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Forensic Evidence Case Law Developments
Canines in Court
From Civil Forfeiture to
Criminal Human Scent
Identification Cases
Dr. Ken Furton Ken.Furton@fiu.edu
Several issues are regularly debated in the courts
related to the deployment of canines in different
situations:
1. Does a dog sniff outside of residential home
constitute a search under the Fourth Amendment?
2. Does a dog to sniff at a routine traffic stop violated
privacy clauses and how long can the motorist be
detained while waiting for a canine unit to arrive?
3. If a narcotics detection canine alerts to a large sum of
currency can that currency be confiscated as “drug
money”?
4. If a human scent identification canine matches a
suspect to a crime scene scent object can that
evidence be presented in court and what weight
should be given?
5. Should the results of a dog sniff be excluded because
the technique is not sufficiently reliable.
Does a dog sniff outside of residential home constitute a
search under the Fourth Amendment?
State v. Rabb; 920 So.2d 1175 (Fla. App. Dist. 2006)
•Using the holding and analysis of the United States Supreme Court
in Kyllo v. United States, the court held that the use of drug sniffing
dogs to detect substances located within the house amounted to an
illegal search.
•The court reasoned the use of the trained dogs to enhance the
sensory ability of the officers was the same as the use of thermal
technology to detect heat variances in Kyllo.
•It allowed law enforcement to gain information that would not
have been discernable absent an outside sensory source.
Special thanks to The National Clearinghouse for Science,
Technology and the Law at Stetson for selected case summaries
Does a dog sniff outside of residential home constitute a
search under the Fourth Amendment?
State v. Davis; 711 N.W.2d 841 (Minn. App. 2006)
•The issue was whether a dog sniff in the first floor hallway of an
apartment building to detect illegal drugs constitutes a search
under the 4th Amendment or the privacy clause of the Minnesota
Constitution.
•The court determined that there was not a privacy expectation in a
public hallway of an apartment building because it was in common
usage by other residents, guests, and building personnel.
•The court found that under the state constitution privacy clause
the dog sniff did constitute a search and required "a reasonable,
articulable suspicion" of drug activity to legally use canine sensory
detection.
•The detection of the illegal drug activity occurred in the hallway,
not the defendant's apartment. Thus, there was not an intrusion
that would warrant a finding of probable cause to search the
premises.
Does a dog sniff at a routine traffic stop violated privacy clauses
and how long can motorist be detained waiting for K9 unit?
People v. Cabelles; 221 Ill.2d 282 (Ill. 2006) - The court found
under previous Illinois cases addressing protected privacy interests
the use of canine would not breach reasonable expectations of
privacy or impermissibly intrude. The court briefly rejects
Defendant's argument against the reliability of the dog sniff by
finding that claims of false positives and widespread abuse of this
technique to conduct searches was speculative and unsupported by
the evidence.
State v. Almazan; No. 05CA0098-M (Ohio App. Dist. 2006) - The
court notes that once a law enforcement officer determines there
are "specific and articulable facts" showing criminal activity, an
investigative stop is allowable and a drug sniffing dog may be used
even absent suspicion of drug activity. Additionally, in reference to
the particular assignment of error, the court found that the officer's
testimony in the trial court as to the training and certification of the
dog and his explanation as to why she could incorrectly detect an
odor of drugs was sufficient to establish her reliability and training
as a source of evidence.
Does a dog sniff at a routine traffic stop violated privacy clauses
and how long can motorist be detained waiting for K9 unit?
•State v. Meza; No. 04-800 (Mont. 2006) - The court noted that
under the Montana Constitution a dog sniff does constitute a search
but only requires a particularized suspicion of drug-related activity
to be allowable.
•People v. Driggers; 221 Ill.2d 65 (Ill. 2006) - This court found that
the officer legitimately detained Defendant in a traffic stop that
lasted only five minutes and the dog only identified the presence of
items he was not legally permitted to possess.
