“Bono” is a state police drug dog in North Carolina. Of the 85 times Bono has alerted his handler to the presence of drugs, a subsequent search turned up actual drugs just 23 times.
No matter. Federal District Court Judge Glen Conrad ruled late week that Bono’s record is still good enough to establish probable cause.
Bono “may not be a model of canine accuracy,” Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.
However, the judge ruled that other factors, including the dog’s training and flawless performance during re-certification sessions, were enough to overcome a challenge raised by Green’s attorney, public defender Randy Cargill.
Conrad’s justification for allowing the search illustrates just how clueless federal judges can be about these things—and why they can be such poor custodians of the Fourth Amendment. Judges have far too little skepticism for law enforcement officials.
I wrote about this in a column for Reason a couple years ago. The reason Bono performs so well in certification exams is because those exams test his ability to detect drugs. Dogs are great at that. But when Bono is with his handler alongside the highway, he isn’t detecting drugs. He’s pleasing his handler. Dogs are great at that, too. And that’s what we’ve bred them to do. On the road, Bono reading his handler’s body language, and alerting to confirm his handler’s suspicions. Of course, this assumes Bono’s handler is on the up and up, and isn’t deliberately cuing alerts. Which is also a problem.
It gets worse.
At a hearing earlier this month, Assistant U.S. Attorney Ashley Neese defended the performance of the German shepherd.
In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.
Taking those cases into account, Conrad found that Bono’s accuracy rate was at least 50 percent.
I wonder if the judge asked the U.S. Attorney to provide some documentation for his claims, or if these were cases of an officer claiming to have found “shake” or residue—both of which, conveniently, are never tested.
But let’s take the U.S. Attorney’s claims at face value. Let’s say the dog was alerting to odors from drugs that had been in the car days or weeks or months earlier. (Which may or may not have had anything to do with the person driving when the car gets pulled over.) As one dog trainer told me in the piece I wrote for Huffington Post earlier this year, drugs dogs can be trained to ignore residue, shake, and lingering odors. That is, they can be trained to alert only when there’s a measurable quantity of illicit drugs. The cops don’t want those dogs. They want dogs that will give them probable cause to search as often as possible. And because the courts have said a dog’s sniff is, in itself, enough for probable cause, there’s a strong incentive for police departments to want dogs that will alert to just about anything.
What’s incredible is that even if everything the U.S. Attorney says is true, the dog and his handler still have a 50 percent rate of error. Which means they’re no better than a coin flip. A coin flip is good enough for Judge Conrad.