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, https://
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.
