Does the Nose Know?

Sit. Stay. Speak. These are three examples of commands that a motivated dog

with adequate training could learn to perform at will. Dogs learn at an early age that

certain cues from their handlers are meant to trigger their performance. These cues can

be simple motions or verbal commands. These cues can be intentional or unintentional.

Whatever the cue, dogs become trained to react. In some cases, if not most, these

reactions become reflex.

Positive reactions mean positive reinforcement. In the case of dog training, the

positive reinforcement is often a treat and/or praise. Soon enough, dogs begin to pick

up that performing a trick, whether they are given a cue or not, will earn them treats and

praise. Sometimes, dogs are simply rewarded solely for good behavior. Eventually, the

dog's motivation to act is based on its reliance of treats and praise. This theory presents

a problem in the case of Drug Detection K-9's. These Drug Detection K-9's are not

motivated by the idea of fighting drug crimes and protecting the community as their

handlers are. These Drug Detection K-9's are motivated by approval and rewards.

The job of a Drug Detection K-9 is to alert to the presence of the odor of

narcotics. At the proper age, these dogs attend schools where they are introduced to

the smells of different narcotics and trained to react to these odors. While these dogs

are extensively trained and are able to detect some odors fairly accurately, it does not

always happen consistently. Just as humans, these K-9's make mistakes. However,

unlike humans, K-9's cannot give a reasoning to their reactions. Some argue that these

dogs are merely reacting due to a cue given, whether intentional or unintentional, from

their handler. Some suggest that they are merely reacting for the rewards. In the end,

the reasoning behind the K-9's response is left to be interpreted by its handler. This act

of translating between K-9 and handler begs the question: is it the handler taking cues

from the K-9 or is the K-9 taking cues from the handler? Overall, the primary concern

with Drug Detection K-9's and their motivation to react are the unexplained responses

of a dog enough to establish probable cause to conduct a warrantless search. Jeffrey S.

Weiner, Police K-9's and the Constitution: What Every Lawyer and Judge Should Know.

The Champion. April 2012. Pg. 22.

One of the underlying bases for the use of canines in searches is the Carroll

Doctrine. The Carroll Doctrine refers to, "a principle that permits a police officer to

search an entire motor vehicle and any containers inside it if there is probable cause to

believe the vehicle contains contraband or the fruits, instrumentalities or evidence of

criminal activity." Carroll Doctrine Law and Legal Definition, http://

definitions.uslegal.com/c/carroll-doctrine/. Probable cause is defined as, "a reasonable

ground to suspect that a person has committed or is committing a crime or that a place

contains specific items connected with a crime." Black's Law Dictionary (9th ed. 2009).

The unresolved question is: "Are K-9 alerts and handler translated responses enough to

establish a reasonable ground to expect that an individual or vehicle contains narcotics?"

Based on precedent set forth by the United States Supreme Court and the

subsequent Alabama Appellate Courts adoption of the principles set forth in that

precedent, trained Drug Detection K-9 alerts are enough to establish probable cause. In

State of Alabama v. David R. Ellis the court cited that, "An alert by a trained drug-sniffing

dog provides probable cause to search without a warrant." State v. Ellis, 71So.3d 41,49

(Ala. Crim. App. 2010). The Alabama court stated, "The Eleventh Circuit has long

recognized that 'probable cause arises when a drug-trained canine alerts to drugs." Id.

Alabama Courts have even upheld the validity of a K-9 search in the presence of

mistake. In Manuel Jesus Ynosencio v. State, the Alabama Supreme Court held that

despite that the K-9 dog in this case made a mis-indentification prior to alerting to the

presence of narcotics in Mr. Ynosencio's car, this was not enough to to "destory the

general reliability of a trained dog's identification of narcotics" and thus probable cause

was present. Ynosencio v. State, 629 So.2d 795, 798 (Ala. Crim. App. 1983). Thus,

despite the fallibility of the Drug Detection K-9's, unless the traffic stop is deemed to be

unjust, the court will likely uphold that a positive alert from the drug dog is enough to

establish probable cause.

A recent study conducted by the Chicago Tribune analyzed three years of data from

police departments in the suburbs of Chicago and found that just 44% of dog alerts

resulted in the discovery of drugs or paraphernalia, and that the average false alert

resulted in a stop lasting almost a half hour. The numbers are even more staggering for

Hispanics drivers - the success rate was a mere 27%. Even accounting for alerts

triggered by drug residue, the numbers suggest that the dogs are either being poorly

trained or are responding to cues from their handlers like leading them too many times

or too slowly around a vehicle.

A study conducted by researchers at the University of California at Davis and published

in January states unequivocally that "handler beliefs affect scent detection dog

outcomes," and that detector dogs are cued by their handlers 85% of the time.

Lawrence Myers, an associate professor of animal behavior at Auburn University's

College of Veterinary Medicine has said that he's "disturbed by the number of doghandler

teams that are not well trained," while Steven D. Nicely an expert at K9

Consultants of America - who started training dogs in 1973 as a military policeman,

became a police officer in Texas, and has been a professional dog trainer since 1989 -

says that he's convinced that "the majority of detector dog trainers are not very

knowledgeable."

If there is in any silver lining in all this for pot possessors it's that the same glaring

incompetence that's pervasive in false detections can lead to canines being so poorly

trained that they're unable to detect non-trace amounts of illegal substances in the

majority of cases, according to Nicely. In a Japanese university study published in the

Journal of Veterinary Behavior in 2009, researchers state clearly that "a dog's response

to commands is influenced not only by the relationship with its owner, but also the

owner's dog-handling ability." The ability of law-enforcement trainers can seriously be

called into question then when Nicely says that in his review of "approximately 30 drug

detector dogs' field performance ... the average probability of non-trace amounts [of

drugs] being seized is 39%." He says properly training dogs could easily lead to nontrace

amounts being seized 80% of the time.

Edwin Yohnka, director of communications and public policy at the American Civil

Liberties Union of Illinois asserts that "dog sniffs should be banned absent individualized

reasonable suspicion that a car contains illegal drugs," in other words, evidence besides

a dog's bark.