By
Steven D. Nicely
“In
United States v. GonzalezAcosta, [2] the U.S. Court
of Appeals for the Tenth Circuit refused to authorize extensive defense
requests for a drug detection dog's training records, veterinary records, alert
reports, and other miscellaneous documents. The court allowed the defense to
review only limited training records, stating: "We do not believe the
documents were relevant because the dog was certified on the day in question
and because the dog properly alerted to the presence of contraband.... Indeed,
had the dog's records indicated it had false-alerted in the past, the
defendant's ability to cross-examine would not have been enhanced because there
is no doubt it correctly alerted in this instance."
[3] (Drug
Detection Dogs Legal Considerations FBI Law Enforcement Bulletin,The, Jan, 2000
by Michael
J. Bulzomi)
This statement does not favor drug
interdiction it favors the drug smuggler. When the court does not take a team's past into account and rule on the probability of finding drugs before the physical search begins they are allowing dogs that should not be on the street to remain on the street. When a drug detector dog team has a non productive response in the field it ties up resources that could be looking for burglars, rapist, murders, and robbers. It also allows vehicles carrying durg to pass on by. Just becuse drugs were
found does not mean the dog detected and responded to them.
Based on records provided to
consultants for the defense in well over 100 hundred cases the majority of dog
teams are less than 50% accurate in field conditions. This is unacceptable.
They could easily be raised to over 80% accuracy by requiring in-depth accurate
training and utilization records, along with testing geared to determine if a
dog will only respond to the intended target odor.
The Supreme Court in Place states "a well trained dog will only reveal the presence of absence of drugs, a contraband item."
Some handlers are taught their dogs do not make mistakes. This is a mistake itself. All dog teams have deficiencies. The question that must be answered is does the deficiency inhibit safety, or the ability to provide probable cause?
Once a deficiency or problem has been identified a plan of action to correct the problem should be outlined. Theses records should define the actions required by the dog, and handler. They should note if the corrective training is directed more toward the dog
Once the deficiency or problem seems to have been corrected in training it is time to test the team.
While training, you will make
observations about the team's proficiency based upon your (human) experience, In doing so, you may make immeasurable statements concerning
how the dog (an animal), is performing. There are several types of statements
that will assist you in using the proper terminology.
An analytical statement is a
proposition that is true by definition.
Example: A dog is a panting animal.
This type of statement is one that is open to
observation. It can be verified by some
type of measuring device and can be proven to be true. An example of an
empirical statement would be "My dog will actively sniff for 10 minutes
and locate x amount of odor (A) contained (Y) when it has been present at least
˝ hour."
When recording a team’s performance avoid terms such
as poor, fair, good, or excellent. The dog, handler, or teams was either
successful the first attempt or failed. Without a clear and observable
definition of one of the above terms they are left to the interpretation of the
reader.
The following is an outline of what should be
recorded and why:
Insures the correct dog team
and handler(s) are being reviewed. There could be more than one handler
assigned to the dog. The handler could also handle more than one dog.
Persons who have placed
training aids in the past can help support the accuracy of your training
records. Also they can play a role in the team’s
performance in both training and field conditions.
Training must have a purpose.
If you are trying to correct a deficiency, the person who designed the training
can help you articulate why that particular training was necessary and how the
deficiency was eliminated. In some
cases the person who designed the training may not be qualified and as a result
problems are not recognized and become worst.
Provides an insight of the
environments the team is exposed to during training. Training environments
should mimic field conditions.
Times provide a host of
critical information. Times can be used to support probable cause in search
matters. Supervisors can use times to calculate resource deployment needs.
Patrol dog handlers need to know how long their dog will effectively search for
a suspect.
Allows the handler and trainer
to identify how long a particular amount of odor has been in a particular
package.
Provides
a starting point to evaluate effective search and performance times of a team.
Recording the time of each
correct and incorrect response can assist greatly in all training aspects. For
detection work, recording these times is critical. Recording and knowing these
times helps prevent incorrect responses based on time intervals. For example,
if a handler or trainer places aids in a manner that the team encounters them
at consistent time intervals, the dog may begin to respond at those time
intervals, regardless of whether odor is present or not.
Likewise, if training aids are rarely placed at the
beginning of a search, a dog may easily pass drugs that are present at or near
the first presentation. By tracking these times, the handler or trainer can
prevent false responses and misses caused by faulty application of the schedule
of reinforcement.
Each training and work
environment may affect the team differently. Practice in these areas helps
insure proper performance in real searches.
Without recording the exact
placement of training aids, to include suspects in patrol work, problems cannot
be easily identified. For example, you may find the dog will
not final respond to any training aid over six feet high although it exhibits behavior changes
consistent with locating a target odor. Such information would allow training
to be designed to correct the problem.
This information will help
determine the dog's strengths and weakness. The record should show:
The dog was assisted when it
did not go to the final response or locate the odor source on its own.
In detection work missed aids
occur for many reasons. A training aid is considered missed when the team
encounters the area and the dog does not locate the aid.
In detection work, a false
response is when the dogs exhibits its defined final
response in an area where the target odor is not present.
Each entry other than the dog
locating and responding to the target odor on its own should have a written
explanation of what caused the deficiency (if known) and a planned course of
action to correct the deficiency.
The handler's actions are
equally as important as the dog's. Trends of ineffective search patterns, leash
controls, cueing, and other deficiencies should be noted.
When using detector dogs, a
handler must ensure the dog searches productive areas or common target areas.
