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Article: How A PSD Sniff Can Go Wrong in Court Because of Poor Preparation and Poor Presentation
In Utah, a recent District Court case granted a motion to suppress. U.S. v. Jordan (2020 U.S. Dist. LEXIS 71048) involved a drug trafficking investigation, a traffic stop for an infraction and a sniff by a Police Services Dog (PSD). This is a common set of facts; generally, if a properly trained PSD alerts or gives a final indication during a sniff of a lawfully stopped vehicle, law enforcement (LE) then has probable cause to search the vehicle for the contraband in which the PSD has been trained to detect. However, things went quickly downhill in the Jordan case in court. This article will explore what happened in Jordan and provide some suggestions based on the existing case law to make sure a situation like this doesn’t happen to you.
1. General Rules in Proving PSD Reliable in Court
A PSD alert or final indication provides probable cause when the PSD is properly trained and proven reliable by records kept by the handler, testimony of the handler and (if necessary) testimony by an expert in PSDs. The courts have held repeatedly that it is the burden of the prosecution to prove that a PSD is reliable by proving facts that support a foundation of reliability. The court will use a “totality of the circumstances” test when examining the “training records and score sheets, certification records, and training standards and manuals pertaining to the dog” to determine whether a PSD is reliable. U.S. v. Cedano-Arrellano (9th Cir. 2003) 332 F.3d 568. The test is whether all the facts surrounding a PSD’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. Florida v. Harris (2013) 568 U.S. 237.
2. The Facts
LE was conducting surveillance on Jordan at Jordan’s home, a suspected drug dealer. The surveilling officer called handler to alert him to be ready to come to a traffic stop scene to have PSD perform sniff. A vehicle registered to Jordan (driver unknown at that point) left the house and LE followed it. Another call was placed to handler. A traffic stop was then performed for speeding.
Jordan was indeed the driver. LE obtained ID and returned to cruiser. At that time, LE called handler, gave the location of the stop and requested response by handler and PSD. It should be noted that the court emphasized in this opinion that at this point, the only reason for the stop was the traffic violation of speeding. While waiting for PSD to respond, LE ran Jordan’s ID and found out Jordan had a suspended license. LE informed Jordan of the suspension and asked if he knew a licensed driver who could come get the car. Jordan, at LE’s request, stepped out of his vehicle and called a licensed driver. LE returned to cruiser to wait for PSD. When the PSD team arrived, LE told the handler LE was waiting for a licensed driver and handler could take his time. According to the court, it was undisputed that Jordan had indicated that a licensed driver was available and would pick up the car and LE had no intention of impounding car. PSD then performed sniff of Jordan’s car.
3. Testimony Regarding Reliability Foundation of PSD
a. Tank’s history
The court then addressed the training and reliability of PSD Tank. Tank was from Slovakia and was certified by Utah POST in July of 2018 to detect odors of marijuana, methamphetamine, heroin and cocaine. The stop was in February of 2019. The court also noted that Tank had been diagnosed with mild hip joint disease and a suspicion of hip dysplasia. The court noted this to be important because pain or other health conditions may impact a PSD’s ability to successful train and deploy (pain can be distracting).
b. Utah POST Training and Certification Requirements
Utah POST recognizes two tiers of behaviors that PSDs may exhibit in response to the odor of narcotics. One is a natural response and the other is a trained response. In Utah, a PSD must consistently demonstrate the trained response when the target odor is present. A PSD will not be certified if “it only demonstrates the innate natural response, which may also be demonstrated in response to any item of interest to the dog, such as food or the scent of another animal.” Utah characterizes the innate natural behaviors as an alert. The court then concludes, “Practically, the list of behaviors includes any change in the dog’s actions that may indicate interest or excitement by the dog. The list is not specific or distinctive to any particular item of interest to the dog.” “These alert behaviors are not unique to detecting the odor of narcotics, but are consistent with the dog smelling anything of interest.” This is when things started to go badly for LE in this case.
