Federal Court Says Every Drug Dog In Utah Is Unreliable
from the so-much-for-'probable-cause-on-four-legs' dept
For as long as people have been driving, cops have been imagining reasons to pull them over and coerce them into "voluntary" searches. The Supreme Court's Rodriguez decision (sort of) put an end to extended stops -- the ones that start with a perceived violation that's dragged out until a drug dog arrives. Unfortunately, that decision only removed part of the equation. The Supreme Court's Heien decision made it possible for cops to rely entirely on pretext to engage in fishing expeditions by saying cops only had to think they witnessed a traffic violation, rather than actually be accurate about the laws they're tasked with enforcing.
Cops are still trying to bring drug dogs to routine traffic stops. The Rodriguez decision is generally taken to mean cops just need to be quicker about rustling up a K-9 unit. Cops love drug dogs because they allow cops to perform the warrantless searches they want to perform. The drug dog's handler can call literally any movement by the dog an "alert," turning normal dog behavior into "probable cause" for a search. It doesn't help that the dogs are rewarded for every alert and given no positive reinforcement for failing to find anything interesting.
Courts have historically been willing to cut drug dogs as much slack as they cut their law enforcement officer handlers. Subjective interpretations of anything an animal does to please its master is considered close enough to Fourth Amendment compliance to justify warrantless searches. Every so often, a court will question the reliability of the dog or the intent of its handler, but those are anomalies.
This case, via FourthAmendment.com, is an amazing anomaly. Not only did the court choose to hear from experts on drug dog training and handling, it actually went so far as to call into question the reliability of every drug dog in the state.
The suppression order [PDF] contains a subheading rarely seen in federal court decisions:
A. The court has serious concerns about Tank's training and reliability.
Tank is Officer Moore's drug dog. Officer Moore handled the training in accordance with Utah's Peace Officer Standards and Training (POST) guidelines. Unfortunately, those guidelines do nothing to prevent officers from turning drug dogs into subservient partners with a desire to please and a willingness to respond to handler cues.
Officer Moore claimed he worked with Tank regularly to improve both obedience and "drug locating." The court says this simply isn't true -- not from what's on the record.
Notwithstanding Officer Moore’s testimony, evidence at the Hearing raised serious questions about the sufficiency and veracity of Tank’s training. First, the police training records supported that between July 2018, when Tank was certified, and November 2018, Officer Moore only conducted four narcotics trainings with him. Moreover, from October 20, 2018 through March 1, 2019, a period that enveloped the search of Mr. Jordan’s vehicle, Officer Moore only performed one narcotic training exercises that involved searching an area that did not contain narcotics, compared to 27 “normal” exercises where there were narcotics present to be found.
The defense brought in an expert witness, Dr. Mary Cablik, who has two decades of drug dog training experience working with POST units in Nevada and California. Cablik said the absence of "blind" training is a real problem. If the dog is only tested in areas where the handler knows drugs will be found, the dog carries this knowledge on to the real world and will continue to search for nonexistent drugs until it gives its handler what they want: an "alert."
Here's how a drug dog should be trained, according to the defense expert:
Dr. Cablk opined that in order to properly train a K9, a program must take steps to prevent handler bias and cuing, namely through blind training. Singleblind training occurs when the handler does not know how many, if any, quantities of narcotics are hidden in a scenario, but someone else present does. The third person may be present to judge whether the dog passed the test. Such a procedure is important because when a handler knows how many hides are present in a scenario, he will continue to search with his dog until the dog finds them all, which does not create a “realistic scenario that mimics what happens on the street.” Single-blind testing is important to train a dog to work independently and in turn gives a handler confidence in his dog. Nevertheless, single-blind training is insufficient to prevent bias and cuing. Even if the handler does not know how many hides are present in a scenario, research shows that anyone who is present for the training and knows the quantity and/or location of the hidden narcotics, even the judge, can inadvertently cue the K9. Thus, in Dr. Cablk’s opinion, the “only means that you can use to demonstrate the reliability of a K9” is to have no one who is present during the training know how many, if any, hides are present. This is considered double-blind training.
Utah's training can barely be called "training."
Utah POST does not use double-blind training or testing, and its certification testing is not even done single-blind, as the handler knows exactly how many hides will be present.