•State v. Ofori; No. 0267 (Md. App. 2006) - The court held that a
time period of approximately 20 minutes to allow the canine unit to
arrive was reasonable once the police officer had a reasonable basis
to suspect illegal contraband. As an aside, the court also notes that
the probable cause created by a positive dog sniff is sufficient to
both search and arrest drivers and/or passengers in a vehicle
without additional information.
Does a dog sniff at a routine traffic stop violated privacy clauses
and how long can motorist be detained waiting for K9 unit?
Wilson v. State; 847 N.E.2d 1064 (Ind. App. 2006)
•Two factors are used to assess whether a traffic stop was
unnecessarily prolonged.
•First, the courts look to see if the purpose of the initial traffic
stop was concluded, and
•Second, whether a reasonable suspicion was present to justify
a further detention of the vehicle.
•In the present case, a request for drug sniffing dog was not made
until after the purpose of the stop was completed and the defendant
refused a request to search his car.
•Additionally, the facts did not provide enough to raise a reasonable
suspicion of illegal activity merely based on nervousness, watching
patrol cars, and carrying $4000.00 in cash.
•Thus, the officers violated Defendant's Fourth Amendment rights
by holding him after he refused a request to search his vehicle.
“Crime and Chemical Analysis”, 24 March 1989, Science,
Vol. 243, Research News P. 1555. According to Lee Hearn,
chief toxicologist for the Dade County Medical Examiner
Department in Miami, tests show suggest that most of the currency in
circulation in the United States has at least minute traces of cocaine.
The bottom line is that any large amount of cash in the United States
is likely to show traces of cocaine, Hearn said, which makes drug
money confiscation programs problematical. “The police could go
into any bank in the country and seize all their money”, he said.
No drugs other than cocaine have been reported to be
significantly contaminating paper currency. Trace
amounts of heroin, phencyclidine, methamphetamine,
amphetamine, methylenedioxymethamphetamine
(MDMA) and Δ9-tetrahydrocannabinol (THC) have been
reported but in fewer than 10% of cases and in extremely
trace amounts or not quantified.
A recent study of 125 bills demonstrated THC
contamination in 1.6% of bills at an average amount of
100 ng (billionth of a gram).
9th U.S. Circuit Court of Appeals (U.S. v .
$30,060.00, 1994 WL 613703 (Cal.) upheld the
dismissal of a forfeiture case stating that
"… evidence that greater than 75% of all circulated
money… is contaminated with drug residue,
distinguish this case from our previous cases. We
therefore hold that the narcotics detection dog's
positive alert to Alexander's money, the packaging
[30 rubber band bound stacks of $5, $10, $20, $50
and $100 bills in a plastic bag] and the amount
[$30,060] of Alexander's money, and his false
accounts of the money's source and his own
employment record is insufficient evidence to
establish probable cause that the money was
connected to drugs as required to warrant
forfeiture.
Citations in this decision include testimony that 90%
of all U.S. cash contains sufficient quantities of
cocaine to alert a narcotics detection dog.
The steps needed to determine if there is enough
cocaine on circulated currency to alert dogs:
1. Determine exactly how much cocaine there is on
circulated paper currency. Are there other drugs?
2. Determine how little cocaine can be detected by
properly trained detector dogs.
3. Determine what volatile(s) dogs are detecting.
4. Determine threshold of detection by detector
dogs.
5. Determine levels of these volatile(s) in street and
purified cocaine.
6. Determine where the volatile(s) are coming from.
7. Determine how quickly the cocaine odor
chemical(s) dissipate.
8. Determine what non controlled substances
contain these odor chemical(s) and in what
amounts.
An alert (positive) to cocaine on currency by an IMS indicates…
nothing of legal significance
1. Concentration - odorants concentrated
odorants O
by olfactory-mucus-air partition and by specific
carrier proteins present within the mucus
C
OCH3
cilia 2. Contact - Odorants come in contact with
receptors on ciliary membrane
mucous layer
3. Odorant-receptor binding -
triggers biochemical cascade (series of
chemical reactions)
Olfactory cell 4. Second messenger molecules
are produced inside the cell
cell 5. Second messenger molecules
open ion channels - leads to the
body generation of electrical activity
Supporting Cocaine blocks ion channels !
cell
6. Electrical activity is NOT
Axon transmitted to the brain
Basal cell
(nerve fiber) 7. Integration of the neural signals
- highly complex and not fully understood
8. Purging of odorants – via exhalation
<5%, via the blood stream, and via mucus flow.