Failure to control the search pattern can cause the dog to miss
the target.
Training aids missed because
the handler failed to properly conduct the search must be identified. The
action the handler failed to perform must be stated.
Listing the odors used will
allow for evaluation of weaknesses in certain odors. It ensures that the dog is being trained on
all odors.
Noting odor amount shows the
dog can detect varying amounts of the target odor. It also shows what
concentration levels the dog may fail to detect.
Some containers do not allow
odor to escape as well as others. When we state one gram of cocaine was placed,
we must also state how it was contained. Containers also produce odors. Dogs
rewarded for the presence of container odors may associate the odor with
reinforcement and respond to the container odor by itself.
“[A] well-trained dog will only
reveal the presence or absence of drug odor, or a contraband item." (
DEA’s “Guide
to Canine Interdiction” also discusses placing distracting items in training
problems to ensure that the dog has not begun to respond to them. Handlers have
found themselves in embarrassing position while being crossed examined when they have
not followed DEA’s suggested guidelines.
We do not know with absolute
certainty which odor the dog chooses. It may choose an associate odor as the
controlling stimulus or simply generalizes and responds to the associate odor.
A summary of the training
exercise should be recorded. This can include the handler or trainer’s
opinions, problems, if discovered, and plans to correct deficiencies. If the
dog worked a difficult problem exceptionally well, or had to work odor for a
long time, describe the dog's actions. Note any unusual events such as sudden
noises, or encounters with the unexpected.
Proper utilization records are as important as training records. They
dictate most of your training requirements. Problems that arise in the field
can only be corrected during training. These records must be as accurate as the
handler can record them. Utilization records like any other police report must
include, who, what, where, when, how, and sometimes why. Without this
information, your records will be of little use other
that to impeach your credibility.
Everyone involved with the dispatch or mission should be
recorded.
As in training ensure the right
handler is being reviewed. In cases were
two handlers are assigned to one dog the right handler can be identified.
Some handlers may handle more
than one dog, or the department may use more than one dog.
Shows a
reasonable attempt to arrive as promptly as possible to the scene. In
drug dog cases the courts have ruled your response to a scene must be
reasonable. They have not set a specific time period but suggested
reasonableness would be decided on a case by case basis. For guidance see United States v. Place, 462 US 696, 77
L Ed 2d 110, 103 S Ct 2637.
Provide a complete description of the area.
This portion of utilization is
very important. You need to show the dog is not responding every time you are
asked to search an item for the purpose of providing probable cause. Handlers
can act differently during these searches than other searches or training. A handler can
cue the dog during this search and the problem will not show up during regular
training or testing.
This question is extremely
important. You must answer yes or no.
There are no half ways. You will learn quickly that dogs will give a host of
responses when working an odor. When the dog works an odor that is of interest
or similar to the target odor it often exhibits the same responses as if
working the target odor. To say a dog is working one of its target odors absent
the dog exhibiting the defined final response is speculation. Ask yourself
this: what are you going to do when the court suddenly orders you to produce
the dog for a demonstration. The person setting up the demonstration also has
knowledge of dogs and places odors that commonly will cause a dog to exhibit
behavior changes. You may find yourself a little embarrassed, to say the least.
While in the field, if the dog does not go to final response
on its own, leave.
Some handlers only record
responses were drugs are found and do not record those where nothing is found.
Such a practice does not allow for meaningful training to be conducted, and
prohibits the handler from accurately representing his dog’s reliability to the
courts.
Some courts have taken the
position that failure to record every response is
intentional, deliberate and reckless omissions by the handler, and suppressed
evidence because of it. Have your local legal counsel review Franks v.
Delaware, 438 U.S. 154 (1987).
Problems such as the dog not
working to source can be detected with this information. It can reveal a more
serious problem -- improper responses. A dog can be conditioned to respond to a
particular type of area or item. Records of consistent responses to a
particular type of area, or item would require validation testing to determine
if a problem exists.
If you find your dog is
responding to a particular type of area or item and you are sometime finding
drugs there, it is hard to consider there may be a problem, but you must take
that possibility into consideration.
Odor does not travel against
the wind. For example: your dog responds to the trunk of a vehicle and drugs
are found by officers under the hood, was the response caused by the drugs
found under the hood? If the wind was blowing from the trunk to the front of
the vehicle the answer would be no. Wind direction will support your
articulation of why you worked your dog in a particular fashion, and help you
explain the actions you took after the dog gave a final response.
Rarely will a dog suddenly go
to final response on the target odor without exhibiting other behavioral
changes. These behavioral changes in themselves are not probable cause, but
they are usually lead to a final response.
Dogs can be conditioned to
respond based on time. If your training consistently allows the dog to make a
find within the first two minutes of a search during training, it is very
likely your dog will also respond within the first two minutes of an actual
search.
What were the dog’s actions
prior to final response? The actions of the dog prior to its final response
again are not probable cause, but
they provide a picture of how the dog worked. This can support the officer in
court, or help trainers' correct problems.
No one likes to think that
his/her dog responded improperly, but dogs do from time to time. Does this make
the dog unreliable? The action a handler, trainer, or supervisor takes
following responses where nothing was seized will determine the reliability and
creditability of the team.
Non-productive responses must
not be taken lightly. Record all factors known as if the dog had made a
productive response. Document who, what, where, when and how so that you can
likely identify why. Once you have collected the data, have validation tests
conducted. If the testing does not identify a problem then return to duty, but
watch and review records for trends.