Thorough recordkeeping makes K-9 searches legally defensible

According to a Police Magazine survey, nearly 50 percent of police departments use K-9 teams. Due to the nature of their assignments—which can include tracking suspects, detecting narcotics, investigating suspected arson, and assisting in search-and-rescue efforts—these dogs and their handlers go through some of the most rigorous training of any first responders.

When one of these specially-trained dogs alerts officers to the presence of contraband or tracks the scent of a suspect, police may be given probable cause to conduct a full search. If that search reveals something incriminating, a defendant may try to suppress the evidence by attacking the grounds for conducting the search. Since the reliability of a K-9 alert contributes directly to whether probable cause exists, these cases often explore the quality of training and training records to depths seldom reached in human-only cases.

This body of law provides public safety professionals uniquely clear guidance on what constitutes best training practices for K-9 teams.

Legal defensibility requires accurate records
Though standards vary by jurisdiction, a consistent theme across the country is that having accurate training records is just as important for establishing reliability as the content of the training itself. Recordkeeping is more important than performance in the field.

Inadequate training records can reverse a criminal conviction or change the outcome of a civil suit. In State v. Oliphant, for instance, a convenience store was robbed at gunpoint, and a suspect was witnessed leaving the area. Police officers, informed of the suspect’s description, pulled over the car for a traffic stop and discovered a weapon. Five and a half hours later, two dogs were given the defendant’s sock to sniff. The dogs tracked the path that the suspect took from the convenience store to his alleged getaway car.

The Louisiana Supreme Court ruled that this evidence should not have been admitted at trial because the dogs were not certified. The animals never received any training for tracking, and the handlers had no records concerning the dogs’ use. The “complete lack of verifiable information relating to the dogs’ training, experience, and abilities” resulted in the granting of a retrial to the defendant.

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This hierarchy was further exemplified by two recent cases in Oregon.

The first, State v. Foster, involved a dog with a verifiable 66 percent alert accuracy in the field. This K-9 had been subjected to a thorough training regimen, successfully completing a certification test and continuing training thereafter. While acknowledging that the accuracy rate left much room for improvement, the Oregon Supreme Court recognized that false positives could be attributable to trace amounts of drugs, leftover scents, or well-hidden contraband. More important was the dog’s performance in controlled conditions. Accordingly, because the department possessed these records, the probable cause for the resulting search was upheld. This case is not unique, as the Seventh Circuit Court of Appeals upheld a 62 percent accuracy rate a decade before.

Conversely, in State v. Farmer, the dog reportedly had 100 percent accuracy in the field, but no records were kept recording false positives or the number of searches conducted. Holding that “the type of training, testing, and certification matters,” and that the department’s records thereof were insufficient, the appellate court reversed the trial court’s decision to admit the evidence obtained from the resulting search. Since that evidence was essential to the conviction, the court had no choice but to grant a retrial to the defendant.

Certified dogs are reliable dogs
Underscoring the benefits of independently-reviewed training, courts at every level have recognized that K-9 dogs are reliable enough to give officers probable cause to search. While merely designating a K-9 as “certified” does not provide much detail about the quality or substance of training, that word alone can create a rebuttable presumption of reliability.

In Florida v. Harris, a motorist was pulled over by the same officer-canine combination on two separate occasions, and in both instances, the dog alerted the presence of narcotics even though none were found in a subsequent search. The defendant argued that this is not a surprise, given that up to 80 percent of K-9 alerts are false positives. The court below held that, absent a demonstration of the dog’s accuracy in the field, a K-9 alert to narcotics could not provide probable cause for a search.

In a unanimous ruling, however, the Supreme Court of the United States stated that “no more for dogs than for [humans] is such an inflexible checklist the way to prove reliability.” Stressing the importance of certified training, it further provided that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert” such as when “a bona fide organization has certified a dog after testing.”

The Court further added that “even in the absence of formal certification, [reliability may be demonstrated] if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.”

Certification lends instant credibility to K-9’s, handlers, and first responders alike. Non-certified personnel and training, though, can still be legally defensible if departments are otherwise able to demonstrate the quality of the training. Regardless, departments must maintain accurate training records or risk having their searches, evidence and cases dropped by courts. As the average cost of prosecuting the most severe felonies nears $400,000, society simply cannot afford to have inadequate training or records, regardless of whether cases are eventually won on remand.

By investing in certified training and placing greater emphasis on training records, departments can ensure that their substantial efforts are recognized at every stage of the legal process.

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