Some Decomposition Pathways
of Illicit Cocaine - 3-(benzoyloxy)-8-methyl-8-
azabicyclo-[3.2.1]octane-2-carboxylic acid methyl ester
Cocaine in
methanol is 4%
methyl benzoate
in 1 week
Solid cocaine
remains
0.0007%
methyl benzoate
Dogs detect recent contamination Cocaine on Money
in the form of methyl benzoate SEM 1000X
Circulated Currency
10 ng surface
10g total
10g initial Dogs are trained on
O O 1 to 1,000+ g cocaine
C C
OCH3 OCH3
1ng/sec
“Crack” Cocaine O
C
OCH3
Cocaine on Money
SEM 5000X
Drug Dog
10g initial
US v. $22,474.00 IN U.S. CURRENCY, No 99-16611
(9th Cir. April 18, 2001)
“Here, the government presented evidence that the
dog would not alert to cocaine residue found on
currency in general circulation. Rather, the dog was
trained to, and would only, alert to the odor of a
chemical by-product of cocaine called methyl
benzoate.
Moreover, the government provided evidence that
unless the currency Mahone was carrying had
recently been in the proximity of cocaine, the
detection dog would not have alerted to it. That
Evidence was not disputed.
In addition to the undisputed evidence of the
sophisticated dog sniff, there are numerous other
undisputed facts which, in the aggregate, establish
probable cause to believe that the money seized
from Mahone was to be (or had been) used in drug
related activity.”
HUMAN SCENT EVIDENCE
•Hodge v. State, 98 Ala. 10 (Ala. 1893). The state Supreme Court
acknowledged that dogs may be trained to follow the tracks of a
human being with considerable certainty and accuracy. It held
that testimony regarding the tracking by the dog was competent
to go to the jury for consideration, in connection with the other
evidence, as a circumstance connecting the defendant with the
crime.
•State v. Hall, 4 Ohio Dec. 147, 148 (Ohio Misc. 1896) Court stated
that in cases where bloodhound evidence is used, full opportunity
should be given to inquire into the breeding, training and testing
of the dog, and to all the circumstances attending the trailing in
the case on trial, and to the manner in which the dog then acted
and was handled by the person having it in charge. The court held
that there was no error in admitting the evidence offered by the
state.
•Brott v. State, 70 Neb. 395 (Neb. 1903). Bloodhounds trailed the
burglar to defendant's house. The court pointed out that dogs are
frequently right and are frequently wrong in their conclusions and,
as a result, is unsafe evidence.
Jump ahead about 100 years…
•United States v. Hornbeck, 63 Fed. Appx. 340 (9th Cir. 2003). The
defendant asserted that the evidence was inherently unreliable, and
therefore could not meet the methodology and reliability
requirements of Daubert.
•The court found that the evidence made it more likely that
defendant was the bank robber by connecting the car with the
evidence from the robbery to the defendant.
•The court noted that when the district court conducted a pretrial
hearing on defendant’s motion in limine to exclude the dog scent
evidence, it assessed the reliability of the evidence and determined
that a proper foundation had been established for the admission of
the scent tracking evidence. The district court noted that the K-9
Trainer had successfully alerted police to defendants for eight years
and the bloodhound had been used in 22 criminal investigations.
•The court concluded that in light of the other evidence connecting
defendant to the robbery, any alleged error would have been
harmless and as a result, the district court did not abuse its
discretion when it determined that the canine tracking evidence
was relevant and not unfairly prejudicial.
•The judgment was affirmed on this and other grounds.
•Grant v. City of Long Beach, 2003 U.S. App. LEXIS 13038 (9th Cir.
