probable cause.”

Justice Scalia: “They (the police) like to search where they’re likely to find something, and that only exists when the dog is well trained, It seems to me they have every incentive to train the dog well.”

It appears that the U.S. Supreme Court is bothered by what it perceives as a requirement by the Florida Supreme Court that the government must produce field performance records in order to establish probable cause. Mr. Harris’ attorney seemed to agree that there is no such requirement in the law. Instead, he argued that the government should be required to produce field performance records if they exist as part of the totality of the circumstances test for probable cause. The Supreme Court appears to favors a rule which gives the trial judge full discretion to inquire into all other aspects of the training and certification of a canine and its handler where probable cause is challenged.

In Florida v Jardines, the Supreme Court was being asked to decide whether the use oa a drug detection dog by the police at the front door of a private residence requires a warrant. The Florida Attorney General argued against the warrant requirement while, Mr. Jardines attorney argued in favor of it.

The government’s argument began with the proposition that nobody enjoys a 4th Amendment expectation of privacy when they are in possession of contraband. The Justices immediately challenged this argument.

Justice Kennedy: “What you’re saying is, oh, well, if there is contraband in the house then you have no legitimate expectation of privacy. That, for me, does not work.”

Justice Sotomayor: “[t]hat is circular. Then why do you need a search warrant? If you have no expectation of privacy in the contraband, why bother even with a search warrant.”

Justice Scalia: “[i]t seems to me crucial that this officer went onto the portion of the house that – – as to which there is privacy, and used a means of discerning what was in the house that should not have been available in that space.”

The Florida AG argued that “there has always been implied consent by a homeowner for “people, visitors, salesmen, Girl Scouts, trick-or-treaters, to come up to your house and knock on the door”.

His argument was quickly countered:

Justice Sotomayor: “Yes, but not implied consent for the policeman to come up with the dog.when the only reason for having the dog is to find out if there is contraband in the house.”

Justice Ginsburg: “This is not any dog. This is a drug detection dog.”

Justice Scalia: “When the purpose of the officer’s going there is to conduct a search, it’s not permitted.”

Mr. Jardines counsel found equally rough sledding when he argued that police action which reveals any detail which an individual seeks to keep private is a search.

Justice Kennedy: “[t]hat is just as sweeping a proposition that in my view, at least, cannot be accepted in this case. I think it’s just too sweeping and wrong.”

Justice Alito: “I think your first reason is so broad, it is clearly incorrect.”

Jardines’ counsel advanced his second argument, that when police bring a trained narcotics dog to the front door of a private residence it is a 4th Amendment search because the entry is a trespass. He underwent some heavy questioning and challenges from the Justices about whether the police are engaged in a trespass when they come onto the porch of a private residence.

Justice Alito: “[d]o you have any authority for the proposition that this would be a trespass? Any case that says this is – – any trespass case in the last five hundred years in any English-speaking country?”

Jardines’ counsel countered by making the distinction between a police officer coming to the front door or a police officer with a trained narcotics detection dog. “When it’s a dog trained to detect contraband, there’s no question that no one impliedly consents to that happening and there’s no question, as Justice Breyer pointed out, that a homeowner has a reasonable expectation of privacy that that’s not going to happen.”

On rebuttal, Florida’s counsel was confronted about the use of the dog as a tool to enhance the ability of the police to search inside the home from outside the home without a warrant.

Justice Kagan: “I think, Mr. Garre, that you have to concede that this is a case about police use – – call it a technology, call it whatever you want to call it – – of something that enhances what normal people can sense, And then the question becomes, do you have a reasonable expectation of privacy in, basically, people just having their normal senses, rather than some technique or method or technology that enhances those senses?”

