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Legal challenge questions reliability of police dogs

In 2010, a team of researchers at the University of California, Davis set out to test the reliability of drug- and bomb-sniffing dogs.

The team assembled 18 police dogs and their handlers and gave them a routine task: go through a room and sniff out the drugs and explosives.

But there was a twist. The room was clean. No drugs, no explosives.

In order to pass the test, the handlers and their dogs had to go through the room and detect nothing.

But of 144 runs, that happened only 21 times, for a failure rate of 85 percent.

Although drug-sniffing dogs are supposed to find drugs on their own, the researchers concluded that they were influenced by their handlers, and that’s what led to such a high failure rate.

The reliability of drug dogs and their handlers is at the heart of a lawsuit filed in state district court by two Nevada Highway Patrol K-9 troopers and a consultant, who claim that the Metropolitan Police Department’s police dogs, and eventually NHP’s own dogs, were “trick ponies” that responded to their handlers’ cues, and therefore routinely violated citizens’ rights to lawful search under the Fourth Amendment.

The lawsuit goes on to make a number of other accusations in its 104-page complaint: that the Metropolitan Police Department is a racketeering organization, that money seized by motorists was misappropriated by the Department of Public Safety, that the two troopers were subjected to harassment and intimidation by their agency.

But what has defense attorneys and civil advocates taking notice are the allegations of illegal searches, which could call into question the seizure of millions of dollars from motorists on Nevada highways and jeopardize an untold number of criminal cases stemming from those stops.

Washoe County Public Defender Jeremy Bosler said the lawsuit’s allegations are “definitely an issue of concern throughout the state.”

But the case could also shine a light on the use and reliability of drug-sniffing dogs, an area of policing where there are no mandatory standards and little scientific evidence, experts say.

POTENTIAL FOR POWER AND ABUSE

The U.S. Supreme Court has given police “probable cause” to search your vehicle if a police dog detects drugs, typically by sitting, digging or barking.

That is an extraordinary power – officers working without dogs need “a reasonable belief that a person has committed a crime” for such searches. Mere suspicion is not enough, and criminal cases resulting from searches that don’t meet the “probable cause” standard can be, and are, tossed out in court.

When the Highway Patrol created its K-9 program in 2008, it contracted with Donn Yarnall to choose the dogs and train the troopers to handle them.

Yarnall, who created and led the training of the Los Angeles Police Department’s K-9 program in the 1980s, wanted to create a program so reliable that courts and defense lawyers couldn’t challenge the legality of their searches, according to Ken McKenna, the Reno-based lawyer representing Yarnall and troopers Matt Moonin and Erik Lee in the lawsuit.

“This was going to be his legacy that he was going to leave behind as to how a drug dog K-9 program is to be established across the country,” McKenna said.

The dogs and their handlers were deployed along the freeways in Northern and Southern Nevada, believed to be corridors for drug traffickers shuttling drugs from California to the Midwest.

They seemed to be a success. Within their first three years, the dogs helped troopers seize more than $5.3 million in cash, more than 1,000 pounds of marijuana, and dozens of pounds each of cocaine and methamphetamine, according to the lawsuit.

But the troopers noticed abuses. The lawsuit claims that one fellow trooper would make stops in Arizona, out of his jurisdiction. Another profiled Hispanic motorists, checking license plates for Hispanic owners before pulling them over.

And the abuses weren’t limited to their own department, they claim.

Often the K-9 troopers were partnered with a drug task force that paired them with Las Vegas police narcotics detectives and that agency’s K-9 dogs. They would go to a FedEx sorting facility where, the troopers allege, Las Vegas police detectives took packages from a sorting belt and poked holes in them so their dogs could better sniff for drugs inside. In one case, a detective tore open a package and searched its contents.

All of this was done without the consent of the owners of the packages, which would be illegal.

After those allegations surfaced in a report last year by Dana Gentry, a producer for “Face to Face” on KSNV-TV, Channel 3, Las Vegas police investigated and ruled that the detectives’ actions were legal, but the detectives did not follow policy because they didn’t fill out required paperwork when drugs were not found.

The troopers’ lawsuit also claims that the troopers witnessed Las Vegas police handlers abusing their dogs.

“In certain incidents they resort to hanging and then kicking the dog to get it to release,” the lawsuit states. “Trooper Moonin has personally witnessed a Metro handler take his dog behind a car after missing a significant drug seizure and brutally kick his dog repeatedly.”

ALLEGATIONS OF ‘TRICK PONIES’

The abuses – of the dogs and the law – are a result of poor training by Las Vegas police, according to the lawsuit. Las Vegas police trained their dogs to be “trick ponies” that would respond to handlers’ cues when searching for drugs.

That caused the dogs to become more interested in getting treats or toys when searching for drugs, they claim. The Highway Patrol dogs, on the other hand, were not rewarded when they signaled for drugs.

McKenna said he has video proof of Las Vegas police handlers “cueing” their dogs. Two of those videos have been uploaded to YouTube.