2003). From a scent pad created at the crime scene, a police
bloodhound attempted to track a rape assailant. The dog eventually
led the officers to a twenty unit apartment building almost two
miles away from the crime scene.
•The officers did not provide any evidence regarding the dog’s
accuracy rate to bolster her reliability.
•The court stated that while it recognized the importance of dogs in
police investigations, it also adhered to the requirement of
reliability as a safeguard against faulty canine identifications.
•It concluded that the facts of this case provided no reason to
depart from a showing of the dog's reliability and the jury had good
reason to question the reliability of the dog's "identification."
•Appellee sued the City of Long Beach, the Long Beach Police
Department, and the two police officers that spearheaded the
investigation under 42 U.S.C. § 1983 for false arrest and false
imprisonment.
•There was a jury award of $ 1.75 million in compensatory and
punitive damages in favor of appellee.
•In Winston v. State (Tex. App. 2002), an appellate court noted
that 37 states and the District of Columbia admit scent trailing
evidence to prove the identity of the accused. “For purposes of
judging the reliability of evidence based on a dog’s ability to
distinguish between scents,” the court wrote, “we believe there is
little distinction between a scent lineup and a situation where a dog
is required to track an individual’s scent over an area traversed by
multiple persons.”
•A California appellate court criticized this approach as too
simplistic in People v. Mitchell (2003) 110 Cal. App. 4th 772 and
stated its concern about “the absence of any evidence that every
person has a scent so unique that it provides an accurate basis for a
scent identification lineup.”
•Al-Amin v. State, 278 Ga. 74 (Ga. 2004). The defendant asserted
that the trial court erred in admitting evidence that he was tracked
by dogs when he was arrested in Alabama because there was no
scientific evidence shown of the reliability of the evidence. The
Georgia Supreme Court found that the dogs were used to flush the
defendant out of a wooded area and a showing of the qualifications
of the dogs as tracking dogs was not necessary.
People v. Willis, 115 Cal. App. 4th 379 (Cal. Ct. App. 2004).
•The court held that the STU was a novel device used in the
furtherance of a new technique and, therefore, was subject to
Kelly analysis.
•The dog handler testified about the STU and the dog scent
identification, but he was not a scientist or engineer and,
therefore, was not qualified to testify about the
characteristics of the STU or its general acceptance in the
scientific community.
•There was also a foundational weakness in the dog
identification evidence, because there was no evidence on
how long a scent remained on an object or at a location,
whether every person's scent was unique, and the adequacy
of the certification procedures for scent identification.
However, the court held that there was no prejudice from the
admission of such evidence in light of the overwhelming
other evidence of defendant's guilt.
Human scent
What is travels on
plume of
Human Scent? warm air 1/3
– 1/2 inch
thick
“Primary Odor” traveling up
Contains constituents and over the
that are stable over time body at a
regardless of diet or
rate of 125
feet per
environmental factors minute.
“Secondary Odor” Human Thermal Plume, with permission Prof. Gary Settles, Penn State
Contains constituents Volatile Organic Compounds
which are present due to (VOCs) emitted directly
diet and environmental Particulate matter: Epidermis
factors sheds 667 epithelial cells per
“Tertiary Odor” second (ave. lifespan of 36
hours)
Contains constituents
present because of the Skin “rafts” (14 μm and 70 ng)
consisting of epithelial cells,
influence of outside microbial bacteria and body
sources (i.e. soaps, secretions containing VOCs.
perfumes, etc.).
Curran, A.M., S.I. Rabin, and K.G. Furton. Analysis of the Uniqueness and
Persistence of Human Scent Forensic Science Communications 2005 7:2
What countries use dogs for scent ID line-ups?
Poland: > 110 dogs
Hungary: > 50 dogs
Netherlands: 15 dogs
Germany: 8 dogs
Denmark: 6 dogs
Belgium: 2 dogs
Finland: 4 dogs
Also: Russia, Slovakia, Bulgaria, Lithuania, France, Japan
U.S.: 2 dogs?