It is very difficult to speculate where the Supreme Court will go on this issue. The Court appears uncomfortable regarding the use of a trained narcotics detection dog at the front door of a private residence without a warrant. Florida’s argument that the alert is only being used to obtain a warrant may not help the State. Accepting Florida’s argument, the Court may rule that this method is too limited in value and too intrusive in nature to when weighed against a citizen’s reasonable expectation of 4th Amendment protection within their home. It is quite possible that even if the Court approves warrantless front door sniffs, they will impose a higher burden on the showing of reliability of the canine team required under Harris. It is more than mere coincidence that the Supreme Court granted leave to review both Harris and Jardines and heard arguments on both cases on the same day. Regardless of the decisions, there will be clear lines drawn for the police canine community and the lower courts considering these issues in the future.

Your Records Will Matter

BY John M. Peters, Attorney at Law

Keeping records is one of the least-liked yet one of the most important aspects of your job as a canine handler. Recording information is a job skill, no less important than your ability to handle a dog. The failure to record, organize and learn from information involving the performance of you and your dog will lead to disaster in many forms.

What:

Records include training records and deployment records. Training records must include more than a date and time that you attended training. They should detail how you and your dog performed each time you attempted an exercise, whether it was a call-off, a track or a search. Deployment records should include details unique to your canine function and should not merely be a copy of the incident report. Because cainine deployment is a use of force, your records should include the nature of the crime, any threat to you or others, risk of flight and warnings given. For reasons explained below, any recurring event that involves you and your canine is an event worth recording the details of.

How:

Records can be kept in paper or electronic form. Your records should be organized and indexed in a manner which allows you to easily reference a given record. You do not want to be pouring through hundreds of pages of records at the last minute trying to find a single record. Indexing can be chronological and/or by subject matter. Training records and deployment records should be kept separately. If you are keeping paper records, make sure they are kept in a secure and easily retrievable location. Years of paper records stored in a basement can be destroyed by water in an instant. If you are keeping records electronically, back up your records to an electronic storage device such as an external hard drive and then secure that device in a safe if possible.

When:

Records should be created as close to the event they are recording as possible. The reason is simple. Memory does not improve with time, it gets worse. The same applies to witnesses who may disappear over time. You are more likely to make an accurate record of an event if you do so at the time of the event or immediately thereafter. Lapse of time will result in information gaps, changed perceptions of events, a tendency to fabricate details, and a tendency to selectively record the event. Cross examination can destroy the credibility of an officer who tries to reconstruct records after the fact. Records are like baked goods they are best when they are fresh.

Where:

Records should be created before leaving the scene if possible. This is true whether the records are of training or deployments. Creating records at the scene not only assures that they are fresh, but allows you to refer back to people or things at the scene for confirmation of what you record about the event. If you cannot create the record at the scene do so at your next destination. That may be a restaurant, the station or home. What is important is that you create the record in an environment which allows you to reduce time lag between the event and the report and in a location which will not produce too much distraction.

Why:

First, the records will be required to support your training and experience, your canine’s training and experience and your deployment decision and methods. Whether you are called to testify regarding the track of a supsect, a bite apprehension, a canine alert which led to a search or a warrant request, yours and your dog’s training will be directly at issue. You cannot establish competency without training and you cannot establish training without records.

Secondly, if you do not have records when they are requested in a civil or criminal case you could be subjected to various forms of sanctions. Under the legal theory of “spoliation,” a party who is required to maintain certain records must produce those records when they are formally requested in litigation. The failure to produce the records can result in everything from a default judgment being entered against you to the court instructing the jury that they should consider your failure to produce the records as evidence against you in the case.

Thirdly, your records are perhaps the best study tool you will ever have. Better than any handout you receive at a seminar, your records are a road map to what you and your dog are doing right and what you are doing wrong. Consistently maintained records of training and deployments will display unmistakable patterns in yours and your canine’s performance which will allow you to make adjustments where necessary. If your records reveal deficiencies in training or deployment performance and you fail to demonstrate that you worked to correct those problems that will work directly against you in any legal proceeding.

Record keeping is not easy, but it is an essential requirement of any canine handler’s job. It takes discipline and focus to produce good records and to learn from those records. However, the price for failing to maintain good records is simply too high to pay. Start evaluating how you keep your records today. Once you are in court it will be too late.

