Amtrak Officer Misleads Traveler About Drug Dog Behavior In Order To Perform An Illegal Search

from the the-tool-that-does-it-job-even-when-it-does-nothing-at-all dept

Thu, May 5th 2016 3:33pm — Tim Cushing

Drug dogs are permission slips for warrantless searches. That's it. They may have been legitimate when they first became part of law enforcement work, but they've devolved into malleable props in the ongoing farce that is the the Drug War. Despite these failures, they're heralded by law enforcement as superpowered miracle workers who can do things like sniff out hidden people in moving vehicles full of other (non-hidden) people.

Dogs often alert to nothing at all, either because they're relatively terrible at sniffing out contraband or because they're responding to cues (conscious or unconscious) from their handlers. Drug dogs have also been spotted alerting enthusiastically to things they have a natural fondness for, like sausages and cheese. And, because a drug dog can be said to have done whatever a cop says it's done, they can be used to "justify" a warrantless search even when they've done nothing at all. (h/t FourthAmendment.com)

Shaun Estes, who was traveling by train from Chicago to California, was confronted by Amtrak detectives (yes, there is such a thing) while smoking a cigarette during a brief stop in Reno, Nevada. Detective Madhu Kurup approached Estes based on nothing more than the fact that Estes' one-way ticket had been purchased with a credit card belonging to someone else. Seeing this on the passenger manifest, Kurup requested the assistance of local officers and their drug dog. That's when things went from bad to worse to farcical.

Estes was asked if he was carrying any drugs, weapons or [cash register noise] "large amounts of money." Estes claimed he wasn't. Kurup asked for permission to search Estes' cabin and belongings. Estes refused. Kurup then informed him that a drug dog was on the way and that his belongings would be seized while a warrant was obtained if the dog alerted.

From the suppression order:

When the police dog was led down the hallway by Estes’ room, it showed some interest outside of the room, but did not “alert” on the room. The officers knew they could not seize Estes’ belongings and obtain a search warrant due to the lack of a positive alert by the dog.

That's what the detective knew. But this is what he actually did.

However, Kurup did not advise Estes that the canine had not alerted on Estes’ room. Instead either Kurup or Moore told him that the dog had shown strong interest in the room. According to Kurup, Estes then responded that he had a small amount of marijuana in his room and he then gave his consent to Kurup to search the room and Estes’ baggage. According to Kurup, Estes opened his luggage bag in the room and removed a small bag of marijuana and Kurup then, with Estes’ consent, searched the remainder of the bag and found a 9mm Kel-Tec handgun.

The government tried to claim Estes had voluntarily consented to the search. Estes maintained there was nothing "voluntary" about the entire situation -- beginning with him being ordered to end his phone call all the way through to the officers' misleading portrayal of the drug dog's actions. The court agrees with Estes.

The United States has not met its burden to show that consent by Estes was freely and voluntarily given. When initially asked, Estes expressly refused to consent to the search of his room or his bags. Kurup then advised Estes that a police dog would be deployed and if the dog gave a positive alert, Estes’ items would be seized and a search warrant would be obtained. The threatened seizure of Estes’ bags is significant when it is considered that Estes was traveling by train across the country, and this incident was occurring during a brief stop along his journey to California. Then, shortly after being told that an alert of Estes’ room by the police dog would result in his bags being seized, Estes was informed that the dog had shown strong interest in the room. No one explained to Estes the difference between an “interest” and an “alert” by the dog, and it was shortly afterward that the disputed consent by Estes was given. The context in which the statements were made strongly suggested that if Estes did not now consent to a search, his bags would be seized and a search warrant would be obtained. Particularly after refusing to consent to a search just minutes before, the court does not find that a free and voluntary consent to search then occurred.

Going further, the court notes that it is "troubled by the lack of credibility which permeates Kurup's testimony in this case."

First, there's Kurup's portrayal of his premeditated search attempt as something approaching serendipity.

