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Posted on 07/02/2012 9:26:02 AM PDT by Altariel
Drug dog's nose is good enough, judge rules in cocaine case The decision allows prosecutors to proceed with charges against a man arrested in 2011.
By Laurence Hammack 981-3239
The nose of a drug-sniffing police dog is not so sharp, but it's good enough to support cocaine charges against Herbert Green.
That was the opinion of federal Judge Glen Conrad, who denied a motion this week to suppress the drugs found in Green's sport utility vehicle with the help of a police dog named Bono.
Green's lawyer had argued that Bono's track record — drugs were found just 22 times out of 85 "alerts" by the dog — was so poor that police lacked probable cause to search Green's SUV.
Had Bono failed the legal smell test, Green might have escaped prosecution on charges of having a kilogram of cocaine hidden in the back of his Lincoln Navigator.
Bono "may not be a model of canine accuracy," Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.
However, the judge ruled that other factors, including the dog's training and flawless performance during re-certification sessions, were enough to overcome a challenge raised by Green's attorney, public defender Randy Cargill.
The ruling clears the way for prosecutors to try Green on charges of possession of cocaine with intent to distribute.
Green, 45, of Pittsburgh, was arrested in March 2011. A state trooper patrolling Interstate 77 in Wythe County pulled him over on suspicion of having illegally tinted windows and an obscured license plate.
When Bono was called to the scene, he began to wag his tail furiously after catching a whiff of something near the rear panel of the vehicle, according to earlier testimony.
Prosecutors say that gave police probable cause to search the SUV, where they found a duffel bag holding cocaine and about $7,000 in cash.
But after learning that Bono had an accuracy rate of just 26 percent, Cargill filed a motion seeking to suppress the evidence.
At a hearing earlier this month, Assistant U.S. Attorney Ashley Neese defended the performance of the German shepherd.
In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.
Taking those cases into account, Conrad found that Bono's accuracy rate was at least 50 percent.
In determining whether police had probable cause, the judge wrote that he had to consider other factors beyond the dog's track record.
As a federal appeals court once put it, "the reliability of a drug-detection dog does not rise or fall on the basis of one sniff."
That's less than 25%.
That's not the dog's problem: it's motivation is to please its master.
That's the problem of an officer who has *taught* the dog to signal for a positive when the officer *wants* it to signal for a positive.
Interesting Sixth Amendment ramifications, as you cannot likely put Fido on the witness stand to cross-examine him.
Of course ruling otherwise would put the speed camera industry out of business...
Mea culpa; it’s approx. 25.88%
Still, the principle remains: we as a society are accepting this violation on the Fourth Amendment so we can “win” the War on Drugs.
I posit that there will be only one “winner” in this war-—The State, which is why the State is so interested in fighting it.
While I don’t necessary agree with the decision, the moral is still, “don’t carry a kilo of cocaine in your car.” Would the result have been the same (sufficient probable cause) if after alerting the cops had searched and found no drugs but did find a handgun. Would the gun have come in as evidence in a carrying without a permit charge? Probably.
Actually...the dog indicates on the odor, which can linger for days after the drug is no longer there. I have “some” experience in this matter and to say that they didn’t find drugs and therefore the hit was false is inaccurate.
The dog hit on the odor, not the presence of drugs.
The training records would show how many false hits for odor presence the dog has had.
The other question is, who doubts that there are not dirty cops who would happily plant drugs or other contraband on people for the headlines or the desire to entrap certain citizens.
If they hadn’t found drugs, Congress could just acess a tax/penalty for not having drugs and Roberts would uphold it as a taxing power under an invisible aspect of the taxing powers in the Constitution!
Yeah, I agree. It is not “false” hits or indications. It is that the dog can detect the chemical in such small amounts that it may not be there anymore (it is detecting where is was, or was brushed against, etc.) or it is such a small amount that the human officer either cannot see or find it (think cocaine and paper money). If the dog is well-trained, it can be incredibly reliable (no matter what a judge or defense lawyer says). They can find such low concentrations of chemicals that most people wouldn’t believe it.
That’s the problem with these damned dogs.
When the search doesn’t turn up anything it’s not like the DAs and courts get a report showing a false alert.
Every single time a case involves the drug dog they of course have a positive alert.
That’s why there’s a case.
I wonder when the courts will have the courage to tackle this.
I’m not encouraged about courts right now for some reason.
Stories are leigon of cops pulling over drivers who fit a certain drug profile on a bogus infraction and asking for permission to search the car. When the driver refuses they bring in the drug dogs.
What we are not told is how many non-alerts were issued by the dog.
Supposed the dog searched 10,000 vehicles and issued 85 alerts 26% of which appeared correct. What would you say then?
Also the dog may be accurately picking up the traces of drugs, but the drugs are not there now. Those other 74% might have transported drugs before the dog was used, leaving a trace for the dog to key on, but no current drugs for the officers to find.
So what are the penalties / taxes on the obscured plate and tinted windows?
I think your front passenger tire is a little low on air.
You in a whollotta trouble, boy !!
You put the dog’s training record under the microscope since you can’t ask him questions.
I had a friend who was pulled over in Louisiana and spent three hours on the side of the road, all because he changed lanes without using his blinker - *supposedly*.
He and his wife were driving to their family for Thanksgiving in a rental car when a county sheriff pulled him over. He knew he wasn’t speeding and he had his cruise control on, he also knows he never changed lanes for at least 30 miles before he saw the cop in the mirror.
The cop asked to search his car, he told him to get bent, so they made him wait until the unit arrived with the dog. He watched the dog and it didn’t do a damn thing, but the cop said he had a hit, so they searched the entire car and all their luggage. They then used the excuse that it was a rental car that must have been used to transport dope before they got it and sent them on their way..
He was sure it was just them hating to be told “NO” that caused all the problems and they used the dog as an excuse.
This is the reason I have a problem with it too. The dog is just a tool, using their noses as a sensor. If the police had “x-ray” glasses (or some external tech tool) should they be allowed to arbitrarily use that “tool” to search anything at any time?
...no, they shouldn’t. I don’t see the difference between that and a dog. There are reasons why we have laws against illegal search and seizure, using dogs without already having “reasonable suspicion” is just an end-around of the law.
Here is a story that supports the contention that
drug dogs are not reliable as there use is being
perverted by their handlers.....and it’s other
badgemonkeys making that claim.
http://www.8newsnow.com/story/18886948/2012/06/26/nhp-troopers-sue-department-over-k-9-program
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