Tank's performance at this traffic stop left a lot to be desired.
Tank did not perform a trained final response while conducting a sniff of Mr. Jordan’s vehicle. He never demonstrated any clearly objective behavior communicating that he had detected a target odor. Rather, Tank demonstrated the innate natural behaviors of a dog going through the paces of sniffing the vehicle. Officer Moore relied on Tank’s natural behaviors, which he perceived as “alerts,” to conclude that Tank had detected the odor of narcotics emitting from Mr. Jordan’s vehicle. [...] There is nothing on the video of the sniff from which a third person can objectively conclude that Tank had performed to respond as he had been trained to do when he detected a target odor.
Fortunately, there was some video. But none of it came from Officer Moore. The court points out Moore was required to wear a body cam but was not wearing one during this traffic stop. The recording was captured by another officer on the scene and much of that recording of the stop was obstructed by the officer's vehicle.
Allowing a dog to give a cop permission to perform a warrantless search raises serious Fourth Amendment questions. The court here says the training processes and dog behavior observed here aren't nearly enough to elevate Tank above his unofficial position as Officer Moore's personal Clever Hans.
Then the court goes further, suggesting the state's lax standards for drug dog training make every drug dog in the state unreliable.
[T]he court finds, based on the testimony of Dr. Cablk and the records before it, that Utah POST Training inadequately addresses, and therefore fails to remove the risk of, inadvertent handler bias or cuing. Specifically, Utah POST’s failure to implement double-blind training raises questions as to the independence of its K9s and casts doubt as to whether the K9s are alerting or indicating because they actually detect the odor of narcotics or because they have learned that displaying such action is the best way to please their masters. This doubt is not allayed by Utah POST’s certification process, as the final test that a K9 must pass in order to be certified is not even performed single-blind. As such, the K9’s handler in the exam, who is the same officer who has worked with the K9 for months and has a clear interest in having his K9 be certified, knows exactly how many hides will be present in the exam and can therefore continue to search until the K9 finds them all. Such an examination does not reflect a real-world setting and does not, therefore, indicate that a passing K9 can reliably detect, and communicate his detection of, narcotics in the field.
Utah's training does not produce reliable drug dogs. Officer Moore's drug dog is possibly more unreliable than most, but this order makes it clear everyone who's been subjected to a drug dog sniff should challenge it. The state POST training has produced little more than handy Fourth Amendment circumvention tools for officers to use at will. This court is having none of this and refuses to condone the deployment of dogs that are basically trained to please their handlers, rather than actually detect narcotics.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: drug dogs, probable cause, reliable, traffic stops, utah
Reader Comments
Subscribe: RSS
View by: Time | Thread
All depends on the goal
If the goal is to find drugs then no, drug dogs are abysmal.
If the goal is to provide probable cause to perform a search however then they're great.
With 'training' of that level any arrests or searches that are justified by a drug dog should be dismissed with prejudice, with that only changing after a complete overhaul of the drug dog system so that it focuses on accuracy rather than merely providing an easy justification for a search. Only when it starts costing them will the police care about accuracy.
[ link to this | view in chronology ]
If you used a Magic Eight Ball to 'detect' drug hides, everyone would know that it was sketchy. And the Ball is more reliable than a poorly trained dog.
[ link to this | view in chronology ]
Re: Magic 8 Ball
So you just keep on flipping the Magic 8 ball until it "detects" all the hides. I don't mean to hound you until my voice is husky, but you just need dogged determination, otherwise you're not much of a drug retriever, barking up the wrong tree when unleashed. With the right pointers we can shepherd you in the right direction, although you might not havanesey time of it.
Is that the door bell? I mutts be going.
[ link to this | view in chronology ]
Re: Re: Magic 8 Ball
"So you just keep on flipping the Magic 8 ball until it "detects" all the hides."
If by "detect", you mean that something comes up after you've shaken it at all, maybe. Some guy comes out smelling like bacon the officer notices the dog looking, and bam, probable cause.
A properly trained police dog would ignore that, but given that many places in the US can't train their actual officers properly, why would the K9 units be any better?
[ link to this | view in chronology ]
Re:
Depends on what you think the training is. If it's to accurately detect drugs, you're right. If it's to provide an excuse to search anyone they want to, they're trained perfectly.