One, apparently from the dashboard camera of a Highway Patrol car, claims to show a Las Vegas police dog repeatedly walking past an ice chest with four pounds of metham­phetamine inside during a traffic stop. The handler, who knew the drugs were inside, eventually stops by the ice chest with the dog and gives it a toy, signaling that the dog was successful in finding the drugs.

Las Vegas police declined to comment on the allegations of physical abuse and “cueing,” saying they couldn’t comment on pending litigation. But they said that all officers receive training to reflect updates to Fourth Amendment case law.

Department of Public Safety spokeswoman Gail Powell dismissed the allegations, saying they were untrue and that the lawsuit was filed by “dis­gruntled” officers.

FEW STUDIES AVAILABLE

Despite the wide legal latitude police dogs are given, there are few studies showing how success­ful, or un­successful, they are at finding drugs in the field.

But what does exist casts doubt on their reliability.

About a month after the results of the UC Davis experiment were released, the Chicago Tribune published a study looking into three years of drug searches by suburban Illinois police departments.

The study revealed that when dogs “alerted” officers to drugs, they were right 44 percent of the time. For Hispanic drivers, the rate was only 27 percent.

Police told the Tribune that when drugs weren’t found, the dogs were detecting drug residue that was left in the vehicles.

But that explanation is bogus, according to Lawrence Myers, an Auburn University professor who has studied police dogs for 30 years.

While residual odors can cause false alerts, Myers said, too many dog handlers often use it as an excuse, making it all but impossible to assess accurately the reliability of the dog’s nose or the validity of a search.

“Frankly, many times it’s a search warrant on a leash,” Myers said of the drug-sniffing police dog.

Nationwide, the K-9 training industry lacks the cohesion and standards that would allow for objective measuring of police dogs’ reliability.

Through the Institute for Biological Detection Systems at Auburn University, which Myers founded in 1989, he has researched the effectiveness of drug-sniffing dogs while calling for the industry to improve its training methods and accountability.

For his efforts, he has been shunned by most in the industry, he said.

Fearing they will be blackballed themselves, many K-9 handlers don’t speak out about problems they see in the industry, he said.

“I’m afraid there is a conspiracy of silence” within the tight-knit police dog community, Myers said.

The lawsuit illustrates that, he said, with the troopers who spoke of being shunned by fellow troopers and removed from their K-9 handling duties.

Fellow researcher Lisa Lit noticed a split in the K-9 community after her UC Davis study was published.

Many handlers were unhappy with the findings, and at least one organization called it invalid because of flaws in the methodology. They said it didn’t conform to normal testing standards for police dogs.

Yet others handlers thanked her for the research and encouraged her to pursue more research, she said.

However, she said she continues to have trouble getting K-9 teams to volunteer to help her with her research.

CONSEQUENCES OF FALSE SIGNALS

When police dogs signal for drugs, there can be con­sequences even when no drugs are found. Police can seize money they find in the car if they believe the money has ties to drugs.

The legal standard is weak, lawyers say, and citizens who want their money back have to go through the court system, which can be costly. They often cite the 2009 case of a 22-year-old Indiana man pulled over for an unsafe lane change on an Indiana interstate.

The man, who had won $50,000 from a car accident settle­ment, was found with $17,500 that he later claimed was for the purchase of a new car for his aunt. A drug dog alerted to drugs in his car – twice – and police seized his money. No drugs were ever found, and Indiana authorities held his money for more than a year.

The American Civil Liberties Union of Nevada has received complaints from people concerned about the reliability of drug dogs, but Allen Lichtenstein, the organization’s general counsel, said his office doesn’t have the expertise to independently verify the claims.

“If it can be shown that drug dogs are being used as a ruse to pretend to have probable cause, that would be a very serious constitutional violation,” Lichtenstein said.

Regardless of whether that allegation is proven – the case could be settled before it ever reaches a jury – the claims by three experts against their own department is extraordinary and could jeopardize criminal cases.

Las Vegas-based lawyer James Oronoz, who has defended people in drug cases, said the lawsuit could have a big ripple effect on the criminal defense community.

“I think it’s probably in­cumbent upon any criminal defense attorney in town … to really take a look at those (cases) and examine the circumstances under which they (police) made their affidavits,” he said.

McKenna, the troopers’ lawyer, said the case calls into question whether drug dogs should be given the kind of legal latitude they currently enjoy.

“The idea that dogs are the reason to get probable cause for searches really needs to be evaluated by the courts, by the police departments utilizing them and by defense attorneys,” he said.

Moonin and Lee resigned from the Highway Patrol’s K-9 program last year, amid concerns of legal abuses and claims that Department of Public Safety Director Chris Perry was dedicated to ruining the program. They’re still troopers. Yarnall is no longer a paid consultant for the agency.

They declined to comment for this article through Mc­Kenna.

“They’re just outraged that they were witness to citizens’ rights being violated by these dogs that are currently out there that are trained to alert on cue,” he said. “They just couldn’t be part of that, and they just think it needs to be exposed.”

Las Vegas Review-Journal reporter Ed Vogel contributed to this report. Contact reporter Lawrence Mower at lmower@reviewjournal.com or 702-383-0440. Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.

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