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But that supposition is impossible to confirm, and it is not even clear what Condon means by “recent contact.” More to the point, the likelihood of actually finding evidence of a crime is the relevant consideration (in Australia as well as the United States) in determining when police may search someone, meaning a dog’s alert can justify a search only if it indicates that drugs are currently present.
‘They Can Say Whatever They Want to Say’
The issue of what counts as a false alarm is central to Florida v. Harris. The defendant, Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the Liberty County Sheriff’s Office, once for an expired tag and once for a malfunctioning brake light. On both occasions, after Harris declined to let Wheetley search his pickup truck, the officer walked a German shepherd named Aldo around the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited and sitting down in front of the driver’s side door handle. And on both occasions, Wheetley searched the truck without finding any substance that Aldo was trained to detect. But during one of the stops, Wheetley found 200 pseudoephedrine tablets, along with other chemicals and supplies used to make methamphetamine, which led to Harris’ arrest. Harris pleaded guilty to possession of a listed chemical with the intent to unlawfully manufacture a controlled substance, a second-degree felony punishable by up to 15 years in prison, but reserved the right to challenge the legality of Wheetley’s search.
Since Wheetley did not find any illegal drugs in the truck and Aldo is not trained to detect pseudoephedrine, what are we to make of the alert Wheetley reported? He speculated that Aldo reacted to traces of meth left by Harris’ hand, which might be true. Then again, Aldo might have smelled drug residue left by someone else—perhaps, as Harris’ lawyer suggested, an addict looking for unlocked vehicles with stuff to steal. The dog’s alert does not tell us who left the odor, or even which drug it was. Police dogs generally are trained to detect several substances, and they alert the same way to all of them.
Russ Jones, who worked as a K-9 officer and narcotics detective in San Jose, California, for 10 years and is now a member of Law Enforcement Against Prohibition, notes that the drug-residue excuse is a double-edged sword for police, because it undermines the case for using dog alerts to justify searches. “You’re telling me that my car can be searched because the guy who changed the tires at the tire shop smokes marijuana, and his hands tightened up the lug nuts and put the hub cap back on?” Jones says. “Suppose the UPS guy uses amphetamine or cocaine, and he drops off a book that I ordered from Amazon.com. If a dog smells it, that gives you the right to search my home?”
Traces of drugs on the outside of Harris’ truck are not the only possible explanation for the alert Wheetley reported. Perhaps Wheetley, who said Harris seemed nervous and restless, was so sure the guy was up to no good that he misinterpreted Aldo’s behavior. If a dog handler “wants to see the alert,” says Jones, “he sees it.”
Alternatively, Jones says, “because [the handler] feels the guy is guilty, he just says the dog alerted and uses that as a pretext to search.” Myers recalls a case on which he worked as a defense consultant where an officer claimed a dog alerted as he walked it around a suspect’s car. In the dash-cam video of the stop, the dog was not visible, but the officer was. “When I had him questioned about how long it took the dog to alert, he said a few seconds,” Myers says. “So there should have been at least a two-second pause in front of the car. Nope. There was no pause.”
Jeff Weiner, a prominent Florida defense attorney who frequently deals with drug-sniffing dogs, says he commonly sees videos in which “someone will stand in front so you can’t see the dog, and then you’ll hear them say, ‘Oh, the dog just alerted.’ And then they’ll step away.” Weiner adds that many police departments have stopped recording K-9 teams at work “because they realized that the dogs don’t alert when the cops say they alert.” Without video, he says, “they can say whatever they want to say, and there’s no way to challenge it.”
Assuming Aldo really did alert to Harris’ truck, he might have been reacting to Wheetley’s suspicions. “If someone is acting quite twitchy and nervous,” says Myers, “that evokes suspicion on the part of the handler, which evokes certain behaviors that may cause the dog to alert.…I’ve done frame-by-frame analysis of video tapes, and it’s interesting when the handler stops before the dog does. You think it might have been a cue—not necessarily intentional.”
A 2011 study led by the University of California at Davis neurologist Lisa Lit, reported in the journal Animal Cognition, shows how powerful a handler’s cuing of his dog can be. Lit and her colleagues had 18 handlers walk their police dogs through four rooms where they were told drug or explosive scents might be hidden but where in fact there were no target substances to be found. Each team went through each room twice, for a total of 144 sweeps, and generated 225 false alerts. The alerts occurred most frequently near markers that the handlers were told indicated the presence of scents; they were even more likely at those spots than at unmarked locations where the researchers had hidden Slim Jims and new tennis balls as distractions. “Human more than dog influences affected alert locations,” Lit and her colleagues concluded. “This confirms that handler beliefs affect outcomes of scent detection dog deployments.”
‘Searching for Ham Sandwiches’
A few of the handlers in the Lit study admitted they had intentionally pointed their dogs to the marked locations. But for the most part they seem to have communicated their expectations subconsciously, as observers did with Clever Hans, the famous German horse who supposedly could answer arithmetic questions by tapping his hoof. Although it has been more than a century since the psychologist Oskar Pfungst demonstrated that Clever Hans was reacting to the body language of his trainer and audience, the lessons of that episode do not seem to have penetrated most police departments.
Myers and Jones say dogs should be tested in double-blind situations, where neither the handler nor the observer verifying alerts knows whether or where drugs have been hidden. But such tests are the exception rather than the rule. In weekly maintenance training, Myers says, the handler likewise should not know where the drugs are. But “typically if a cop says, ‘I train the dog every week,’ he’s hiding things and then going around and finding the things he’s hidden. Putting something out, you as the handler, then taking the dog through, you are going to seriously skew the training; you’re going to cue. You can’t help it; you know exactly where the damned thing is.”
Even when a handler does not know exactly where the drugs are, his behavior can encourage the dog to alert regardless of what the animal actually smells. Jones says bad handling practices he commonly sees as a consultant include excessive verbal encouragement (“Go find it, boy!”) and giving rewards (praise, toys, dog treats) for alerts whether or not they are accurate. In a 2011 traffic stop that resulted in a fruitless car search and provoked a lawsuit, Collinsville, Illinois, police officer Michael Reichert walked his German shepherd, Macho, around a car and claimed he alerted in the front. Neither Reichert nor the dog can be seen on the dash-cam video at that point, but Reichert can be heard repeatedly urging Macho on and praising him lavishly.
Dogs that are rewarded for unconfirmed alerts may begin responding to the wrong stimuli. A dog “might just be interested in something, which could be seen as a kind of alert by the handler,” says Myers, “so he rewards him for it. And pretty soon he’s going to be searching for ham sandwiches.”