CASE LAW ON DOGS RELIABILITY / TRAINING

CASE LAW ON DOG’S RELIABILITY / TRAINING / CERTIFICATION:

SUMMARY:

The dog must be trained, certified and reliable. The dog does not have to be 100% accurate or perfect. The courts have recognized the fact that “false responses”, “false positives” or “false alerts” occur and dogs can be as low as 54% accurate.

The courts differ on how the dog’s training, certification and reliability are proven. Some courts allow testimony from the handler as an “expert of their dog” in order to establish these three elements.

Other courts want to see and review the training, certification and possibly deployment records. Then the handler is questioned about those records. The handler should maintain a percentage of reliability of his dog in training to prove reliability.

The case on this point is:

United States v Cedano-Arellano
(332 F. 3d 568 (2003) Ninth Circuit:

A drug detection dog’s training and certification records are discoverable by the defense. These materials at issue are crucial to defendant’s ability to assess dog’s reliability, a very important issue in his defense, and to conduct effective cross-examination of dog’s handler.

1) United States v Venema (563 F. 2d 1003 (1977) Tenth Circuit

Statement in affidavit for search warrant that dog which had allegedly detected the presence of narcotics in a locker, was a “trained, certified narcotic detector dog,” was sufficient to the judge.

2) United States v Klein (626 F. 2d 22 (1980) Seventh Circuit

Affidavit for search warrant was not deficient by failing to show the reliability of the dog where the affiant told the judge that the dog “graduated from a training class in drug detection in _________” and “has proven reliable in detecting drugs and narcotics on prior occasions.”

3) United States v Viera (644 F. 2d 509 (1981) Fifth Circuit

Warrant to search suitcases was supported by probable cause, based upon statement in affidavit that one dog who positively alerted to the suitcase had successfully discovered drugs on 409 occasions, and another dog in over 100 instances.

4) United States v Jodoin (672 F. 2d 232 (1982) First Circuit

A suitcase at an airport was sniffed by a narcotics detector dog. The dog did not alert. Agent’s continued their investigation, developed probable cause, absent the canine alert, applied for and were granted a search warrant. The suitcase contained several pounds of cocaine.

Although the dog did not react when it sniffed the suitcase, the agents pointed out that, according to dog handlers, the dogs are not foolproof, they are less accurate on hot muggy days and drug traffickers have found ways to mask the odors of contraband to fool detection efforts.

The court stated that the dog’s failure to react does not destroy the probable cause that would otherwise exist. It is just another element to be considered by the magistrate.

5) United States v Sentovich (677 F. 2d 834 (1982) Eleventh Circuit

Evidence that dog had been trained in drug detection was enough to establish reliability of the dog for purposes of search warrant application.

6) United States v Lewis (708 F. 2d 1078 (1983) Sixth Circuit

A specially trained police dog sniffed an array of checked airline baggage. The dog displayed “not a strong positive reaction” to a suitcase.

The suitcase flew to its destination where another drug dog sniffed an array of suitcases, including the original bag. This dog exhibited a “positive reaction for controlled substances.” A search warrant was obtained based upon this alert.

7) United States v Spetz (721 F. 2d 1457 (1983) Ninth Circuit

A dog sniff can support probable cause for a search warrant, only if sufficient reliability is established.

Where a search warrant affidavit stated that two detector dogs had independently alerted to a vehicle, and one dog had previously alerted correctly on 60 of 66 occasions, and that the other dog had previously alerted correctly on 2 of 2 occasions, established probable cause.

8) United States v Dicesare (765 F. 2d 890 (1985) Ninth Circuit

Conviction of defendants was proper where defendants were provided with the actual training records of the dogs used in the searches and two chapters of the manual on dog training.

9) United States v Fernandez (772 F. 2d 495 (1985) Ninth Circuit

Mere fact that narcotic dog has “hit” on a piece of luggage or cargo does not, in absence of any factor supporting its reliability, establish probable cause.

Without evidence of the dog’s reliability, the hit does not establish probable cause.

