Probably and Probably Not Probable Cause

2 Legitimate and 2 Illegitimate Interior Vehicle Searches Based Upon Exterior Police K-9 Behavior

CPT provided expert witness consultation in 4 motions to suppress involving K9 searches of a motor vehicle.

In the first case, the client (Defendant) was pulled over in Dekalb County ostensibly for crossing the solid white line between his lane and the right shoulder. Nevertheless, subpoenaed dashboard video indicated the Defendant’s car was targeted, possibly from an informant’s tip. After questioning the client outside the vehicle, with the client talking articulately and with proper diction and not appearing physically to be under the influence of alcohol or narcotics, the police officer stated the client’s actions were “erratic,” which provided reasonable articulable suspicion to commence an exterior search of the vehicle with his male, K-9 Belgian Malinois. The dog initially was excited and distracted upon leaving the police cruiser, which prompted the officer to circle the vehicle a second time. During the second revolution the K-9 dog remained focused, despite a female Malinois in estrus present in the back seat of the client’s vehicle, the handler did not unduly influence the dog’s work, and the dog clearly performed its trained alert behavior, a down stay, upon reaching the driver’s side rear of the client’s pickup truck. The subsequent interior vehicle search quickly located 2 kilos of methamphetamine.

The Defendant’s attorney contracted with CPT to review the dashboard video and pertinent written documentation (police reports, training records of the dog, statutory law, case law) to determine whether the dog produced a valid alert behavior and whether the dog’s behavior appeared influenced by the presence of the female dog in heat. A Motion to Suppress based upon the illegitimacy of the officer’s or dog’s behavior would have been a powerful defense tool. Nevertheless, CPT responded that the evidence did not support such a motion, at least a motion emanating from the action of the dog’s exterior search, although an action based on the officer’s conclusion of erratic behavior prior to the search may be warranted.

probably-pic1
In the second case, on a 91-degree August day 2 clients (Defendants) were pulled over in Coweta County, ostensibly for driving their Florida registered pickup truck with window tinting that exceeded Georgia limits. Subpoenaed dashboard video showed the officer proceeded by requesting that the driver produce his license, registration, and insurance card. After asking a backup officer to input the data into a dashboard computer, the officer asked the passenger to exit the vehicle for a “field interview” that focused on his origin and destination. The passenger responded cooperatively. The officer next demanded the passenger move away from the vehicle and alongside the backup officer. He then asked the driver to exit the vehicle and conducted a similar field interview behind the rear hatch of the pickup truck. Meanwhile, neither officer produced a meter verifying window tint levels. During the interrogation, the driver responded with some answers slightly different from those of the passenger. The officer stated the disparity in responses and the lack of cooperation of the driver provided reasonable articulable suspicion to employ his male, K-9 Belgian Malinois in an exterior vehicle search.When first removing the dog from the police cruiser, the officer conveniently had the dog’s reward toy, a ball, roll underneath the hatch of the Defendants’ truck. He then asked the Driver to retrieve the ball, whereupon the driver handed the ball to the second officer. Once leashing the dog and removing the dog from the cruiser, the officer proceeded to verbally excite the dog with enthusiastic praise and physically excite the dog with playful slaps around the dog’s rib cage. He then commenced the search, whereupon throughout the process he pointed with his hand where he wanted the dog to move amidst the vehicle, he administered leash corrections when the dog lost focus or didn’t adhere to instruction, and he vocally excited the dog. The search started at the rear passenger wheel well, progressed to the front of the vehicle, and then moved to the driver’s side. When the dog reached the rear wheel well the dog went underneath, where the ball was previously located, then promptly exited. The dog then was guided by the handler to the rear of the vehicle. When the dog didn’t show any interest in working, the officer administered a hard physical leash correction that again directed the dog underneath the bed.