A PICTURE/VIDEO IS WORTH A THOUSAND WORDS

NATIONAL SURVEY ANNOUNCED

BY Charles N Braun II, Attorney at Law

All police procedures have to be done properly under the law and more importantly there must be proof that they have been done correctly. This is certainly true when it comes to police handler/K-9 activity, and perhaps more so.

It is commonly known that the “CSI affect” is making it very challenging to obtain successful prosecutions in criminal court. Scientific evidence and the scientific approach is expected by a growing number of jurors, no matter the issues. The simple fact is that with greater amounts of scientific/technology based evidence, the greater the chances are that a conviction will be obtained (or the more motivated the defendant will be to enter into a plea bargain). This also applies to civil liability cases as well.

It is the opinion of this writer that the police K-9 field presents a great untapped arena for the pursuit of the “CSI affect” in court that is demanded by jurors of today. There is one very unique aspect of the police K-9 approach. While animals cannot testify from the witness stand at trial, under the rules of evidence, certainly pictures or videos of the police K-9 in action during search and seizure or apprehensions, can. Of course, police officer witnesses (including the police K-9 handler) as well as civilians, have always been allowed to testify at trial in terms of what they observed the K-9 do. As an expert witness in court regarding law enforcement and private security excessive force cases, I find that eye witnesses will extensively testify regarding the exact apprehension procedures utilized by the police K-9 handler and his/her dog at the time of the suspect’s arrest. Frequently, I find that these eye-witness accounts can vary tremendously in terms of what the police K-9 handler and the dog actually did. Ask any experienced detective about the weaknesses of eye witness accounts.

In order to better meet the “CSI affect” in police K-9 search and seizure cases and to better document use of force events involving police K-9s, it is strongly suggested that as many pictures/videos be take as possible in every case involving the police handler/K-9. A department SOP should be developed which addresses the use of photography/videotaping and for court chain of custody/storage issues should be covered as well.

Under the rules of evidence, a picture or a video can be frequently introduced at trial and said evidence has the same affect as being an actual eye-witness account of the events. This approach was especially relied upon by the U. S. Supreme Court in a major use of force case: Scott v. Harris, 127 S. Ct. 1769(2007). In this case the ramming into the rear of a fleeing felon’s automobile by a police vehicle was sanctioned as justifiable police use of force in large part due to the U.S. Supreme Court’s review of the police pursuit vehicle’s in-car camera video which, according to the Court, showed that the fleeing felon was operating his vehicle in such a manner that he was likely going to ultimately harm persons in the community. The Supreme Court has given law enforcement a green light to more aggressively use technology (photography/videos) and the police K-9 team should get into the action as well.

Besides the documentation of police handler/K-9 training or of the actual events of a case, the use of photography/videos is a good public relations tool with the jury (many people young and old like to see police K-9s).

Finally, the above approach has the impact of allowing the police dog to visually testify during a trial (through the pictures/videos) and thus connect to a very powerful rule of persuasion: A picture is worth a thousand words.

While the Federal Rules of Evidence have a strong bearing on the rules of evidence at the state level, they can significantly vary. In light of this article, and its publication with the APCA website; the author of this article is initiating a voluntary and informal national survey of all APCA members and readers of the APCA website. If interested, no later than July 1, 2012, please contact Attorney Charles N. Braun, II, at his e-mail address: b.atty@sbcglobal.net and please share your personal experiences with respect to courtroom and evidence experience related to a any of the following: (1). Good/bad experiences with pictures/videos being produced during K-9 training/search/seizure/apprehension events; (2) In what ways, if any, have your police K-9s been allowed to appear in court before the judge/jury; and (3) To what extent have pictures, videos, or even audio recordings, of your police K-9 been introduced at your court hearings/trials, and usually under what rules of evidence, if known. After the survey concludes, the author of this article will compile the survey results and publish observations in a future article to be published on the APCA website so that everyone can benefit from each individual K-9 officer’s experiences. You are thanked in advance for your willingness to provide information for this national survey.

