Issue 7 | January/February 2018 | $9.95
Proper Bite Placement
Teaching K9s How and Where to Bite
2018
Mission K9 Rescue
Canine Vets Return to Civilian Life
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Canine Legal ROADSIDE REWARD AND K9 RELIABILITY
By John M. Peters, Attorney at Law
A
decision out of the 7th Circuit Court of Appeals two years ago received little notice. It should have set off alarm bells for the issues it raised regarding the training and reliability of police K9s. The court in U.S. v Bentley, 795 F3d 630 (7th Cir 2015), upheld the denial of the defendant’s suppression motion and a jury verdict convicting the defendant of a single count of possession of more than five kilograms of cocaine with intent to distribute, in violation of 21 USC § 841(a)(1). The search and seizure of 15 kilograms of cocaine valued at $2.4 million was, in part, the result of a K9 alert during an exterior vehicle sniff on a traffic stop. This is good news, right?
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Yet, the very first sentences of the Court’s opinion make it clear that the Court is looking not only at this K9, but all K9s’ reliability with a raised eyebrow. “A great many police departments rely on trained dogs to detect hidden drugs (or other substances, including explosives, blood, and human remains). Nagging questions remain, however, about the accuracy of the dog’s performance, especially when a dog’s alert provides the sole basis for a finding of probable cause to search or arrest someone.” Id at 632.
Decided two years before Bentley, the U.S. Supreme Court’s decision in Florida v Harris, 568 U.S. (2013), left many in the K9 community disappointed when it failed to provide bright-line definitions of what was necessary to establish a narcotics K9’s reliability. In reversing the Florida Supreme Court, the U.S. Supreme Court left the rule exactly where it had been before Harris was decided. The U.S. Supreme Court refused to set hard-and-fast rules that might handcuff a trial court in making the determination on the reliability, and therefore admissibility, of K9 detection evidence. Instead, the U.S. Supreme Court left this determination within the sound discretion of the trial courts where it had resided all along. After Harris — as before Harris — trial courts remain free to consider any and all evidence of the reliability of a police K9 in making their decision as to whether an alert by such a dog is sufficiently reliable to amount to probable cause. Referring to the lack of guidance provided by Harris, the Bentley Court noted, “The Court did not, however, suggest what weight courts should give to different types of evidence, nor did it offer any tiebreakers for district courts to use.” Id at 636. With this background, the Bentley Court then focused upon the impact of reward-based training on reliability of alert: “Bentley rightly points out that Lex is smart. Shively testified that he rewards Lex every time the dog alerts in the field. Presumably the dog knows he will get a “giftee” (a rubber hose stuffed with a sock) every time he alerts. If Lex is motivated by the reward (behavior one would expect from any dog), he should alert every time. This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause.” (Emphasis added) Id at 636. *** “[w]hat if Lex alerts every time he is called upon? The fact that drugs are (or are not) found would have nothing to do with his behavior. That, in essence, is what Bentley is arguing here. The evidence Bentley was able to gather suggests that Lex is lucky the Canine Training Institute doesn’t calculate class rank. If it did, Lex would have been at the bottom of his class.” (Emphasis added) Id at 632.
Noting that Lex had a 93 percent alert rate, but only a 59.5 percent accuracy rate in the field, the Court nevertheless found that rate adequate based upon 7th Circuit precedent upholding an accuracy rate of 62 percent and other courts that had upheld even lower rates. However, the Bentley Court sent a note of warning to the K9 community: “This should not become a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence. We will look at all the circumstances in each case, as we must.” (Emphasis added) Id at 636. In Bentley, there were already multiple factors to establish reasonable suspicion of criminal activity before Lex’s sniff and alert. This is an important aspect to understand because the Court found Lex’s questionable reliability less of a factor in the overall outcome of the encounter. As the Court made clear, “We will look at all the circumstances in each case…” The more that your probable cause to search is based upon a K9 alert, the closer the courts will examine the reliability of that dog. Heed the warning of the Bentley Court and give particular thought to how you will defend roadside reward-based training if you use that method. In the future you may be called upon to do just that.
John M. Peters is an attorney who has been practicing police liability law in the state and federal courts for more than thirty years. When not in court, John participates in decoy work, tracking, aggression, and obedience for sport and at the many police canine workshops he attends. John’s legal and canine backgrounds led to requests for him to serve as an author, instructor, and legal adviser to the police canine community where his canine legal seminars are in high demand. Email: caninelawyer@gmail.com
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