By Tim Cushing
For as long as people have been driving, cops have been imagining reasons to pull them over and coerce them into “voluntary” searches. The Supreme Court’s Rodriguez decision (sort of) put an end to extended stops — the ones that start with a perceived violation that’s dragged out until a drug dog arrives. Unfortunately, that decision only removed part of the equation. The Supreme Court’s Heien decision made it possible for cops to rely entirely on pretext to engage in fishing expeditions by saying cops only had to think they witnessed a traffic violation, rather than actually be accurate about the laws they’re tasked with enforcing.
Cops are still trying to bring drug dogs to routine traffic stops. The Rodriguez decision is generally taken to mean cops just need to be quicker about rustling up a K-9 unit. Cops love drug dogs because they allow cops to perform the warrantless searches they want to perform. The drug dog’s handler can call literally any movement by the dog an “alert,” turning normal dog behavior into “probable cause” for a search. It doesn’t help that the dogs are rewarded for every alert and given no positive reinforcement for failing to find anything interesting.
Courts have historically been willing to cut drug dogs as much slack as they cut their law enforcement officer handlers. Subjective interpretations of anything an animal does to please its master is considered close enough to Fourth Amendment compliance to justify warrantless searches. Every so often, a court will question the reliability of the dog or the intent of its handler, but those are anomalies.
This case, via FourthAmendment.com, is an amazing anomaly. Not only did the court choose to hear from experts on drug dog training and handling, it actually went so far as to call into question the reliability of every drug dog in the state.
The suppression order [PDF] contains a subheading rarely seen in federal court decisions:
A. The court has serious concerns about Tank’s training and reliability.
Tank is Officer Moore’s drug dog. Officer Moore handled the training in accordance with Utah’s Peace Officer Standards and Training (POST) guidelines. Unfortunately, those guidelines do nothing to prevent officers from turning drug dogs into subservient partners with a desire to please and a willingness to respond to handler cues.
Officer Moore claimed he worked with Tank regularly to improve both obedience and “drug locating.” The court says this simply isn’t true — not from what’s on the record.
Notwithstanding Officer Moore’s testimony, evidence at the Hearing raised serious questions about the sufficiency and veracity of Tank’s training. First, the police training records supported that between July 2018, when Tank was certified, and November 2018, Officer Moore only conducted four narcotics trainings with him. Moreover, from October 20, 2018 through March 1, 2019, a period that enveloped the search of Mr. Jordan’s vehicle, Officer Moore only performed one narcotic training exercises that involved searching an area that did not contain narcotics, compared to 27 “normal” exercises where there were narcotics present to be found.
The defense brought in an expert witness, Dr. Mary Cablik, who has two decades of drug dog training experience working with POST units in Nevada and California. Cablik said the absence of “blind” training is a real problem. If the dog is only tested in areas where the handler knows drugs will be found, the dog carries this knowledge on to the real world and will continue to search for nonexistent drugs until it gives its handler what they want: an “alert.”
Here’s how a drug dog should be trained, according to the defense expert:
Dr. Cablk opined that in order to properly train a K9, a program must take steps to prevent handler bias and cuing, namely through blind training. Singleblind training occurs when the handler does not know how many, if any, quantities of narcotics are hidden in a scenario, but someone else present does. The third person may be present to judge whether the dog passed the test. Such a procedure is important because when a handler knows how many hides are present in a scenario, he will continue to search with his dog until the dog finds them all, which does not create a “realistic scenario that mimics what happens on the street.” Single-blind testing is important to train a dog to work independently and in turn gives a handler confidence in his dog. Nevertheless, single-blind training is insufficient to prevent bias and cuing. 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 K9. Thus, in Dr. Cablk’s opinion, the “only means that you can use to demonstrate the reliability of a K9” is to have no one who is present during the training know how many, if any, hides are present. This is considered double-blind training.
Utah’s training can barely be called “training.”
Utah POST does not use double-blind training or testing, and its certification testing is not even done single-blind, as the handler knows exactly how many hides will be present.
Tank’s performance at this traffic stop left a lot to be desired.
Tank did not perform a trained final response while conducting a sniff of Mr. Jordan’s vehicle. He never demonstrated any clearly objective behavior communicating that he had detected a target odor. Rather, Tank demonstrated the innate natural behaviors of a dog going through the paces of sniffing the vehicle. Officer Moore relied on Tank’s natural behaviors, which he perceived as “alerts,” to conclude that Tank had detected the odor of narcotics emitting from Mr. Jordan’s vehicle. […] There is nothing on the video of the sniff from which a third person can objectively conclude that Tank had performed to respond as he had been trained to do when he detected a target odor.
Fortunately, there was some video. But none of it came from Officer Moore. The court points out Moore was required to wear a body cam but was not wearing one during this traffic stop. The recording was captured by another officer on the scene and much of that recording of the stop was obstructed by the officer’s vehicle.
Allowing a dog to give a cop permission to perform a warrantless search raises serious Fourth Amendment questions. The court here says the training processes and dog behavior observed here aren’t nearly enough to elevate Tank above his unofficial position as Officer Moore’s personal Clever Hans.
Then the court goes further, suggesting the state’s lax standards for drug dog training make every drug dog in the state unreliable.[T]he court finds, based on the testimony of Dr. Cablk and the records before it, that Utah POST Training inadequately addresses, and therefore fails to remove the risk of, inadvertent handler bias or cuing. Specifically, Utah POST’s failure to implement double-blind training raises questions as to the independence of its K9s and casts doubt as to whether the K9s are alerting or indicating because they actually detect the odor of narcotics or because they have learned that displaying such action is the best way to please their masters. This doubt is not allayed by Utah POST’s certification process, as the final test that a K9 must pass in order to be certified is not even performed single-blind. As such, the K9’s handler in the exam, who is the same officer who has worked with the K9 for months and has a clear interest in having his K9 be certified, knows exactly how many hides will be present in the exam and can therefore continue to search until the K9 finds them all. Such an examination does not reflect a real-world setting and does not, therefore, indicate that a passing K9 can reliably detect, and communicate his detection of, narcotics in the field.
Utah’s training does not produce reliable drug dogs. Officer Moore’s drug dog is possibly more unreliable than most, but this order makes it clear everyone who’s been subjected to a drug dog sniff should challenge it. The state POST training has produced little more than handy Fourth Amendment circumvention tools for officers to use at will. This court is having none of this and refuses to condone the deployment of dogs that are basically trained to please their handlers, rather than actually detect narcotics.