The court then went on to state that the trained behavior is what the court will consider as signaling the handler that the dog detects the odor of narcotics, which the Utah POST manual defines as an indication or a trained final response. In Tank’s case, he was trained to stop movement or sit or lay down in front of the source of the odor and focus on the sources of that odor. The court stated, “Because Tank’s trained final response is a “specific instructed behavior,” the only time (Tank) exhibits it is when he has detected the odor of any of the found narcotics he was trained to find.” “This trained final response is imperative because it is a definitive signal that is deliberately taught to a dog so that the dog understands this is how I signal that I have target odor—it is an objective display that removes the “subjectivity that goes into” reading a dog’s behavior.”
4. Testing Tank’s Reliability Foundation in Court
a. Tank’s Training and Certification
Handler testified that Tank was certified which meant that Tank was able to consistently perform his trained final response during his training searches. Handler also testified that after certification, he and Tank continued to regularly train in obedience and drug locating. However, the court noted serious issues with the sufficiency and veracity of Tank’s training. First, the records provided to the court showed that between certification in July of 2018 and November of 2018, they only conducted four narcotics trainings. In addition, between October 2018 and March 2019, there was only one training exercise that involved searching an area with no narcotics to be found and 27 “normal” exercises where there were narcotics to be found. During that same period, there were no “negative controlled exercises” and only one “blind’ exercise.
b. The Defense Expert Introduces Doubt by Testimony of Handler Bias and/or Cuing
The defense called an expert, who had over 20 years experience in training, deploying and evaluating PSD teams as well as performed extensive research, lecturing, and testifying on the subject. She testified on training, detection and deployment of PSDs. The court found her opinions to be well founded, credible and persuasive. The court noted that the prosecution did not offer any expert testimony.
The court found the defense expert’s testimony compelling in the area of handler bias or “cuing,” which was unchallenged by the prosecution. “She explained that because dogs are “extremely sensitive to our body positioning and our facial expressions,” a handler, even “the best intentioned handler,” with the “best of dogs” can inadvertently impart bias on a dog, leading the dog to potentially “do its final indication whether or not it had target odor.” In short, cuing interferes with the independence of the dog and interferes with the definitiveness of the dog’s signal. Thus, when the handler knows or believes drugs may be present, the dog will sense the cuing from the handler and continue to search until the handler cues the animal to discontinue the search.””
The expert indicated the best way to prevent handler bias and cuing is through blind training. She opined that bind training is important because when a handler knows how many hides are present in a scenario, he will continue to search with his dog until his dog finds them all, which does not create a realistic scenario that mimics what happens on the street. However, she also opined that single blind is not enough to prevent cuing and bias. 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 dog. In her opinion, the only means that one can use to demonstrate the reliability of the dog is to have no one who is present during the training know how many, if any, hides are present (i.e., double blind training).
Utah POST does not use double blind training or testing and its certification testing is not even single blind, as the handler generally knows exactly how many hides will be present. The court held that “[t]he general absence of, and seemingly unawareness of the importance of, blind training as part of the Utah POST program was demonstrated by [handler’s] equating blind training with “controlled negative training.” Given these deficiencies, along with the additional aspects of the program [the expert] found problematic, [the expert] opined that Utah POST is not a valid assessment of a K9’s ability to detect the odor of the target substance.”
c. Actual Sniff and Alert/Final Indication
Tank’s sniff in this case lasted about 3 minutes. There was a video of the sniff. The court noted that handler walked Tank around the vehicle 3 times and made numerous additional passes of both sides of the vehicle and the vehicle’s trunk. Handler also repeatedly directed Tank’s attention to certain areas of the vehicle by pointing to the area and giving Tank a command or by tapping on that area of the vehicle. It was also apparent Tank was distracted as he had to be physically guided back to the vehicle when he was drawn to passing traffic or something of interest on the sidewalk. The court found no consistent and intense interest by Tank in the vehicle or an odor coming from it. Tank also did not perform a trained final indication. Tank did demonstrate the innate natural behaviors of a dog going through the paces of sniffing the vehicle. Even though the handler testified that Tank displayed behaviors that handler recognized as Tank detecting target odors, the defense expert opined that there was no objective basis upon which handler could interpret Tank’s alleged “alerts,” to communicate the presence of drugs. Additionally, there was nothing about the scenario or environment that would have prevented Tank from performing a trained final response. Her opinion was that Tank was repeatedly telling handler there was no target odor. The court found, also, that there was nothing on the video of the sniff from which a third person could objectively conclude that Tank had performed to respond as he had been trained to do when detecting a target odor.