John M. Peters

johnmp

John M. Peters has been a trial attorney practicing in the area of police liability for thirty years. John is admiited to practice before the state courts of Michigan, including the Michigan Court of Appeals and the Michigan Supreme Court, the U.S. District Courts in Michigan Tennessee, Wisconsin and California and the U.S. Court of Appeals for the 6th Circuit. John’s involvement in the sport of Schutzhund intersected with his legal expertise and led to requests for John to serve as an instructor and author for police canine programs, publications and organizations. John currently serves as a legal advisor to several police canine organizations and as an author for Police K-9 Magazine and K-9 Cop Magazine. John can be reached at caninelawyer@gmail.com

TRACKING EVIDENCE IN COURT

Recently, I was a speaker at the APCA National Conference in Hobart, Indiana. While checking in at the motel, I met Officer Steve Morgan from Owensboro, Kentucky. We had a discussion about tracking which included his experience in a tracking case which led to the arrest, conviction and life sentence of a kidknapping and robbery suspect. This article will use Officer Morgan’s experience to demonstrate the essential elements of a tracking case.

Like all other forms of evidence, there are rules which determine whether tracking evidence will be admissible in a criminal trial.

The courts utilize a four point test for the admission of tracking evidence:

The handler must be properly trained and qualified to perform the tracking.
The canine is properly trained to track AND has proven successful in tracking humans in the past.
The canine was placed upon the trail at a point where the suspect had been at some point.
The trail had not become stale due to lapse of time or contamination.

Each of these elements will be subjected to challenges and questioning by a defense attorney before the court rules upon whether the tracking evidence will be admitted. Ultimately, the trial judge has complete discretion to admit or reject the tracking evidence.

Even where the tracking evidence is admitted at trial there must be other corroborating evidence to convict. That is because most jurisdictions are concerned about jurors placing too much weight upon tracking evidence to the exclusion of other evidence. Four states – Illinios, Indiana, Nebraska and Montana – completely bar tracking evidence in criminal trials.

The reason behind this exclusion and the requirement for corroborating evidence in other jurisdictions is the hearsay rule. In a tracking case the witness is the canine. Since the canine cannot speak it cannot be cross-examined. Out-of–court evidence which is not subject to cross-examination is hearsay evidence and is considered unreliable.

Officer Morgan’s case (Debruler v Commonwealth of Kentucky – 2005-SC-000989-MR) provides a good demonstration of these elements.

In Officer Morgan’s case two canine teams were deployed after the suspect was in custody. The purpose of the track was to attempt to corroborate one of the victim’s statements regarding the location of the attempted abduction and the path of flight of the suspect. A bag containing clothing taken from the suspect after his arrest was taken back to the location where the minor child claimed to have been grabbed by the suspect. Each canine was given the scent from the clothing and began to track from the point where the victim claimed the abduction occurred. Both canines tracked an identical path which ended at a fence where the victim stated that the suspect hopped over and fled down an alley.

Elements 1 and 2 – Training:

Officer Morgan was able to satisfy the Court of his training in tracking with his canine. The Kentucky Supreme Court noted that Officer Morgan and his canine, Bady, have been “certified by the United States Police Canine Association and competes twice a year to maintain this certification.” The Court made similar findings with respect to the second canine team – Officer Howard and canine Denise. “She had been certified in tracking by the Owensboro Police Department and is recertified every year following thirty two hours of additional training…she completes practice runs every week.”

Element 3 – Trail Verification and Corroboration

Officer Morgan and his fellow canine handler were directed to the area where the minor chilod indicated she had been grabbed by and struggled with the defendant.

This satisfied the third element of admissibility of the tracking evidence – verification of the defendant’s earlier presence at the location. It also partially satisfied the requirement for conviction – the existence of corroborating evidence. The potential victim was able to corroborate the canine teams’ matching tracks of the defendant’s path of flight.

Element 4 – Track Condition

Debruler argued that the tracking evidence should not have been admitted because (i) the trail had been contaminated by the back and forth traffic of police officers at the scene and (ii) the too much time had elapsed for the canines to be reliable.