Kurup described a very consensual and casual conversation with Estes on the train platform. The fact is that the encounter with Estes had been carefully planned by the drug interdiction team composed of Kurup, Detective Moore, and canine Officer Hill. The only purpose of their being together at the Reno train station was to confront Estes and to act within an approximate ten to fifteen minute period of the train’s temporary stop. When Kurup approached Estes on the train platform, there was an obvious immediacy in the encounter. The denial by Kurup of Estes being involved in a cell phone conversation on the train platform, of directing Estes to get off the phone and not hearing repeated return calls by Erika Dean in the several minutes following the conversation, raises serious questions concerning Kurup’s description of a seizure-free atmosphere surrounding Estes as well as Kurup’s credibility in general.

Then there's Kurup's misleading depiction of the drug dog's actions.

Further concern arises after the dog did not alert to the room, which was a fact only appreciated by Kurup and the police officers. Notwithstanding the clear lack of probable cause for a search and seizure, Estes was then informed that the dog had shown serious interest in the room. Estes would likely have no idea of the difference between an alert and only interest in the room. The “serious interest” comment was obviously imparted with the hope that it would bring about a consent by Estes to a search of his room and luggage. At no time was Estes told of his right to refuse consent.

Finally, while Kurup alleges Estes gave consent, there is no independent verification of this actually happening.

Kurup’s credibility is further strained by the consent then attributed to Estes. Although Kurup and the two police officers were at the train stop together for the ten to fifteen minute period for the specific purpose of investigating Estes and his possible involvement with drugs, Estes’ voluntary consent to search testified by Kurup was not witnessed at any time by either of the two police officers. No attempt was made by Kurup to have Detective Moore or Officer Hill witness or confirm the alleged consent by Estes, no attempt was made to create an audio recording of Estes’ consent, and no attempt was made to obtain a written consent from Estes although a consent form is a standard form used in Reno police investigations.

And, just like that, the marijuana baggie and illegal weapon are gone. The average citizen isn't going to know the difference between "interest" and an "alert" when watching a drug dog in action -- something officers like Kurup are more than happy to take advantage of. And, as this case highlights, the difference between the two apparently has little effect on law enforcement's actions. Kurup likely thought he had a chance to snag a pile of guilty cash or at least participate in a decently-sized drug bust. Instead, all he found after misleading Estes and engaging in a warrantless search was an illegal possession charge -- one that won't stick with all of the supporting evidence stripped away.

Drug-Dog-Suppression (PDF)Drug-Dog-Suppression (Text)

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Filed Under: amtrak, drug dog, illegal search, madhu kurup, shaun estes

36 Comments

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no name of that name, 5 May 2016 @ 3:43pm

there is only one solution
and its final anyone that works for the state is guilty of a crime against humanity send all of them to the Hague
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Anonymous Coward, 5 May 2016 @ 4:47pm

That rule of law sure is inconvenient, huh?
Protecting the guilty from that illegally acquired evidence....

Or is it forged evidence? Did they actually have evidence of finding those things at the scene other than the detective saying they did?
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Anonymous Coward, 5 May 2016 @ 5:27pm

I hereby reserve all of my rights without prejudice
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Kratoklastes (profile), 5 May 2016 @ 5:40pm

Drug Dogs respond to handler cues
I am surprised that the writer of this piece didn't mention the now-established fact that drug-detection dogs (and explosives-detection dogs) are strongly influenced by 'cues' from their handlers.

See, for instance, "Handler beliefs affect scent detection dog outcomes" Animal Cognition 2011 May; 14(3): 387–394. (doi: 10.1007/s10071-010-0373-2).

My take on it - based on my very VERY dim view of anybody who wants to be a cop - is that all pigs (including Amtrak's version of Paul Blart) should be required to use body cameras at all times... and furthermore that no arrest should be considered valid, and no evidence from a pig should be accepted, if the camera ain't rolling. The State has a massive advantage over the tax-livestock, and so its case should need to pass the highest possible hurdle and its evidence should need to be unimpeachable. (Bad people might go free under such a system - but only if the pigs don't comply with the rules).