Specific protocol
Different number of dogs are used for a specific comparison:
3 dogs in Germany and Denmark
2 dogs in Poland
22
1 dog in Hungary, Netherlands and Belgium
Law Enforcement Uses of
Collected Human Scent
•Trailing
•Specialized
Bloodhounds
• Human Scent Line-
up Identifications 23
Use of scent identification line-ups
Individual odors are put in a row
A trained dog compares the odor trace to the odor
of the suspect following a fixed
protocol
24
Specialized
Bloodhounds
FBI’s Human Scent
Evidence Team
25
Collection of Scent from Objects
Contact sampling optimization
Non-contact collection
Altering the STU-100
DUKAL
J&J
26
Evaluation of
Storage Materials
• There is currently no
standardized
material used to
store collected
human scent.
• These materials
have yet to be
optimized.
27
SPME-GC/MS
Basic Principles of SPME:
– Simple, Solvent-free
GC/MS Instrument
SPME Fiber headspace extraction
technique
– Fiber is coated with a
stationary phase which
extracts analytes from the
sample
– Typically, an equilibrium exists
between the sample, the
headspace and the fiber
Data
Processor
– Analytes can be either
absorbed or adsorbed
depending on the fiber type
28
Inter-person Comparison of the Common Compounds
F7 437 ng
108 ng
F6
536 ng
F5
208 ng
F4
627 ng
Subject
F2
M7 124 ng
M6 455 ng
M5 426 ng
M4 384 ng
337 ng
M2
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Relative Peak Area Ratio 29
Spearman Rank Correlation of Multiple Intra-day
Hand Odor Samplings
1 Spearman Ranking of Test Sample Against a Library
– Output: Correlations of test to library in
M4,1
M4,2
M4,3
descending order
0.8
Correlation Coefficient
0.6 M2,1
M2,2
M2,3
0.4
F5,2
F5,1
F5,3
F2,1
0.2
F2,3
F2,2
0
F6,1
F7,2
F7,3
F7,1
F6,2
F6,3
-0.2
30
-0.4
www.swgdog.org Scientific The need for
Working cooperation
global
Group on understanding
and
Dog &
Orthogonal detector
Guidelines
33
Standardization events leading up to establishing SWGDOG
• FIU/IFRI houses research programs in instrumental and K9 detection since 1994
and, working with the NFSTC, piloted a canine trainer and detection team
certification program in 1998 with independent scientific
validation.
• From 1999-2003 the Interpol European Working Group on the Use of Police Dogs
in Crime Investigation (IEWGPR) completed recommendations aimed at improving
the efficiency of the use of police dogs.
• At the 2nd, 3rd and 4th National Detector Dog Conferences in 2001, 2003 and 2005,
co-hosted by IFRI and Auburn University, general best practices for detector dog
teams were drafted and refined.
• A SWGDOG organizational meeting was held on 1/15/04 and bylaws ratified for
SWGDOG on 9/1/04 by the Executive Board, which included the chair of the
IEWGPR.
• In 2005, funding was secured and 55 SWGDOG members were selected and
meetings begun September 2005. An essential aspect of SWGDOG is local, state,
national and international representation.
34
SWGDOG is managed by FIU and funded by FBI, NIJ and DHS
SWGDOG Subcommittees and target timetable for
posting of each best practice guideline
1. Unification of terminology (4/2006)
2. General guidelines for training, certification, and maintenance 4/
2006)
3. Selection of serviceable dogs and replacement systems (9/2006)
4. Kenneling, keeping, and health care (9/2006)
5. Selection and training of handlers and instructors (9/2006)
6. Procedures on presenting evidence in court (September 2006)
7. Research and technology (3/2007)
8. Substance detector dogs: Agriculture; Arson; Chem./Bio.;
Drugs; Explosives; Human remains; Other/Misc. (3/2007)
9. Scent dogs: Scent identification; Search and Rescue; Trailing
dogs; Tracking dogs (3/2007)
35