10) United States v Trayer (898 F. 2d 805 (1990) District of Columbia Circuit

Passive alert of pointing to a roomette gave probable cause, even though the dog had been trained to exhibit aggressive behavior on detecting drugs.

The handler testified that the dog had alerted by pointing on majority of occasions and had alerted correctly 58 out of 60 times.

11) United States v Jacobs (986 F. 2d 1231 (1993) Eighth Circuit

Search warrant affidavit omission, stating that drug sniffing dog had shown interest in package without disclosing that no “alert” had occurred, rendered warrant invalid.

The dog showed interest in a suspicious Fed-Ex package. The dog failed to alert and the dog’s handler was not sure the package contained drugs.

A second dog examined the package. This dog failed to alert or show interest in the package.

Because neither dog “alerted,” there was no probable cause for the warrant.

12) United States v Gonzalez-Acosta (989 F. 2d 384 (1993) Tenth Circuit

Defendant was not entitled to pre-trial production of dog’s training file including veterinary records and false-positive / false-negative alert records.

The dog was certified on the day in question and had properly alerted to the presence of contraband, and the defendant was allowed extensive cross-examination of the dog’s handler at the suppression hearing to explore the issue of dog reliability.

13) United States v Allen (990 F. 2d 667 (1993) First Circuit

Dog sniff test of Express Mail package containing LSD generated probable cause for issuance of warrant to search package for contraband, despite the fact that dog was not trained to find LSD and the trained dog alerted to the package.

14) United States v Lingenfelter (997 F. 2d 632 (1993) Ninth Circuit

A canine sniff alone can supply probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog’s reliability.

15) United States v Frost (999 F. 2d 737 (1993) Third Circuit

In an airport search, probable cause existed for a search warrant, despite omission in affidavit that drug dog did not alert to suitcase. Affiant would have explained that drug carriers mask the scent of drugs (as happened in this case) if he had included the dogs failure to alert, and substantial other evidence supported probable cause.

16) United States v Diaz (25 F. 3d 392 (1994) Sixth Circuit

Evidence showed drug dog was properly trained and reliable, the dog was trained, certified and re-certified. The defendant’s expert, a former officer and now dog trainer, did not detract from dog’s trainer qualifications.

A very low percentage of false positives is not fatal to finding that drug dog was properly trained and certified.

17) United States v Delaney (52 F. 3d 182 (1995) Eighth Circuit

Affidavit stating that drug detector dog was certified in detecting drugs and in the past three years had alerted more than 50 times in situations where narcotics were located and that dog’s handler was certified drug canine handler and had received 76 hours of training in drug dog handling was sufficient to establish dog’s reliability.

18) United States v Williams (69 F. 3d 27 (1995) Fifth Circuit

Fact that dog alerted for drugs provided probable cause to search vehicle.

Because showing of reliability of dog that has alerted for drugs is unnecessary with regard to obtaining search warrant, showing of dog’s reliability is not required if probable cause is developed on sight as result of a dog sniff of a vehicle.

19) United States v Guzman (75 F. 3d 1090 (1996) Sixth Circuit

Although trained dog’s interest (not a positive alert) in defendant’s bag would not alone constitute probable cause, officer’s awareness of dog’s interest may be considered by the court when determining whether totality of circumstances established probable cause.

20) United States v Berry (90 F. 3d 148 (1996) Sixth Circuit

Positive reaction by properly trained narcotics dog can provide probable cause; however, training and reliability of the dog must be established.

Statements in affidavit which referred to police dog which detected the odor of narcotics coming from an automobile which reasonably implied that the dog was trained and qualified to conduct narcotics investigations were sufficient to training and reliability of the dog for the search warrant.

Affidavit need not describe particulars of dog’s training and accounting of dog sniff indicating presence of narcotics. Reference to dog’s training in narcotics investigations are sufficient to establish dog’s training and reliability.

