Tulsa Attorney BlogOklahoma Drug Dog Myth #3: Drug K9s Are Highly Trained and Accurate

False Positives and Subjective Alerts


Tulsa criminal defense lawyerVideo Transcribed: Drug Dog Myths Number Three. Drug dogs are highly trained and accurate. I’m James Wirth, an attorney in Tulsa. We’re doing a series related to drug dogs and the myths associated with them, this myth being that they are highly trained and accurate, and specifically this video deals with subjective and contradictory alerts.

K9 and their handlers do train together and they have to pass some certain threshold to get out in the field, but they may not be trained the way that you think that they’re trained and they may not be as highly trained and competent as the general public would believe. Canine dogs and drug dogs in Oklahoma are generally trained to alert on four different substances, marijuana, methamphetamine, heroin, and cocaine, so the dog is trained to identify those, smell those, and then make some sort of alert.

Now, if we really wanted the accuracy and we really wanted to test how accurate the dogs were, perhaps we would have a different alert based on the different things they’re identifying. So if they smell heroin, they do some certain action. If they smell cocaine, they do another action. But they don’t do that. No matter what they’re smelling that they think is supposed to be alert, it doesn’t have a different alert for that, so they can’t communicate that to the officer. What this means is they’ve set it up so there’s no way in the field to determine the accuracy of the dog.

If the dog alerts and no narcotics are found, then they’re going to say that the narcotics were previously in there or it’s trace amounts on a dollar bill, or it’s somebody who was in the vehicle previously. Maybe they were smoking some marijuana, they only had it in their clothes, or they work at a dispensary and they had it on their clothes. Whatever the case may be, if the dog alerts but nothing is found as contraband in the vehicle, they’re not going to say that’s a false positive. They’re going to say that the dog accurately smelled something in trace amounts that we can’t now find.

So, what if they had the dogs trained so that they identified the particular type of drug? Well, that’s a problem because then if the dog falsely alerts to heroin and they find cocaine, that’s a case that they charge. That’s a case that gets oversight, defense attorneys involved, preliminary hearings put on where judges have to make determinations and then we, the public, defense bar, and judges get to see these dogs are not accurate. But if they set it up that the alert’s always the same, when the drug dog falsely alerts, there’s no court case for that. There’s no oversight.

When the drug dog does alert and does find something, then there is a court case, but it always appears to be accurate because they alerted and something was found. So by throwing away all of the false positives and only focusing on the cases where they’re actually prosecuting, there’s no way to determine if there is reliability because there’s only one alert rather than an alert for each particular item. So that’s the first thing is that they don’t tell you what they’re alerting for in order to prevent oversight on that.

The other thing is that there’s no clear basis for alerts; it’s very subjective. They don’t talk about that. So, if we’ve got a highly trained dog, you would have it alert in a very specific way. So it would smell something and it would sit down or it’d bark three times or whatever, something very specific. But what we see when we’re cross-examining handlers is that they’re trained to alert a lot of different ways, sometimes in contradictory ways, and certainly in subjective ways to where it’s the handler testifying whether it’s alert and it’s unclear, even if you’re watching a video of the dog doing the stop, which we’ve seen many of those videos and many times we’re not seeing any alerts at all. We’re seeing normal dog behavior.

But we recently had a prelim and we hear things like this. An alert means a change in behavior. Any change in behavior by the dog, they testify that could potentially be alert. So they talk about if the ears are pointing, if the dog is chambering, meaning taking deep breaths, if, they call it bracket sniffing, moving around, getting different scents, those could all be alerts. And then we have contradictory ones.

Just had an officer testify, if the dog is moving towards ascent, then that is an indication that they are smelling narcotics. But then he later testified, if the dog is moving away from a cent, then that means that it’s a large number of narcotics and they’re moving away. So, if the dog moves toward it, it’s positive for a small number of narcotics, if it moves away, positive for a large number of narcotics. He successfully set up a catch-22. No matter what the dog does, goes forward or away, he says that is a positive alert for narcotics to give him probable cause to search a vehicle. Then, similarly, if the dog lowers his head, then that is alert. But also in this same case, he testified that if the dog stares, sits and stares, stands and stairs, that is alert. So if the dog has his head up staring, it’s an alert. The dog puts his dog down, not staring, that’s an alert.

Also, we’ve seen, and this is in a different case where sitting down is alert, but also jumping up on a vehicle is an alert, contradictory. No matter what, in a lot of these cases, based on the testimony that we get, there are so many behaviors that are subjective to the trainer to determine whether it’s an alert. Anything can be an alert that the officer potentially wants it to be alert and there’s very little oversight on this. And it’s not just that different dogs are trained differently to alert. This is one dog, two dogs, giving examples here, that were trained potentially to alert in all these different ways. Any change in behavior can potentially be alert to a handler. So, I wouldn’t call that highly trained and I would not call that accurate, and I think most people believe that there are accurate, distinct alerts where anybody watching a video would note, oh, the dog alerted there.

That is not the case. It is very subjective, and that’s why it is a myth that canines are highly trained in accuracy. In actuality, the purpose of the dog is to get probable cause. That is what they are trained to do when they’re initially trained and they get out, they’re tested, but they’re not tested in the field. They get a reward every time they alert, and, therefore, it incentivizes them to alert not to be accurate. And there’s no oversight over false positives because we only see the cases where narcotics are found. Those are the only ones that are charged, the only ones where people hire attorneys.

So if you’re dealing with a case like this, you’re going to want to talk to an attorney privately and confidentially to get legal advice. If you’d like to schedule that with a drug crime lawyer in Oklahoma at my office, you go online to makelaweasy.com.

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