[ link to this | view in chronology ]
Re: Re:
Where I'm from canine handler is an elite position in the police with a lot of training and bonding required for both dog and handler.
Given the recent spate of revelations about US LEO's I'd guess the "training" often consists of finding a dog willing to go greet new people eagerly so the officer has the required excuse.
[ link to this | view in chronology ]
Real drug dogs
Real detection dogs exist, and continue to serve, thankfully, scanning luggage by the thousands for drugs, bombs and other things we don't want on airplanes. And the sector that trains them is outraged by the preponderance of trick pony dogs in US law enforcement that serve to justify probable cause, but don't actually detect anything.
I still think dogs should be retired (to domestic life) once they false positive more than 50% of the time, say tracking their last two-hundred sniffs.
[ link to this | view in chronology ]
Re: Real drug dogs
I still think dogs should be retired (to domestic life) once they false positive more than 50% of the time, say tracking their last two-hundred sniffs.
I'm all for retiring drug dogs once their accuracy starts dropping, but given we're talking about an animal that can be the difference between a search of someone's property being legal or illegal 50% is way too low. A dog's use in searches should be discontinued well before it reaches coin-toss territory.
[ link to this | view in chronology ]
50%+ positives are false
I was being generous, but yeah their accuracy should be higher than that.
But certainly a dog sniff of a single person's property (such as a car) should require a warrant in the first place. So long dogs are usable as a tool to establish probable cause our law enforcement departments will find a way to get their trick-pony dogs re-certified.
[ link to this | view in chronology ]
Re: Real drug dogs
Much of the problem is that nothing has every been done to really prove this. I'm sure there are areas where they do a better job trying to train dogs, but ultimately you're trusting a creature you have no power to actually communicate with.
There's no real evidence that dogs can be trained to reliably only signal when they smell what you want them to. That lack of reliable communication should be enough reason to say we should never be using dogs as tools for this high risk task.
[ link to this | view in chronology ]
Transportation detection dogs
Our K9 programs that use detection dogs to sniff out drugs and explosives do an acceptable job, but that's because it would be to inconvenient to open every piece of luggage, so the program is encouraged to keep false positives down.
The problem is when detection dogs are used specifically to implement probable cause. It's an important part of law enforcement's asset forfeiture racket in which a subject flagged for carrying large amounts of seize-worthy assets (money, usually, though bullion can work). The subject is pulled over and the dog compels a search on probable cause. The money (not drugs or bombs) is discovered and forfeited. In this case, the dog's controller is rewarded for the dog's false-positive signal.
More interesting is when a subject is flagged wrongly for having money, which can drive the responding law enforcement officers to go to extreme lengths to get the assets that aren't there, leading to extensive, abusive searches. Fun with body cavities and pressuring medical personnel into performing questionable procedures. Stuff like that.
[ link to this | view in chronology ]
I say if a Drug Dog alerts to DRUGS and the police find nothing. Then the dog it unreliable and can no longer be used!!! Because the so-called SIGNAL of the dog causes you to lose your right's giving these tyrant pigs the right to go through your car without any warrant. Now they can look for anything in your car besides just drugs and get you on that, even though there are no drugs.
You have a pile of cash you like to bring with you on trips. They find the money, cause you of having DRUG MONEY and they steal it!!!! You can try and fight it, but it'll end up costing you more money than what they took and they count on this. Few people after long battles get their money going through all the hoops.
SAo if they want to use DRUG DOGS, OK, but 1 false positive and the dog is done with. Out of a job to ever work for the police again. Better make sure you're right!!!!
[ link to this | view in chronology ]
Re:
I wouldn't get rid of them after just one false positive. I mean, maybe some guy had some drugs in the car but took them out, and the smell lingered.
[ link to this | view in chronology ]
Re: Re:
So then, there would be NO drugs in the car and the dog “alerts” on something that is not there.
[ link to this | view in chronology ]
Re:
If we could then get rid of the old standby: “I smell me some marijuana”
[ link to this | view in chronology ]
Yep seems about right.
[ link to this | view in chronology ]
ALL dog deployments should be accounted for
Drug dogs ( along with Field sobriety testing ) would be laughed out of any accredited peer reviewed paper as junk science.