Once moving underneath the bed the dog quickly exited without ever sitting, the dog’s lone trained alert behavior, as indicated by expert review of 6-months of training logs. Nevertheless, the officer stated the dog’s behavior clearly indicated there was narcotics in the vehicle, which provided him probable cause to initiate an interior search. The officer started his interior search in the covered bed of the pickup, rather than the cab. Once opening the hatch and sliding the bed cover, he ignored multiple suitcases to immediately open a garbage bag containing 24 pounds of marijuana, whereupon he placed the clients under arrest for narcotics trafficking.

The Defendants’ attorneys contracted with CPT to assist with strategy and to testify during a Motion to Suppress. CPT reviewed dashboard video, police reports, and training logs and conducted research regarding case law, handler and canine conduct during narcotics searches, preferred police operating protocols, the effects of social handler influence on dog behavior, videos of handlers performing proper and improper searches, and videos of dogs alerting clearly and properly during searches. CPT also requested production of the policy manual for the police jurisdiction; a deposition or detailed statement from the State’s expert regarding the major points of his planned testimony; and formal logs regarding all interactions between the officer and citizen drivers, to determine the percentage of drivers he pulled over where he used his dog, the percentage of times he stated the dog alerted, and the percentage of interior searches that resulted in the acquisition of illegal narcotics.

In addition, the CPT expert used his years in the semiconductor industry to recommended the defense team add an expert chemist skilled in gas chromatography. The chemist could then investigate the evidence bags, as mylar is impermeable to nitrogen and mostly impermeable to oxygen, the major constituents of atmospheric air. Moreover, vacuum sealing the bags would further diminish the movement of volatile organic compounds (VOCs) and a 91-degree ambient temperature would encourage upward air flow, rather than an air plume underneath the pickup bed. However, there was insufficient time before the scheduled hearing to fulfill the latter expert request.

During the hearing, the CPT expert was qualified by the judge after voir dire. He then testified the search was highly biased by a number of confounds:

  1. the handler inappropriately allowed the scent of the ball to freshly gather underneath the driver-side rear wheel well, which presented ambiguity as to whether it was the smell of narcotics or the smell of the ball that prompted the dog to briefly move underneath the well.
  2. The handler’s physical pointing and leading biased the dog, as ideally the dog would work independent of handler direction or cues, where the scent or lack thereof would guide the dog.
  3. The handler’s verbal encouragement biased the dog, as ideally the dog would focus principally on task, not on handler approval or disapproval.
  4. The significant leash correction that forcibly moved the dog underneath the bed biased the dog’s behavior, as it created question whether any subsequent action was to avoid punishment, rather than an alert to a detected target odor.
  5. The increase in the dog’s respiration and physical activity was likely due to handler encouragement, the sight and smell of the ball, and the heat, not the detection of a target odor.
  6. The dog moving underneath the wheel well initially, in addition to the scent of the ball, may have been to escape the heat.
  7. The dog’s training sessions consistently used a similar amount of contraband. Very low or very high quantities of odor may be beneath or beyond the dog’s threshold, whereby the dog does not physically or cognitively process the VOC as a target odor. Thus, a dog trained to to detect an ounce or less of marijuana may not discern that 24 lbs. of marijuana is a target odor.
  8. And most significantly, in every training session reviewed over the recent 6-month period the dog had one recognized alert behavior, sit, and during the client traffic stop the dog never sat. Yet, the handler abruptly interrupted the exterior search to announce the dog had alerted to the presence of narcotics.

To buttress his opinions, the CPT expert witness cited peer reviewed fMRI research he conducted on canine olfaction under the aegis of the Office of Naval Research. He also cited a study conducted at the UC Davis Veterinary School, where the research concluded that police K9s are highly influenced by incidental and purposeful handler cues. In the research, police handlers were provided misinformation that drugs were planted wherever there was a red card. Subsequently, the dogs communicated false-positive alerts over 80% of the time. In addition, the expert produced videos of well trained dogs, handled in an unbiased manner, in which the dogs clearly produced positive indications, in sharp contrast to the K9 relevant to the case. The CPT expert believed (and still believes) strongly that his arguments were valid and persuasive.

Nevertheless, the State expert, who also was the person who trained and certified the dog and handler, testified that the POST protocol in which the dog was certified allowed for a number of indication behaviors that can be effectively interpreted by educated handlers.