Handler told LE at scene, “Yep,” and LE told Jordan that “the dog thinks there is something in the car” and that he was therefore going to “make sure” there was nothing in the vehicle. A small amount of marijuana was found along with a gun (Jordan was a felon).
5. The Court’s Analysis
The probable cause for the search of the vehicle in this case rested solely on a final indication from Tank that he positively smelled a target odor of narcotics. The court was concerned that “[a]llowing a K9’s alert to support a finding of probable cause to search a vehicle on the unverifiable, subjective interpretation of the handler would seriously erode long protected Constitutional rights.” Court found that Jordan raised serious issues of Tank’s reliability. Court says that it is “imperative that a K9 (PSD) be meticulously trained so that we can be assured that its signals are clear and direct and that we, as a community, can be confident in the reliability of the message that the (PSD) is communicating.” Even though Tank was certified, the manner in which he was trained and certified, together with the supporting records, did not inspire confidence that he met the standard required.
a. Utah POST Certification Process Found Lacking
First, the court found that the Utah POST Training inadequately addresses and therefore fails to remove the risk of inadvertent handler bias or cuing (court concerned with no double blind testing and lack of even single blind testing for final certification because handler knows how many hides are in the test and will continue to have PSD sniff until all are found). The court suggests that the training and certification should objectively demonstrate that the dog can find the hides, and all of the hides, only when neither the handler nor the judge know how many or where they were placed. Such a change in the training and certification would be easy and inexpensive.
In short, the court found that Utah POST Training inadequately addresses, and therefore fails to remove, the risk of inadvertent handler bias or cuing. Therefore, although the general rule is that a certification is adequate foundation of reliability, this general rule can be rebutted by evidence that the certifying agency has used accepted and proven procedure. Here, Utah POST did not rise to the standard.
b. Tank’s Medical History and Training History Raised Significant Concerns
Court found that Tank’s medical history and training history also raised credibility questions. Tank did have hip problems that could be painful (a distraction) and the infrequent and poorly documented ongoing training was insufficient.
The court assessed the continuing training of Tank and the handler’s record keeping as subpar. The records provided to the court showed that between certification in July of 2018 and November of 2018, they only conducted four narcotics trainings. In addition, between October 2018 and March 2019, there was only one training exercise that involved searching an area with no narcotics to be found and 27 “normal” exercises where there were narcotics to be found. During that same period, there were no “negative controlled exercises” and only one “blind’ exercise. Critical information about whether the training exercise involved a negative hide or whether handler knew that fact prior to the training was not recorded. Therefore, it was impossible for the court to determine whether Tank was in fact reliable or whether he was being intentionally or unintentionally cued to the presence of drugs.
In addition, handler testified that sometimes he filled in reports from “muscle memory” and on occasion simply disregarded filling in boxes or providing information. The court found that the handler was often not careful in accurately recording the training with Tank handler did complete.
As a result of these issues, the court declined to recognize Tank’s certification by Utah POST as proof that the results of his sniff of Jordan’s vehicle were reliable; therefore, probable cause was not found.
c. The Court Found a Bias In the Investigating LE
The court also found it compelling that it appeared LE was going to search Jordan’s car regardless of any probable cause because they had developed information that he was involved in drug sales. “The “totality of the circumstances” suggest that when handler arrived on scene, he was already of the belief drugs were in the car and that this belief influenced him, perhaps even inadvertently, to interpret Tank’s uncertain “alerts” as supporting a conclusion of probable cause.”
d. Was Tank Reliably Telling Handler Contraband Was in the Vehicle?