The only reason that it even got to this stage is because it resulted in a drug find and got push back
Let alone any certification established on double blind training,there needs to be a judicial review ( backed by credible science) on ALL drug dog deployments - not just on those where something was found. Negative results are still results and need to be taken into account by the courts on any finding of probable cause
[ link to this | view in chronology ]
Re: ALL dog deployments should be accounted for
"Drug dogs ( along with Field sobriety testing ) would be laughed out of any accredited peer reviewed paper as junk science."
Not really, no. In responsible jurisdictions with expertly trained canines and handlers a drug dog is VERY good at spotting the usual types of drugs which means they are extremely beneficial for use at airports, for instance.
"Let alone any certification established on double blind training,there needs to be a judicial review ( backed by credible science) on ALL drug dog deployments - not just on those where something was found."
Yes? This is the case for most of europe whenever drug-sniffing dogs are used. In fact the training of the dogs itself produces both negatives and positives which is how the dog is then evaluated.
However...that assumes you have a properly trained drug-sniffer.
Now, given the hiring practices of US law enforcement as we've read about so often around here, I'd think it was a miracle if a US canine unit outside of the DEA had training stricter than "We got the mutt for a fiver from some funky-smelling guy in a street corner who swore it could always find (and eat) the pot no matter where he hid it..."
"Drug sniffing dogs" do exist and are utilized well in many places. The US may or may not be one of them.
[ link to this | view in chronology ]
Any fool knows that you train the dog to alert if it finds drugs OR on indication from the handler. Win-win.
[ link to this | view in chronology ]
Interesting
It's very fascinating as well. From what I read of the order, seems that if there had been an actual alert, the court might have ruled in favor of the officers.
Also, I feel like that fact he did not have his BWC on, also played a role. s they said in judicialese , at least how i am viewing, that he was not reliable. Also, that due to records , that what he said was not credible. It's a very fun read.
I also jsut shake my head at all the minor inconsitinces on teh office and not followign policy. I thought Cops loved broken windows policing. where little stuff is pushed down on so bigger stuff does not happen. I guess its true as we saw alot of small issues here that made the bigger stuff more likely in teh courts eyes.
Part of me kinda wants to run a "drug dog" through a cop police station and see. Or have put tank in teh courtroom, and then wave part of the officer's dress adn see if the so called alert he did showed up and say, "Then we can search the officer."
[ link to this | view in chronology ]
Re: Interesting
I would agree that the failure to wear his BWC had a lot to do with this decision, knee-jerk or not by the courts. Its sad to see a liberal judge decimate an entire program over one idiot. Secondly, failing to comply with K9 maintenance training and record keeping, dept policy and procedures all proved to be his demise. however, noting that I do not disagree with much of the later comments of others on here, I do have serious reservations in the reliance of modern day technology. Most DA's offices in California, where I was a police officer and a police canine trainer and helper. Most DA's Offices now will not even prosecute someone unless there is video of the crime or BWC footage or multiple witnesses or a combo. There was a time when, not too long ago when an officer would observe a crime in progress, make an arrest, submit a report and the DA would file charges. No one believes anyone without "proof" (actual video proof)
I remember when BWC were being pushed by the NAACP. All officers must have them. Police brutality, blacks arent violent, blacks arent criminals, blacks arent doing anything that the cops are saying. "Its the COPS!" Theyre making stuff up! NAACP lawyers filing complaints on behalf of blacks complaining of Police brutality. Depts started using BWC's. What happened? The NAACP were getting their asses handed to them in court, cases thrown out labeled as false complaints, video footage showing that everything the officer wrote in his report was true. Low and behold what did the NAACP do? They demanded that the use of BWC stop. Cops are only afraid of internal investigations because management is terrible and usually vindictive. Management uses such things as "poor judgement" to write up the officer when the officer did everything right and violated no policy or law. I saw it hundreds of times and experienced it in my own dept.
My point, long winded and all, you cannot blame the bunch because of one.
Lastly, double blind testing / training? to have no one present during training or testing who has any idea of how many finds there are. thats about the dumbest thing I have ever heard in my life. perhaps it should be explained better. It sounds as logical as saying we are gonna hire teachers to teach your kids how to read, but, the teachers do not know how to read themselves. You think your child is gonna learn how to read? How does ANYONE know whether the dog is alerting if NO ONE is there to confirm it? Does a tree make a noise when it falls in the forest if no one is there to hear it?