21) United States v Scarborough (128 F. 3d 1373 (1997) Tenth Circuit

Search warrant affidavit indicating that drug detection dog was certified, was trained to alert to drug odors and had overall reliability rate of 92% in alerting to controlled substances and contraband, supported finding the dog was credible.

The dog’s alert to the package (U.S. Mail) detained by postal authorities established probable cause, even with the dog’s lower success rate of 79% reliability during its previous assignments.

22) United States v Kennedy (131 F. 3d 1371 (1997) Tenth Circuit

Omission of information about drug dog trainer’s failure to keep accurate records or train dog on regular basis from application for search warrant did not render invalid warrant. The affidavit stated the dog was trained and certified and did not contain any false statements.

The omitted information in the affidavit would still have shown dog to have 70 – 80% success rate and would have established probable cause.

A search warrant based upon a narcotics canine alert will generally be sufficient on its face if affidavit states that the dog is trained and certified to detect narcotics.

23) United States v Rivas (157 F. 3d 364 (1998) Fifth Circuit

“Casting” by drug detection dog did not provide reasonable suspicion of criminal activity.

As the dog handler testified, an “alert” is scratching and biting at an object and a “cast” is temporarily stopping, giving part of object minute attention and then continuing with inspection.

24) United States v Owens (167 F. 3d 739 (1999) First Circuit

The existence of probable cause to search an automobile based upon an alert by a drug dog depends upon the dog’s reliability.

Drug dog was sufficiently reliable to support search of automobile upon arrest of driver, despite dog’s failure to pass two certification tests, where dog was certified at time of search at issue, and both training supervisor and dog’s handler testified as to dog’s reliability.

25) United States v Patten (183 F. 3d 1190 (1999) Tenth Circuit

An alert from a canine with a sufficient accuracy record in detecting drugs is generally sufficient to establish probable cause for arrest.

The canine alerted to a suitcase. Inside was ephedrine, a federally controlled chemical substance used in the production of methamphetamine.

26) United States v Navarro-Camacho (186 F. 3d 701 (1999) Sixth Circuit

Even though the officer testified that his narcotic detector dog occasionally alerted falsely and his rate of reliability was between 90 and 97 percent, the court ruled that the dog was reliable.

(This is the only case that refers to “pseudo-cocaine” (drugs). Suspect Navarro-Camacho claimed officers smeared “pseudo-cocaine” on his vehicle so the narcotics dog would falsely alert and give officers probable cause to search. The court concluded the officers did not plant “pseudo-cocaine” on the vehicle.)

27) United States v Sundby (186 F. 3d 873 (1999) Eighth Circuit

Warrant affidavit sufficiently showed narcotic detector dog’s reliability where the dog and handler were certified by the United States Police Canine Association, the dog was trained in detection of certain illegal drugs and the dog was exposed to several (U.S. Mail) packages at the same time.

To establish dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs, the affidavit need not give detailed account of dog’s track record or education.

28) United States v Hill (195 F. 3d 258 (1999) Sixth Circuit

Narcotics detection dog was properly trained and reliable, even though the dog’s handler testified that he did not know exactly what training he was actually required to perform with his dog, and even though handler failed to keep records of the number of times the dog indicated “false alert.” The supervisor of the canine unit testified that he trained both handler and dog, supervisor described those procedures and supervisor stated the dog passed training, was certified and passed post-certification training.

29) Resendiz v Miller (203 F. 3d 902 (2000) Fifth Circuit

Drug-sniffing canine alert is sufficient, standing alone, to support probable cause for a search.

The fifth circuit has not yet decided whether a drug dog alert alone is sufficient to constitute probable cause to arrest the person associated with the item (currency) that prompted the alert.

Because other factors supported the probable cause in this case, the court does not reach this question.

30) United States v Limares (269 F. 3d 794 (2001) Seventh Circuit

Affidavit of officer which stated that trained drug detection dog, which had proven reliable in past, had alerted to presence of drugs in a parcel, established probable cause for issuance of search warrant.

The record of this dog indicated that 62% of dog’s alerts were followed by the discovery of drugs, and that another 31% signaled the presence of currency, many of which likely resulted from currency with unusually high concentrations of drug revenue.