The 4th element of the test requires that the trail had not become stale due to lapse of time or contamination. However, even older tracks with cross-contamination may be admissible as long as you present evidence of yours and your dog’s ability to successfully track in such conditions. The Kentucky Supreme Court emphasized this fact when it noted that “No evidence was presented that Bady and Denise were ineefective because the scent had been lying over seven hours, nor was any evidence presented that the dogs could ot distinguish between the desired track and other crossing tracks. In fact, the officers both specifically testified that the dogs could follow trails several hours old, and that both dogs displayed the ability to discriminate among multiple, overlapping tracks.”

The above elements of Officer Morgan’s tracking case are common to every criminal trial where tracking evidence is offered by the prosecution. The elements are not equally weighted. The test is more of a balance among all of the elements. If one element is weaker, it can be offset by strength in the remaining elements.

What was most significant about Officer Morgan’s case was the defendant’s argument that tracking evidence is subject to the Daubert test for scientific evidence.

The Daubert test is utilized whenever evidence rises to the level of scientific evidence. Debruler argued that he should have been entitled to a Daubert hearing in order to test the scientific reliability of the tracking evidence. The Kentucky Supreme Court, siding with the rule in most other jurisdictions, rejected defendant’s argument.
“Here, Officers Howard and Morgan did not testify as to any scientific technique, theory or methodology. Nor did either officer testify as to the scientific explanation of a dog’s ability to track a scent. Rather, their testimony was limited to their personal observations of the dogs’ actions, and their interpretation of these actions based upon experience and training.”

It is unclear whether tracking evidence could survive a Daubert test, but the good news for canine teams is that no jurisdiction has ever required such a test. This actually reduces the burden on having tracking evidence admitted at trial.

In columns to follow, you will hear me repeat two words: “training” and “records.” They are essential to everything you do as a canine handler. Officer Morgan’s tracking case is a good example. If he had not trained properly his tracking evidence would have been excluded at trial. Even with proper training the evidence would not have survived a challenge if Officer Morgan did not have records to document his and his canine’s training as well as the steps taken by them on the night in question. Worse yet, the exclusion of the evidence might have allowed a second degree, persistent felon to walk away without conviction.

I want to thank Officer Steve Morgan for sharing his expereince with me, with others in the legal class taught in Hobart and through this article with his fellow handlers in the canine community. The best instruction comes from the real life experiences of officers like Steve Morgan which bring classroom theory into reality.

John M. Peters has been a trial attorney practicing in the area of police liability for thirty years. John is admiited to practice before the state courts of Michigan, including the Michigan Court of Appeals and the Michigan Supreme Court, the U.S. District Courts in Michigan Tennessee, Wisconsin and California and the U.S. Court of Appeals for the 6th Circuit. John’s involvement in the sport of Schutzhund intersected with his legal expertise and led to requests for John to serve as an instructor and author for police canine programs, publications and organizations. John currently serves as a legal advisor to several police canine organizations and as an author forPolice K-9 Magazine and K-9 Cop Magazine. John can be reached atcaninelawyer@gmail.com

HOW TO DEFEND YOUR POLICE K-9 PROGRAM IN COURT

by Charles N. Braun II, Attorney at Law

Everything that law enforcement officers do while performing their duties can potentially become issues in court – criminal, civil, traffic/infraction, or even in terms of police department labor law/police administrative disciplinary hearings. Therefore, it is important for the police K-9 handler to know how to effectively defend both his/her actions as handler and the actions of the K-9 as well. What follows is a checklist of suggested strategies for making the best possible impact in court.