The preceding was supported by precedent from the 2013 US Supreme Court decision in Florida v. Harris. Therefore, although sit may be the preferred alert behavior, or the trained “conditioned response,” there are a myriad of other behaviors that may indicate the dog has detected a target odor. The alternative behaviors include an increase in respiration and/or physical activity, which a perceptive and educated handler will accurately determine is an indication, even in the absence of the conditioned response. Moreover, in the opinion of the judge, the subsequent acquisition of a substantial quantity of illegal narcotics verified such on the day in question.

Although the CPT expert believes the State expert’s claim that the dog’s increase in respiration constituted a valid alert is a huge stretch of the truth, the Defense case always had four major obstacles: 1) the seizure of a large quantity of marijuana, 2) a conflict of interest regarding the State’s objective to imprison drug dealers, 3) a conflict of interest regarding civil asset forfeiture laws that financially enrich the State, and 4) the tendency for judges to provide greater credence to law enforcement officers and their experts over persons assisting the accused. Regardless, perhaps with a judge more open-minded to the application of 4th and 14th Amendment rights, more willing to acknowledge the officer’s multiple inappropriate actions, and more willing to evaluate science over emotion, the outcome would have been different.

probably-pic1
In the third case, based upon the observation of what GBI agents believed was a drug deal at a Gwinnett County Walmart, the Georgia State Patrol initiated a traffic stop. The stated premise behind the stop was that an automatic license plate reader (ALPR) communicated that the North Carolina vehicle was not currently insured. After conducting field interviews of the 3 passengers and a personal search for weapons, a K9 officer led his male German Shepherd Dog around the exterior of the vehicle. The dog was disinterested, distracted, and appeared confused. To compensate, the officer repeatedly gave the dog breaks, administered high-pitched verbal encouragement, implemented leash corrections toward the car, and pointed at different spots on the car.
At 17:21 of the dashboard cam the most controversial action of the exterior search occurred. The handler blatantly used his fingers to increase the opening of the front passenger door, which was not fully closed by the officer after he requested the exit of the front seat passenger. Thus, the door was not ajar through the action of the passenger, but through the apparently conscious act of the officer.

At 17:23, through the open door the dog entered the front passenger area of the car. The dog remained inside the vehicle until 17:30. The dog then remained stationary outside the front passenger door. At 17:38, with the dog again looking disinterested and distracted, the handler says “Where is it?” while pointing to the door with his right hand, bending at the waist, and repeatedly nodding his head. He then repeated the words “Where is it?” while continuing to saliently nod his head while bending from the waist. At 17:41 the dog hesitantly began to sit. At 17:42 the dog completed his sit. At 17:44 the handler praised and released the dog, whereupon he concluded the exterior search. A subsequent interior search found over 1 pound of methamphetamine and a firearm.

Since the K9 officer appeared to base probable cause upon the dog’s sit behavior and since the sit behavior occurred immediately post the dog’s entrance into the vehicle- an entrance facilitated by 2 direct actions of the officer- there were 2 key questions related to the motion to suppress. First, was the dog’s entrance into the vehicle legal? Second, did the repeated trips around the vehicle and seemingly purposeful verbal, bending, and head nod prompts inappropriately cue the dog?

In regard to the first question, the CPT expert’s research cited multiple relevant cases, including Felders v. Malcom (US Court of Appeals 10th Circuit 2014), US v Vazquez (10th Circuit 2009), US v. Winningham (10th Circuit 1998), and US v. Pierce (3rd Circuit 2010). The opinion of Felders v. Malcom states, “facilitating a dog’s entry into a car prior to establishing probable cause violates the Fourth Amendment.” In Vazquez the court states it is a “constitutional violation” when a K9 dog’s leap into a car is “orchestrated,” rather than “instinctual.” The opinion in Pierce states, “It is a Fourth Amendment violation for a narcotics dog to jump into a car because of something the police did, like training the dog to jump into cars as part of the search or facilitating or encouraging the jump.”