[ link to this | view in chronology ]
My rural county sheriff's department loves touting how many busts they get from routine traffic stops and their drug dog. Most people assent to a search, and for the ones who don't the officer just declares "probable cause" and searches anyway, whether or not a dog is present. AFAIK no one has ever challenged the process.
[ link to this | view in chronology ]
Re: Another theory
Those big busts of non-residents in rural counties along major highways are often "parallel construction". A federal agency finds information about the trafficking but doesn't want to expose their source so they will flag a vehicle to the local sheriff or state troopers.
They then follow the vehicle until it changes lanes without signaling, pulls it over, calls in a drug dog to get cause, and BOOM look at that, Sheriff Dickweed just stumbled on 20lbs of coke and heroin.
[ link to this | view in chronology ]
Re: Re: Another theory
Planting drugs on an innocent person is a problem.
Catching an actual criminal with actual drugs, such as "20 lbs of coke and heroin"? Not a problem.
[ link to this | view in chronology ]
Re:
Morton's fork is just that gift that keeps on giving to dishonest law enforcement.
[ link to this | view in chronology ]
Sounds familiar
Reminds of the drug labs that have been busted lately for working closely with police and DAs to "confirm" the presence of drugs for just about anything that comes across their bench including one sample which was powdered sugar from a doughnut.
[ link to this | view in chronology ]
USA tries to scuttle decision-- judge says no:
From the ORDER:
"Before the court is a Motion to Suppress filed by Defendant Desmond Travis Jordan, which seeks to suppress all evidence obtained during a traffic stop on February 28, 2019, on the basis that, among other things, the police searched Mr. Jordan’s car without a warrant or probable cause. (ECF No. 22). The court held an evidentiary hearing on Mr. Jordan’s motion on March 3 and 4, 2020 (the “Hearing”), at which it heard testimony from Detective David Allen, the investigating officer, Officer Clinton “CJ” Moore, the K9 handler, and Dr. Mary Cablk, an expert retained by Mr. Jordan. Following the Hearing, the court requested the parties to submit proposed findings of fact and briefing, and set a date for the court to hear oral argument."
I wonder how the evidentiary hearing went for the United States. Here's how the United States thinks it went:
"Rather than submitting briefing and proposed findings, on March 31, 2020, the United States moved for leave to dismiss the Indictment against Mr. Jordan with prejudice due to “inter alia, a lack of prosecutable evidence and for good cause.” . . . Mr. Jordan does not oppose the dismissal."
One might think that would be the end of the matter and the precious drug dogs of Utah would be spared the scrutiny of an Article III Court; the Judge had other ideas:
"Under the Rule 48(a) of the Federal Rules of Criminal Procedure, the United States is required to seek leave of court to dismiss an indictment. Where the United States has proceeded on the merits of the charge and, as in this case, proceeded to oppose a motion to suppress evidence for lack of probable cause, the court has a responsibility to rule on the merits of the motion. Moreover, the development of the law requires that conduct of the officers be assessed to provide guidance in the arena of K9 sniffs."
Looks like the United States was ready to bear the cross before the Court and the Court felt the need to hammer in each nail. Doesn't get any better than that.
[ link to this | view in chronology ]
cops had to know
"The whole good cop/bad cop question can be disposed of much more decisively. We need not enumerate what proportion of cops appears to be good or listen to someone's anecdote about his Uncle Charlie, an allegedly good cop. We need only consider the following: (1) a cop's job is to enforce the laws, all of them; (2) many of the laws are manifestly unjust, and some are even cruel and wicked; (3) therefore every cop has agreed to act as an enforcer for laws that are manifestly unjust or even cruel and wicked. There are no good cops." ~Robert Higgs
[ link to this | view in chronology ]
How does one question, or more apt, how does a dog respond to questioning in a court of law?
Attorney: Tank, how long have you been drug dog
Tank: Ruff
Attorney: Tank, what type of drug did you detect?
Tank:Ruff ruffruff ruf ruf rufruf
Attorney: The defense rest your Honor.
[ link to this | view in chronology ]