Documentation which supports the testimony of a witness and becomes an exhibit in court will generally make a stronger impression on the judge/jury than a witness who simply generally testifies from memory. Therefore, ideally, strive to produce documents which back up the significant factual assertions testified to by the police K-9 handler in court.
When purchasing a police K-9 from a private company or public agency, obtain and keep all relevant records regarding such matters as:
1. The history of the company/agency from which the K-9 has been obtained from, especially its history in terms of its connection to police K-9 matters (like the number of dogs raised, trained, and sold as law-enforcement dogs; their track record of success in lawsuits or in court; whether or not the company/agency officials have served as expert witnesses in court; and a history of company clients (military, corrections, homeland security, and especially law enforcement clients);
2. If company/agency officials have authored books or articles on the K-9 subject, get and keep copies of them on file as these can be referred to at trial;
3. Obtain complete documentation of all training required, administered, and tested, regarding the purchasing department’s handler/K-9. If videos were made during such training, get copies as well, since they can be significant if introduced at trial.
Obtain and keep books/articles dealing with the subject of K-9s and how their senses are different than humans. These could be introduced at trial in order to defend the “science” of using K-9s in law enforcement. In the era of the “CSI effect”, there is a greater need to defend the use of police K-9s via the scientific approach, by explaining just how more powerful K-9 smell and hearing senses are when compared to a human being.
Some states require mandated basic/in service training before a police K-9 handler/dog team can carry out duties. If this is the case, obtain copies of all related training/certification paperwork, and have it ready to be introduced at trial. If your state, like Indiana, does not require K-9 handler/dog team certification, then what was stated in check list item #2 and #3 above become even more crucial.
Once the K-9 handler/dog team begins performing duties, keep good records regarding:
1. Length of service for the team;
2. Number of cases where duties were actually performed in terms of tracking, search and rescue, apprehensions, and contraband recovery, as examples;
3. Success rates in the field and ultimate success rates in court;
4. Any continuing education/in service training obtained; and
5. Commendations/awards verses discipline. No one is perfect and a 100% success rate is not expected and admitting errors is not only required to be acknowledged while testifying under oath but also makes the K-9 team more believable.
We live in a visually oriented society – therefore, it would be ideal to document individual police K-9 cases with videos (perhaps from the police vehicle mounted video camera) and/or pictures showing the team in action and the results achieved (like a picture of the K-9 locating the actual drugs). In an apprehension case, if God forbid, either you or your K-9 are injured, take videos/pictures of these injuries and be prepared to introduce these at trial. It will document the level of active resistance demonstrated by the suspect.
Develop professional connections with other police K-9 handlers so that you keep abreast with current practices and so that if need be, these individuals can go to court on your behalf and be willing to state that what you and your K-9 did is within the current state of American law enforcement police K-9 practices. Also join professional organizations, like the one who sponsors this website, so that you can bolster your credentials.

While the rules of evidence in court are the main concern of the judge and lawyers involved, everything suggested above will certainly make the lawyer’s job much easier in defending you in court. If you try to produce what has been suggested above only when the issue arises, it will be impossible for you to effectively reconstruct everything called for. In addition, I have found that many lawyers tend to skirt over police training issues by simply having the officer verbally testify to these items mentioned above in very brief fashion. Just because you state a matter from the witness stand does not make it true – you need to prove it with documentation. Therefore, encourage your attorney to use this documentation as exhibits. This is especially true given that usually only one-half of the team will be present in the courtroom – therefore videos and pictures of your police K-9 in training sessions or in action will be crucial in order to make a connection with the judge/jury.

In the end, remember that in court both you as the dog handler and your police K-9 will be both put on trial and be the subject of attack, Your team’s credibility, trustworthiness, reliability, effectiveness, credentials/training, experience, adherence to accepted scientific principles and to the customary and accepted protocols/procedures for police K-9 handlers/dogs, and your behavior from start to finish in any individual case, will all be litigated. By preparing for the battle with the suggestions put forth in this article, you will significantly enhance your team’s ability to win in court on any issue.

Charles N. Braun
Attorney at Law
11935 Glen Cove Court
Indianapolis, IN 46236
(317) 823-0289
Email: b.atty@sbcglobal.net

Mr. Braun has practiced law for 32 years in both federal and state court. He has worked for the U.S. Department of Justice, he served as a Deputy Attorney General for the State of Indiana, is a graduate of the FBI National Academy for police legal advisers, has taught at several universities, is an author, and has personally trained thousands of police officers during his career.