Why such a set of constraints? Well, the median pig has is a pretty stupid individual and was a high-school under-performer (exhibit A: many of them are former military ORs - known since the detritus of the labour market; exhibit B: they reveal a fortiori that they want to wield power over other people, but are restricted to the very bottom of the range of careers open to megalomaniacs).

These are not traits that select for honestly or adherence to rules that force the State into rights-observance.

Plus, there's that whole "signing up to enforce the law, regardless of how obviously-wrong the law is" thing... the psychotype of people who turned up for work at Auschwitz (/godwin).

Pigs are worse-than-Beta, at the median - leaving aside the whole puppy-shooting schtick (and the '12 year olds get executed if they don't comply within 2 seconds'), just ask any woman who has gone out with a pig, how things go when the relationship ends. Small-N samples are problematic, but I know about a dozen women who dated cops (and 5 men) - and every single one of them was harassed when they put an end to the relationship. (This is more evidence that pigs are psychotypically abnormal).

I'm in no way religious, but Erasmus really nailed it when discussing the sort of person who is attracted to the 'profession' of soldiering - and the same type of person (albeit a slightly-more-cowardly version) is attracted to law enforcement.

From Erasmus' Panegyric:

At the first mention and whiff, as it were, of a campaign, the dregs of humanity are roused to come out of their hiding-places, and collect like bilge-water from all over the world: men burdened by disgrace or debt or fearful of the threats of the law on account of their misdeeds, or men who are conscious of their crimes and so think they cannot be safe in time of peace, or who have dissolutely squandered their capital and are now led astray by sordid poverty to the worse crime of robbing others. Finally, there are men whose evil disposition and evil mind so act on them (as if they were born for crime) that they would have dared to do such things at the risk of their lives even without the prospect of going unpunished or the offer of pay. Wars have to be carried on with these sweepings of humanity; such dregs have to be received into cities and homes, although a whole generation will hardly be enough to clean the stink from your citizens’ morals. If indeed we learn nothing so easily as depravity, there is also nothing so difficult to forget.
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Mark Wing, 5 May 2016 @ 6:04pm

Thank you, train detectives, for keeping the streets safe from small amounts of marijuana.
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pegr, 5 May 2016 @ 6:24pm

Assume much?
So what was illegal about the weapon?
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JoeCool (profile), 5 May 2016 @ 6:44pm

Re: Assume much?
Nevada requires a concealed weapon permit, which he almost assuredly didn't have. Ironically, he probably would have been better off legally with the gun in a holster at his side, but they might have started with shooting him if he did.
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Anonymous Coward, 5 May 2016 @ 9:00pm

Can we stop calling them police officers and call them what we call everyone else that does illegal things.

Criminal. Or even better just write it as Criminal cops
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Mr Big Content, 6 May 2016 @ 12:07am

Teh Dog Was Being Tactful
You have to understand the special Raport between a god and Its Handler. Just because it dosent LOOK to a ignoarnt unskilled Layman like the dog is signaling ILLEGIAL, ILLEGIAL, doesnt mean its not. Its using a SPECIAL EXPERT CODE with its hnadler that NO ONE ELSE can Interpret.
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Anonymous Coward, 6 May 2016 @ 1:15am

Re: Drug Dogs respond to handler cues
he did mention that, read "harder."
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vancedecker (profile), 6 May 2016 @ 2:13am

Don't be stupid. The NSA obviously had obtained proof...
...that this drug dealer had lots of cash on hand. They contacted the local officials.

Obviously the Amtrak the officials are not very competent, hence the job with Amtrak, at duties with regards to parallel construction. Parallel construction is a legitimate law enforcement tool used for over 3 decades.

So, the drug dog here, is completely incidental.
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Bergman (profile), 6 May 2016 @ 4:32am

Re: Re: Assume much?
Yes it does, but he wasn't concealing it if it was in his luggage. Concealed refers to how you carry it on your person, not merely failing to superglue it to your forehead while it is in your possession.
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Bergman (profile), 6 May 2016 @ 4:34am

Re:
Criminal works. Many police departments also meet the federal definition of a domestic terrorist organization, going by the letter of the law.