An affidavit for a search warrant based upon a positive canine alert, need not describe training methods or give dog’s scores on final exams. It is enough if a dog is reliable in the field.

31) United States v Gill (280 F. 3d 923 (2002) Ninth Circuit

An officer developed reasonable suspicion to submit a package at a U.S. post office to a narcotics canine sniff. The dog did not alert. However, this drug dog was not trained to detect methamphetamine and PCP, due to the risk these substances pose to dogs. Accordingly, the officers continued their investigation, developed probable cause, absent the canine alert, applied for and were granted a search warrant. The package contained 25 ounces of PCP.

32) United States v Gregory (302 F. 3d 805 (2002) Eighth Circuit

The drug sniffing dog was found to be reliable based upon:

• Dog was highly trained;
• Dog received satisfactory certification;
• Dog performed her duties flawlessly;
• Dog had never given a false positive alert.

33) United States v Outlaw (319 F. 3d 701 (2003) Fifth Circuit

A canine’s positive alert to a suitcase found to contain phencyclidine (PCP) was reliable, even though PCP was not one of the drugs that the dog had been trained to detect.

It is undisputed that this drug-detecting team successfully completed all standard training procedures for border patrol drug-detecting teams and that this canine was certified to detect a variety of narcotics, including marijuana and its derivatives, cocaine and its derivatives, heroin and its derivatives and methamphetamine.

34) United States v Johnson (323 F. 3d 566 (2003) Seventh Circuit

In determining whether search of defendant’s vehicle was justified by probable cause, district court could not disregard alert by drug dog on grounds the dog’s handler did not testify at suppression hearing, when another officer, who observed the alert from a distance, did testify. The handler was not the only officer capable of interpreting the behavior of the dog, which was an aggressive alert, as alerting to the presence of drugs or drug infested currency.

35) United States v Cedano-Arellano (332 F. 3d 568 (2003) Ninth Circuit

A drug detection dog’s training and certification records are discoverable by the defense. These materials at issue are crucial to defendant’s ability to assess dog’s reliability, a very important issue in his defense, and to conduct effective cross-examination of dog’s handler.

Officers arrest of defendant was supported by probable cause were defendant was nervous and evasive in response to routine questioning and a certified narcotics detector dog alerted to the presence of contraband in the defendant’s vehicle.

36) United States v Sanchez-Pena (336 F. 3d 431 (2003) Fifth Circuit

Assuming that proof of dog’s reliability was required in order to establish probable cause, evidence was sufficient to support the dog’s alert was reliable and established probable cause to search the vehicle. The dog and handler completed a police narcotic detector dog school and the handler was certified as a canine handler and had previously testified in court as an expert in canine handling.

37) United States v Ramirez (342 F. 3d 1210 (2003) Tenth Circuit

Fact that a drug sniffing canine failed to alert on a mailed package which had been detained for investigation, did not require that all investigation of that package cease. Therefore, the subsequent opening of the package, pursuant to a search warrant obtained after two more canines alerted to the package, did not violate the Fourth Amendment. The factors which initially gave rise to reasonable suspicion of the package were unchanged by the negative results of the first sniff test.

Dog sniffs are not searches within the meaning of the Fourth Amendment.

38) United States v Boxley (373 F. 3d 759 (2004) Sixth Circuit

We recognize that a positive canine alert indicates that narcotics are present in the item sniffed or have been present in such a way as to leave a detectable odor.

In order to admit evidence of a dog’s alert to an aroma of drugs, it is not necessary to provide the dog’s training and performance records. Rather testimony as to the dog’s record is sufficient. While training and performance documentation would be useful in evaluating a dog’s reliability, the testimony of the dog’s handler sufficiently established the dog’s reliability. Thus, after it is shown the dog is certified, all other evidence relating to his accuracy goes only to the creditability of the testimony, not to the dog’s qualifications.