Legal Checklist for Police K-9 Officers

This is the first article for what is hoped to be a regular column for the APCA webpage. It is designed to feature both legal issues of common interest and practical matters stemming from said legal standards for police K-9 officers. Legal information for both the large and small size law enforcement agency that has a police K-9 program will be included.

As an attorney who has practiced for 31 years in both federal and state court, focusing on criminal justice/law enforcement matters of all kinds, I hope to give the reader tips and suggestions that can help improve the actions of police K-9 officers and at the same time assist them in ways that will help to reduce the risk of exposure to civil liability, criminal; prosecution, internal departmental police disciplinary action, and other legal controversies. Since I have aggressively represented or trained both law enforcement management and rank and file officers over the years, I hope that this regular feature will benefit all who read it. What follows is a checklist of matters (based on my years of study, teaching and lawyering) that every police K-9 officer (federal, state and local) should be concerned with, regardless of who that officer is employed by.

Are there department standard operating procedures (SOP’s) concerning the activity of the K-9 officers and their dogs? If so, are these SOP’s legally sound, appropriate, teachable, understandable and from a practical standpoint actually usable?
Is there a clear vision, possessed both by management and K-9 handlers alike, regarding what the essential mission/role of the K-9 handler and dog is to be? Do other officers on the department understand their clear vision?
While there are no mandatory federal standards for police K-9 officers and their dogs, have all of the state level (if any) certification requirements been met as well as any continuing education requirements?
Are the requirements dealing with mandatory overtime of the Fair Labor Standards Act (FLSA) under Federal law pursuant to 29 U.S.C. Section 201 et seq.and the regulations of the U.S. Department of Labor found at 29 CFR being complied with?
Are the first responder training requirements (especially for search and rescue K-9 handlers and their dogs) dealing with hazardous material emergency response personnel under EPA and OSHA regulations under 29 CFR 1910.120 being complied with?
Are the training and equipment issuance requirements concerning blood borne contagious diseases from OSHA pursuant to 29 CFR 1910.1030 being met?
If any special state or local labor laws exist concerning police K-9 officers and their dogs, are these being complied with?
If a collective bargaining agreement exists for the employing agency, if there are provisions controlling police K-9 officers and dog action, are they being upheld?
Is there a contract or written memo between the employing department and the K-9 handler/dog that clearly states who owns the police K-9 in the event of retirement, death, or termination of the K-9 handler?
Are department records kept, for Brady purposes, of all credibility issues regarding the police K-9 in terms of training/testing, mistakes made, and success rate calculations in terms of performance issues such as success rate for finding injured/dead people or discovery of contraband both on suspects in vehicles or residences?
For the purpose of using police K-9 evidence is there a courtroom strategy for introducing the evidence?
If the police dog is allowed to be unleashed as an apprehension dog, is there a department use of force policy dealing with this issue?
If the police dog bites or otherwise injures a citizen (from a suspect intentionally, to a police officer accidentally) is there a standard injury protocol followed along with required documentation?
Are nearby police agencies put on notice and educated in terms of how to act in the presence of the K-9 handler’s dog so that confusion is eliminated and the risk of accidental bites to fellow officers is kept down to a minimum?
Is there a clear department understanding between management and the K- 9 handler in terms of who needs to approve all veterinary related expenses so that the police K-9 gets the best possible health related care possible?
How is police dog performance determined so that a proper decision can be made in terms of when the police dog should be retired?

Attention to all these matters will certainly help to produce a higher quality department police K-9 program.

Charles N. Braun II
Attorney at Law
11935 Glen Cove Court
Indianapolis, IN 46236-9008

Mr. Braun has practiced law for 31 years in both federal and state court. He has worked for the U.S. Department of Justice, he served as a Deputy Attorney General for the State of Indiana, is a graduate of the FBI National Academy for police legal adviser, and has personally trained thousands of police officers during his career.