On January, 18, 2019, CPT’s Mark Spivak, a noted expert witness on canine behavior completed a course entitled, “K9 Handler Intensive Training,” held at the Georgia Public Safety Training Center in Forsyth, GA. The course, sponsored by Animal Law Source and the Prosecuting Attorneys Council of Georgia, focused on specialized legal issues related to the use of police detection canines. Key subjects included:
• search and seizure laws,
• federal and state appellate cases relevant to search and seizure constitutional law,
• presenting evidence in a courtroom environment,
• winning strategies when preparing to testify in motions to suppress,
• presenting canine reaction evidence, and
• police K9 animal protection laws.
The course was intended principally for police K9 handlers, prosecutors, and judges. However, Mark’s role in criminal cases is usually for the defense, especially to evaluate and opine regarding the behavior of police K9 handlers and dogs during motions to suppress. Mark also functions as an expert in civil cases on the side of the plaintiff when a police apprehension dog was used unnecessarily, with unreasonable force, or with a lack of control, whereby the accused or an innocent bystander suffered unreasonable injury.
Speakers included:
• Sergeant Wayne Fisher, K9 Unit Trainer, Warner Robins Police Department;
• Claudine Wilkins, Attorney and Founder of Animal Law Source;
• Kimberly S. Schwartz, Senior District Attorney, Chattahoochee Judicial Circuit;
• Christopher C. Edwards, Chief Judge, Griffin Judicial Circuit; and
• Stacey S. Jackson, Attorney at Law
Mr. Fisher’s 4-hour presentation covered benefits of using narcotics detection dogs, the olfactory abilities of the dogs, theories of scent detection, types of alerts, properly deploying K9 dogs, reliability of K9 detection dogs, certifications for K9 dogs and handlers, legal considerations, and pertinent state and federal court rulings.
Ms. Wilkin’s presentation focused on Tanya’s Law, a recent Georgia statute (OCGA 16-11-107) that establishes criminal penalties for persons who harm a law enforcement dog.
Ms. Schwartz’s 1.5-hour presentation covered effective presentation of evidence in court, direct and cross-examination, proper handling of exhibits, and making a good appellate record.
The course concluded with a 2-hour mock motion to suppress, featuring Judge Edwards, Mr. Jackson, Ms. Schwartz, and Mr. Fisher. The case was based on an actual traffic stop where a K9 dog’s exterior search of a vehicle produced an alert to narcotics odor, which provided probable cause for an interior search. However, the subsequent interior search of the vehicle failed to find narcotics, but did produce an illegal firearm.
The defense attorney, wishing to exculpate his client from the charge of illegal possession of a firearm, filed a motion to suppress. The case included recreated body cam video and thorough examination and cross-examination of Mr. Fisher.
Upon the conclusion of the judge’s ruling, which allowed the evidence, there was an analysis of the rationale behind the decision. In the opinion of Judge Edwards and Ms. Schwartz the most vital factor relevant to prosecutorial success is the preparation, competence, and credibility of the handler’s and the expert’s testimony. Moreover, in accordance with the commonly cited case of Florida v. Harris, the credibility of the handler and dog via possessing appropriate certifications is also key.
As explained by Judge Edwards, the certifications confirm that the dog is a credible witness, whereby his alert provides probable cause for an interior search. Furthermore, police may seize criminal evidence in plain view during the normal operation of the search, even if the evidence is unrelated to the original reason for the search.
Mr. Fisher then communicated his belief that the lack of tangible drug evidence from the interior search is not proof that drugs were not present in the vehicle at the time or recently, whereby the dog’s credibility might be damaged. Rather, the dog may have detected residual odor from particulate matter too small for the officer’s eyes to detect or lingering odor from narcotics that were recently removed from the vehicle.
Mr. Fisher’s apocryphal statements present a specious rebuttal for false-positive indications. When held to scientific and statistical scrutiny, his opinion does not hold water.
Studies from UC Davis, Illinois, and Australia provide convincing evidence that police dogs are often highly inaccurate in real-time deployments and highly subject to handler influence that may supersede task focus. In addition, field data related to the specific dog/handler team, including the training logs, percentage of positive alerts, and percentage of positive alerts that resulted in the seizure of intended contraband, may damage the credibility of a dog’s reliability, despite its certifications. Similarly, dashboard or bodycam video showing conspicuous handler cueing may indicate undue human influence or bias that affected the dog’s behavior. Lastly, the defense should subpoena the officer’s records for all traffic stops, including number of stops, number of stops that included an exterior search, and number of exterior searches that resulted in alerts by the dog, and then cross tabulate the data by the race of the driver, as the case may be dismissed if statistical compilation can provide strong evidence of racial profiling.
For completing the K9 Handler Intensive Training course Mark received 8 Peace Officer Standards and Training Council (POST) credit hours. Mark believes what he learned in the course has value in further empowering his expert work when working with defense attorneys during motions to suppress. As Chinese general, military strategist, and philosopher Sun Tzu said, “If you know the enemy and know yourself, you need not fear the result of a hundred battles.” By learning more about the strategies of the prosecution Mark gained highly pertinent knowledge that should aid in winning future legal battles.