It is not necessary to show that the dog is accurate 100% of the time, because a very low percentage of false positives are not necessarily fatal to finding that a drug detection dog is properly trained and certified.

39) United States v Lopez (380 F. 3d 538 (2004) First Circuit

The existence of probable cause based upon an alert by a drug dog depends on the dog ’s reliability.

In this case, the handler testified that the dog was certified at the time of the search and had never given a false indication.

40) United States v Robinson (390 F. 3d 853 (2004) Sixth Circuit

A positive indication by a properly trained dog is sufficient to establish probable cause. To support such a determination, the training and reliability of the dog must be established.

In this case, three dogs alerted to the Fed Ex package. All three dogs were certified. After it is shown that the dog is certified, all other evidence relating to his accuracy goes only to the credibility of the testimony, not to the dog ’s qualifications.

The court reviewed the performance statistics and other documentation regarding the dogs, and found that these materials established the dogs’ proper training and reliability.

41) Illinois v Caballes (125 S. Ct. 834 (2005) U.S. Supreme Court

Use of a well trained narcotics detection dog, one that does not expose noncontraband items that otherwise would remain hidden from public view, during lawful traffic stop does not violate the Fourth Amendment.

42) United States v $30,670 (403 F. 3d 448 (2005) Seventh Circuit

Drug dog was a reliable detector dog at the time of his alert to airline passenger’s cash, although dog had a handful of false positives over the years, the dog in general had a high rate of success, specifically, drugs or currency were found after 97.6 percent of his alerts (2.4 percent false response rate), and drugs were found after 70.1 percent of his alerts.

The drug dog sniff methodology was not defective, agents, outside the presence of the canine handler and dog, put passenger’s money into a plastic bag and placed the bag into one of the many empty suitcases in the DEA office. The canine officer then commanded the dog to search, and the dog sniffed around the room before alerting to the suitcase, the agents removed the plastic bag containing the money from the suitcase and the dog continued to alert to the bag, not the suitcase.

43) Smith v Texas (125 S. Ct. 1726 (2005) U.S. Supreme Court

The U.S. Supreme Court refused to hear this case on appeal from the State of Texas. By refusing to hear the case, the U.S. Supreme Court let the ruling from the Texas court stand:

Defendant’s privacy interests were not invaded when officer walked up the defendant’s driveway to allow drug dog to sniff defendant’s garage door, and thus drug dog sniff did not constitute improper search. Anyone approaching defendant’s house would have walked up the driveway and passed near the garage in order to reach the entrance of the house.

Drug dog did not represent an enhancement of officer’s senses. The drug dog sniff did not explore the details of the house but merely revealed the presence of contraband.

Record supporting finding that drug dog was well-trained, and thus dog sniff of the garage door did not constitute improper search. The dog was certified by a state canine association and the dog continued to be trained after certification.

Warrant to search defendant’s house was supported by probable cause when the drug dog alerted after sniffing the garage door.

44) United States v Donnelly (475 F. 3d 946 (2007) U.S. Court of Appeals Eighth Circuit

Drug dog's positive indication of presence of narcotics during drug sniff of defendant's car established probable cause to conduct warrantless search of the car; although drug dog had a record of only 54 percent accuracy for positive alerts, the dog received consistent training, he was properly certified, dog was considered reliable by prior courts.

Assuming that the dog is reliable, a dog sniff resulting in an alert on a container, car, or other item, standing alone, gives a law enforcement officer probable cause to believe that there are drugs present.

45) United States v Brown (500 F. 3d 48 (2007) U.S. Court of Appeals First Circuit

Police had probable cause to arrest defendant; upon conducting valid investigatory stop of truck in which defendant was passenger, where:
a) Defendant was caught in several lies and inconsistencies related to his name, age, and ownership of duffel bags in the truck;
b) His demeanor during the stop evoked suspicion;
c) A police dog alerted to the presence of contraband inside the truck;
d) An interior vehicle sniff led the dog to single out one of the defendant’s duffel bags.

The existence of probable cause for a search based on a positive canine sniff depends upon the dog’s reliability.

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