Regarding the second question, CPT recommended the attorney: 1) ask the handler in court to repeat the verbal and physical behaviors amidst the dog and observe whether the dog sits in the absence of a target odor; 2) obtain video of previous traffic stops so the expert may determine the reliability of the dog sitting after receiving similar verbal and/or physical communications from the handler; 3) obtain video of previous traffic stops so the expert may determine whether the dog sat only or predominantly after multiple trips around the vehicle or after receiving similar handler cues; and 4) obtain video of previous traffic stops so the expert may determine whether the handler pressured or fatigued the dog by walking around the vehicle until the dog sat. In addition, the CPT expert produced video of several CPT Trainers in less than 5 minutes educating dogs to automatically sit in response to the identical cues produced by the K9 handler.

Due to a limited budget for this appointed federal case and due to a schedule conflict, the CPT expert was unavailable to testify. Nevertheless, the above strategies were implemented in the attorney’s brief to the court prior to the date of the hearing.

probably-pic1
In the fourth case, in Omaha, NE, uniformed police officers initiated an interrogation of 3 persons parked legally alongside a residential road. The time was 3 am. The 3 middle-age vehicle occupants were minority. The 2 officers were white. The officers commenced the interview despite the vehicle occupants not committing a traffic violation or otherwise openly committing an illegal act.

Upon approaching the vehicle, one officer asked for the driver’s documentation. Meanwhile, the other officer asked the rear passenger occupant to exit the vehicle so he could commence a field interview. During the interview the person bolted and escaped. The officers then handcuffed and detained the front seat occupants.

Despite remaining cooperative throughout the process, they were forced to remain handcuffed in the rear of separate police cruisers while waiting more than 50 minutes for a K9 officer to arrive. Upon arrival to the scene, the K9 officer received a background from the uniformed officer. He then promptly commenced an exterior search with his Belgian Malinois. Upon the second revolution around the vehicle the dog barked. A subsequent interior search found phencyclidine (PCP) and rolling papers.

In consideration of a possible motion to suppress, CPT was contracted to conduct a thorough analysis of the behavior of the K9 handler and dog. CPT reviewed multiple body cams and dash cams, read multiple police reports, examined 6 months of training logs, and evaluated 6 months of field logs. The training logs showed appropriate documentation, reliable behavior, proper handling, multiple training environments, training protocols both on and off-leash, and target samples varying in quantity, packaging, and location. The training logs also clearly communicated that the dog’s conditioned response was barking, which is not as common as a sit or down, but is a viable alert behavior. The videos showed a dog handled correctly, without undue handler influence. The dog appeared to alert because it detected a target odor, not because it was influenced by human-dog social communication or handler pressure. Moreover, to satisfy the question of whether the dog was reliable in the field and whether the K9 officer was prone to racial profiling, CPT completed a statistical analysis of field stops. With over 40 data points, the dog’s positive predictive value (PPV) was 82%, meaning that only 18% of the dog’s alerts were false-positives. Furthermore, the racial constituency of the drivers searched paralleled the demographics of the community and the majority of false-positives occurred with white drivers.

Therefore, CPT informed the attorney that there may be an action related to Terry v. Ohio (US Supreme Court 1968) arising from an illegal detainment of the vehicle occupants without reasonable articulable suspicion. Similarly, there may be an action related to Rodriguez v. United States (US Supreme Court 2015) originating from the 50-minute wait for the K9 dog, especially since the 2 detained persons were cooperative and had not committed a traffic or criminal violation in the presence of the officers. The rear-seat passenger fleeing does not make them guilty by association. However, there was not a valid action related to improprieties by the K9 officer and dog, as they had undertaken their job tasks responsibly.

When summarizing the 4 referenced cases we wish attorneys to realize that despite our distaste for the “drug war,” CPT will provide a thorough, scientific, objective analysis that should hold weight in court. We represent the truth. Therefore, although to date all our motion to suppress work has been for defense counsel, we will provide equally professional and impartial work product for the prosecution.