Conspiracy/accomplice/aiding & abetting laws are a stone cold bitch if anyone around you violates the law in any way and then you offer them any kind of aid (armed backup, for example).
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Anonymous Coward, 6 May 2016 @ 4:50am

because they're responding to cues (conscious or unconscious)
I don't think they would be 'unconscious' clues. Subconscious, maybe.
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DannyB (profile), 6 May 2016 @ 5:48am

A waste of taxpayer resources
Drug Dogs are expensive. Require expensive training. Maintenance costs. Handlers require training, donuts, etc.

Wouldn't it be a more efficient use of resources to use a different kind of pet for sniffing drugs?

Such as a pet rock?

A drug sniffing pet rock.

Or maybe some kind of dowsing rod or some such? Maybe put it in a box with blinkenlights to give it a high tech spin?

It would save the taxpayers money while serving the interest of police in perverting justice.
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Deputy Dickwad, 6 May 2016 @ 7:14am

Re: Assume much?
Stupid peon's are not allowed to have Schedule I drugs and a weapon, just me.

When you've got a regular weapon, a gun phone, a tazer grenade, a sharpened toothbrush, whatever I plant a little if the sticky icky on you, and Blammo! Illegal weapon even if the weapon was not illegal before!

Too much good stuff! I'm lovin it!
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Anonymous Coward, 6 May 2016 @ 7:42am

Re: A waste of taxpayer resources
I prefer the rock that keeps tigers away, much more safe
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Anonymous Coward, 6 May 2016 @ 8:09am

Kurup - your name suits you
You worthless POS
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Anonymous Coward, 6 May 2016 @ 8:15am

When oh when will the judiciary finally realize that merely completing the oath of office conveys upon a police officer uncanny - and infallible - abilities to sniff out hinkiness in "innocent" citizens?

Why do they continue to shackle these superhuman yet humble guardians to a dead piece of paper purporting to guarantee "rights"?

Why?

(note: none of the above should be construed to be non-snarky, with the exception of the words "the", "a", and possibly, "yet". There's something hinky about that word though, something foreign and scary.)
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Whatever (profile), 6 May 2016 @ 8:29am

Nice story, except of course that police can (and do) lie legally to try to extract information or incriminating statements.

http://www.njmoorelaw.com/#!10-ways-police-can-lie-to-you/c69e

So sadly, saying "the drug dog was interested" isn't that big of a deal. The guy should have just shut his mouth and said nothing. Instead he confessed. Was he tricked? Oh yeah. He failed!
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Anonymous Coward, 6 May 2016 @ 8:40am

Re:
So sadly, saying "the drug dog was interested" isn't that big of a deal.

Yeah, it wasn't a big deal at all.
The judge certainly agreed with you, right?
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Norm, 6 May 2016 @ 9:13am

"Canine Officer Hill"
Was I the only one who misinterpreted these two descriptions:

...drug interdiction team composed of Kurup, Detective Moore, and canine Officer Hill...

...No attempt was made by Kurup to have Detective Moore or Officer Hill witness or confirm the alleged consent by Estes...

to imagine a German Shepherd on the stand:

"Did you witness the consent by Estes?"
"Woof, Woof"
"Good boy!"
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JoeCool (profile), 6 May 2016 @ 9:19am

Re: Re: Re: Assume much?
In your carry-on luggage on a trip would be considered in your possession by LEO. This wasn't a bag in the closet at home, or a locked, checked bag in the baggage compartment. It's equivalent to being in a purse for a woman, which would be considered concealed carrying.
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One who knows the bs, 6 May 2016 @ 9:24am

Felony or not
This incident will be loaded onto Estes' rap sheet and all subsequent interaction with LE with access to it will remain as if he was guilty. He will probably never see his weapon again, just avoided the felony, but its going to be perceived as if he is one. What hypocracy comes from that side of the line drawn.
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Uriel-238 (profile), 6 May 2016 @ 11:51am

Maybe someday we can hope that
Detection dogs used against non-general public (such as a single man's luggage) will require a warrant.

