Tulsa Attorney BlogOklahoma Drug Dog Myth #2: There Are No False Positives

Drug Dog Accuracy Is Not Always Black and White


Oklahoma drug crimes lawyerVideo Transcribed: Drug dog myth number two, there are no false positives. I’m Oklahoma attorney, James Wirth. We are doing a series regarding myths related to K-9 units testing for drugs.

This myth is that there are no false positives. That’s something that we hear a lot when we’re dealing with these cases in court and we’re cross-examining handlers, K-9 officers, they will tell you there’s no such thing as a false positive, my drug dog is 100% accurate all the time. That’s the myth. That is what they want you to believe, and they use a little bit of fancy footwork in order to get them there.

Essentially what it means is that anytime their drug dog alerts, they search a vehicle, but they don’t find narcotics, they don’t find contraband, they don’t find an arrestable offense or a crime being committed, they don’t consider that to be a false positive. They don’t mark that. They don’t keep a record of that. They only keep records of when they actually do find contraband and they actually prosecute somebody. That’s the only time it actually gets court oversight and attorneys get involved to make sure that rights are not being violated.

If they pull somebody over and the dog, they put the dog around, they allege the dog alerts and they do a search and they don’t find anything, well, they say, “Oh, that person’s free to go.” They don’t have to hire an attorney, that doesn’t have to go to court, and they don’t keep a record of it when that happens. When you talk about those circumstances as being a false positive, they’re going to say that’s not a false positive. There’s no such thing as a false positive. Under that circumstance, the dog was actually smelling what it was trained to smell, that’s why it alerted. It was smelling methamphetamine, heroin, marijuana, and cocaine, but it was in such trace amounts there wasn’t actually contraband there.

Because they’ll say that it could be transference where somebody had the smell on them and they were in that vehicle and they left that vehicle and the smell was left behind. Or it could be that they smelled cocaine on money that was on somebody in the vehicle or in the vehicle. Studies have shown up to 90% of US currency has trace amounts of cocaine on it. The dogs can smell so well that they can smell that. Even though no crime is being committed, they’re going to be alert to it. We would say that that’s a false positive, but they will testify under oath that is not a false positive, there must have been narcotics there and it was correctly alerting to that.

There’s no oversight. There’s no one actually trying to see if that’s the case. Do we have a dog that’s completely inaccurate or do we have a dog that is smelling trace amounts of something that is not enough for humans to find and then prosecute. With no oversight over that, when there is a false positive or what we’d call a false positive, we don’t know what the accuracy of the canine units are.

What we can see is that the Chicago Tribune actually analyzed this issue related to cases in Illinois from 2007 to 2009, and they were actually looking for cases where there was an alert and nothing was found. They found only in 44% of cases where a drug dog searched and alerted did they find contraband drugs or paraphernalia. Even when the officer was wanting to do a drug dog search, which keeps in mind, they don’t do those on everybody, they only do that where they think there’s something to be found, and they ran the dog, and the dog alerted only 44% of the time, less than half the time that it finds something. The accuracy of those dogs in that case, less than 50% of the time, are they accurate?

The other thing is that these dogs are tested for accuracy when they’re trained, but there’s no follow-up for that. That can increase the chances of there being false positives. Because the officers don’t believe in a false positive, anytime in the field the dogs alert, the dog gets the treat, the treat being a toy to play with, and that’s part of the training. It reinforces the behavior, not of correctly identifying whether there are narcotics in a vehicle, but just in the alert itself because every single time it alerts, it gets a reward in the field whether there are narcotics found or not, because again, they don’t believe there’s ever such a thing as a false positive. If the dog alerted, that means there was definitely the scent, even if there wasn’t the actual contraband. This means that when they’re outside of training, the farther their go, the more likely it is that they’re going to be alerting for the purposes of getting a reward rather than actually based on the smell because there’s no reinforcement of what they learned when they went through their initial training.

That is the second myth that we’re talking about for drug dogs, there’s no such thing as a false positive. There are definitely false positives. It’s just that nobody looks at them, and nobody keeps track of them. There’s no oversight over them because they’ve been trained to say there’s no such thing as a false positive. A false positive just means that we weren’t able to find what the dog actually smelled.

If you’re dealing with the circumstances of a case related to a stop and the use of a drug dog, you’re going to want to talk to an attorney about what can be done, whether that dog actually provided legitimate probable cause, or whether there are grounds to get perhaps evidence suppressed because it was unlawfully obtained.

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