This is really the question that is asked by courts when examining whether the PSD is reliable to the extent an alert or final indication is a reliable indication that contraband (or the smell of) exists. In Jordan, the court found that handler’s interpretation of the alerts allegedly displayed by Tank not to be credible. In contrast, the court found the testimony of the defense expert that these actions exhibited by Tank were simply indicative of Tank smelling an odor of interest to be credible. Even though previous 10th Circuit cases (U.S. v. Engles (10th Cir. 2007) 481 F.3d 1243, 1245; U.S. v. Ludwig (10th Cir. 2011) 641 F.3d1243, 1250-51) had stated that a PSD need not display a final indication, the court distinguished this case by stating the previous cases had not analyzed whether the alert testified to in court was sufficiently distinct from a dog’s natural behavior to be objectively identifiable as a response to narcotics.
6. So Now What?
This case, at first blush, is, of course. concerning. However, now that it exists, we must be prepared to address the issues it raises.
First, initial training and certification must be at least single blind and this court appears to be saying that it will require double blind testing. “The training and certification should objectively demonstrate that the dog can find the hides, and all of the hides, only when neither the handler nor the judge knows how many or where they were placed. Such a change in the training and certification would be easy and inexpensive.” The safest avenue is that certification is accomplished by double blind testing.
Secondly, the on-going training here was deficient. The records provided to the court showed that between certification in July of 2018 and November of 2018, they only conducted four narcotics trainings. In addition, between October 2018 and March 2019, there was only one training exercise that involved searching an area with no narcotics to be found and 27 “normal” exercises where there were narcotics to be found. During that same period, there were no “negative controlled exercises” and only one “blind’ exercise.
Third, the handler’s record keeping and testimony about same was insufficient. The court stated that records must support both the reliability of the handler and the PSD and that in this case, there were lapses in both. The handler testified that sometimes he filled in reports from “muscle memory” and on occasion simply disregarded filling in boxes or providing information. This just isn’t going to play well in court. Diligent, current and accurate record keeping is critical. Make sure you are filling out your training and deployment reports at the time they happen (or shortly thereafter). Doing them at the end of a compliance period is not a reliable way to accurately reflect what happened; therefore, the records are not going to prove reliability. Also, it is concerning that because of the testimony by the handler, the court found the handler to not be credible. This could be a Brady issue for that handler, meaning that he would have to disclose in future that a court found him not credible which would create fodder for cross examination for the defense. Not a good situation for a handler or any LE to be in.
Fourth, the prosecuting agency was caught a bit flat footed. Apparently, they figured out prior to the motion to suppress that things were not going to go well and attempted to dismiss the case prior to the hearing. However, in Federal court, if a motion is opposed, the motion must be heard even if the prosecuting agency moves to dismiss. The prosecuting agency, in hindsight, should have filed the dismissal prior to responding to the motion to dismiss. Also, they did not present an expert who could have talked about alert behaviors being unique to a PSD and different than mere interest in a squirrel or food. As it was, the defense expert was all the court had to rely on and the defense was able to lump alert behaviors in with mere interest. You know when your PSD is in scent of contraband versus, for example, fast food. As a handler, be prepared to testify about the distinct difference in behaviors in your PSD. In addition, talk to your prosecutor about an expert (your sergeant or a trainer) who can testify about training, alerts and any other issue that may come up.
This case was a confluence of issues that added up to a bad result. The initial training and certification had problems; the fact that Tank has some physical issues was a problem; the lack of adequate ongoing training was a problem; and the inadequate, unreliable record keeping by the handler was a problem and the presentation of the case was problematic. If your PSD was properly certified by at least single blind testing (better to have double blind testing); your PSD has no physical issues or you can testify as to how those issues are being addressed; adequate and proper training is ongoing; and you keep accurate and current records of training and deployments, you should be able to avoid this type of situation.