And dogs that false positive more than 50% of the time are retired to civilian life.
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Jnite (profile), 6 May 2016 @ 1:38pm

Re:
Officer: Alright Champ, smell the room for drugs.

Dog sniffs a couple of seconds then falls over and doesn't get up.

Officer: He's unconscious. There must be drugs here.
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John Fenderson (profile), 6 May 2016 @ 5:50pm

Re: Maybe someday we can hope that
Even better, detection dogs should be legally recognized as being the same sort of thing as polygraph tests: so unreliable as to be completely worthless.
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John Fenderson (profile), 7 May 2016 @ 9:48am

Re:
Yes, the cops can and do frequently lie as part of their standard porocedures. Which means that you can't ever trust what a cop says, period.
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JoeCool (profile), 7 May 2016 @ 9:48am

Re:
Seeing criminal cops got me to thinking of a new TV show - CRIminal coPS... CRiPs! Just like the old CHiPs series. I know - too much METV. :)
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That One Guy (profile), 7 May 2016 @ 10:52am

Re: Re: Maybe someday we can hope that
Ah, but while the polygraph is worthless at discerning truth it's great for intimidation, so for those using them they do serve a purpose, and quite effectively at that, it's just that contrary to the claims of those using themm the purpose isn't 'spotting lies'.

Drug dogs are the same way, while they may be little better than a coin toss at finding drugs at times they're great for allowing otherwise illegal searches, so the accuracy or lack thereof isn't actually a factor for those using them.
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John Fenderson (profile), 8 May 2016 @ 6:37pm

Re: Re: Re: Maybe someday we can hope that
You are correct, but I was talking about their legal status. Lie detector results are not considered evidence, and neither should drug dog results be.

Their use for intimidation is problematic as well, but at the very least they should not be able to be used in court or as a pretext for a search.
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Camela Fisk, 17 Aug 2016 @ 3:10am

My goodness,a man is caught doing his job!!! But of course there's plenty of people upset and pointing the finger at someone they know nothing about, and a situation they didn't experience themselves.Seems to me like too many people just love to hate Police Officers any chance they get.That's too harsh of a judgement to put anyone in a category until you know the actual details...Not just the most popular opinion.
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Pirate Botanicals (profile), 8 Feb 2017 @ 4:59pm

Drug dogs not really a problem anymore
I don't know why people still worry about drug dogs. Sure, they were a real problem 15 or 20 years ago, but nowadays, as long as you know what to do, you can stop drug dogs from smelling your marijuana or whatever. Just read http://drugsandbadideas.com/index.php/bad-ideas/46-how-to-avoid-drug-dogs-smelling-marijuana-other-d rugs
It's full of ways you can beat the drug dog.
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Anonymous Coward, 2 Mar 2020 @ 8:59am

I was in jail for 13 months for this case . After it was over I filed a civil suit against the officer (Madhu Kurup) and won. However when I was searching for a lawyer to file a civil suit against the jail in hopes to get back all the money I spent while I was in jail as well as false imprisonment and a few other things they strung me along and turned me down and now They're telling me that I've exceeded the statue of limitations as if it was my fault no one wanted to take my case. I believe that should be another article, "having a right to council in a criminal case but not a civil case." Thank you for this article, I ran across it on the fluke. If you could help me with any information I would greatly appreciate it!
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Anonymous Coward, 2 Mar 2020 @ 9:18am

Re: That rule of law sure is inconvenient, huh?
I never had a gun, never had any "personal use marijuana" it was planted so know the facts!! Ironically the same officers pulled an similar stunt on to Caucasian guys in a case that occurred not to long before mine United States v. 40,000
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Anonymous Coward, 12 May 2020 @ 6:58pm

Re:
Suing the jail makes zero sense. How about suing Amtrak, who employed Mr. Kurup?
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