Drug dog expert Steven Nicely helped to defeat a possession case in Nebraska. Based on Nicely’s testimony the court found a drug dog to not be reliable. Steven was kind enough to grant me an interview.
1. Tell us about the case.
Case involved a dog team from the Douglas County Sheriff’s Office Ne, in which approximately 10 pounds of cocaine was seized. The vehicle was stopped because the officer/dog handler believed some defect with its temporary plate. Handler spent over 30 minutes interviewing the driver and passenger before deploying the dog. This was not necessary the entire incident could have been complete in less than 10 minutes after contact with the driver.
2. What did you notice about the dog/handler behavior?
When the dog completed one pass around the vehicle the handler by excessive tapping directed the dog’s attention to the right rear area of the van the dog sniffed intently and tried to walk away. The handler immediately pulled the dog back and forced it to again sniff the area; the dog sniffed again and tried to leave. The dog is pulled back a third time sniffed and tried to leave the handler put his knee against the vehicle preventing the dog from leaving, pulled up on the leash and caused the dog to sit. The handler said the dog had responded revealing the presence of drugs.
3. Were these training or performance problems?
Both, training affect performance directly. The handler performed the way he was trained. Until recently, trainers for departments were never seriously challenged.
4. Can officers make drug dogs falsely indicate the presence of narcotics?
Yes, it can be done intentionally and unintentionally. Look up Clever Hans.
5. How can you tell the difference between a valid indication, and an officer induced indication of narcotics?
In this case it was very obvious, but in most cases it is very difficult. One must be aware of elements that occur before the search took place. A key element is comparing times when it can be confirmed the handler hand information prior to the search that increased suspicion and compare that with search/response/actual find ratio. Do not include claims of residual, the officer smelled drugs, or a roadside confession they cannot be confirmed. Other things to consider is the entire picture of the team’s performance break it down into times the dog was required to provided PC for a search and compare search/response/actual find ratios. The unconscious cues are the most difficult convince the judge they occurred. A ground work about “Clever Hans” should be laid to educate the judge on subconscious we humans can barely see if see at all. Dogs are predominately body language communicators, and lean to read the handler’s body language which can also include leash handling, breathing, and eye contact just to name a few.
6. Finally, what do criminal defense lawyers need to know when evaluating a drug dog performance?
Is the dog trained and tested in such a fashion that one would reasonably believe the dog will only reveal the presence or absences of drugs, a contraband item. (see US V PLACE)