On Drug Dogs, Rafael Montero, Thalidomide, and Florida v. Harris

The Mets are going nowhere fast.  Terry Collins, the manager, said the other day that he expects them to be in the post-season.  Either he was either lying or he's delusional.  The team (and I'm trying to be gentle about this) sucks.

Their superstar hitter, David Wright, is slugging an anemic .384.  He's got a 13-game hitting streak going, but during the streak he's managed only once to hit for extra bases.  That was a double.  Still, and with more than a few glitches along the way, their pitching - especially their starting pitching - has been pretty good these last couple of months.  One of those glitches has been Rafael Montero.

Back in May, when Jenrry Mejia went on the DL, the Mets called up Montero from AAA Las Vegas where he'd been, as he had in the minors the year before, pitching brilliantly.  He bombed.  In 4 games he threw 20 innings, gave up 5 home runs, 13 runs altogether. He gave up 21 hits and walked 11. They sent him back down.

And he pitched brilliantly.  So when Jacob deGrom went on the DL, last week, they recalled him. 

He pitched 5 innings on Wednesday.  Gave up 7 hits.  Walked 2.  5 runs, three of them were homers.

Montero's still young, just 23.  It looks like he has all the talent you could want.  And maybe yet he'll prove to be the pitcher that he looks like he is when he's in the minors.  But maybe he's just what they call a AAAA player.  Too good for the minors, not good enough for the majors.   He wouldn't be the first.  

Take Brandon Wood.  Please.

In 2003, the Dodgers picked Wood in the first round of the draft.  After the 2005 minor league season where he hit a gaudy .321 with 43 homers, he was ranked the number 3 prospect in all of baseball.  Over 5 years in the big leagues, he amassed 272 at bats, a .186 average, and slugged .289.

Maybe these guys clutch.  Maybe they're just not as good as the signs suggest.  What we know that they don't perform when it really counts.

We all know people like that.  They look great until they actually have to do something.  Their test scores are terrific.  Great SAT's, LSAT's off the charts.  Top grades in law school.  Hopeless in the courtroom.  Nobody looked more like someone who should have been a Supreme Court Justice than Warren Burger.  And there was every reason to think that thalidomide was the ultimate cure for morning sickness.
In Florida v. Harris, the Supreme Court explained that for 4th Amendment purposes, what counts with a drug dog is whether he's properly trained or certified, not whether he proves competent in the real world.  Pass the tests in a controlled environment, Elena Kagan said, and he's reliable.  Fucks up all the time in the field?  Close to irrelevant.  The Florida Supreme Court had held otherwise, but they were, she said, wrong.  (Footnotes omitted, extra paragraph breaks added.)

Making matters worse, the decision below treats records of a dog's field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records.

If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog's false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person. Field data thus may markedly overstate a dog's real false positives.

By contrast, those inaccuracies — in either direction — do not taint records of a dog's performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not — and so where a dog should alert and where he should not. The better measure of a dog's reliability thus comes away from the field, in controlled testing environments.

For that reason, evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.

This is, of course, nonsense.  The best test of whether a drug dog is in fact reliable is whether the dog is in fact reliable.  

Before the Mets game Tuesday, General Manager Sandy Alderson said Montero was picked as the guy to fill deGrom's spot in the rotation was based on merit.  You know, he tests well.  Alderson thought so before, too.  Of course, baseball doesn't have a Supreme Court to explain that superstars are determined not be how well guys play in the majors but by whether they were great in the minors. 

The Fourth What? - Part II

It was maybe 15 or 18 years ago, in the United States District Court for the Middle District of Tennessee two federal judges were hearing suppression motions the same week.  Both cases involved traffic stops where dogs had been brought out, sniffed the cars, and scratched at a door or barked or licked their balls or whatever those particular dogs did that indicated to their handlers that they'd smelled something druggy.  The defendants had gotten into the record in each case that when the dog at issue alerted (might have been the same dog, actually), drugs were found something like 35% of the time.

So the question:  When a dog alert leads to the discovery of drugs around 1/3 of the time, is the alert probable cause to search?  (If there's a car, you don't need a warrant, just PC.)  And the answer: One judge said yes.  The other said no.  (Which tells you pretty much all you need to know about how arbitrary justice is in the US of A, or at least the Middle District of Tennessee.)

Anyway, the criminal blawgosphere has been running full-bore ahead with Fourth Amendment issues lately.  (See Orin Kerr, Scott Greenfield, Publius [and his co-contributors and commentariat at Affirmative Links], Gamso, Rick Horowitz, Gideon, and probably half a dozen others I'm unfairly not mentioning [sorry folks].)  Aside from one commentator thinks the rest of us (maybe not Kerr, though maybe him, too) misguided, we all pretty much agree that the 4th is a noble idea honored far more in the breach than in practice.

Mostly, we've been carrying on about exceptions and the exclusionary rule and when the exceptions swallow the rule and how when you get down to it, pretty much whatever the cops do is fine.  But I want to go back to that dog sniff thing, because it gets at a fundamental problem:  Probable cause.

Here's what you need to know about dog sniffs.

First, most courts say that they're not searches, at least not usually.  Here's the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And here's the syllogism.   

• If something isn't a search, none of that matters.  
• A dog sniff isn't a search.  
• Therefore, none of that matters.

It started with luggage at an airport in US v. Place.

A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment.

Then it expanded.  There may be exceptions here and there, but the general rule now is that a dog sniff is not a search.  Because it's not a search, the Fourth Amendment is simply irrelevant to it.  No need for probable cause or a warrant or even a by-your-leave.  So say the courts.  

But a dog sniff, even though it's not a search, does generate Fourth Amendment searches.  As the court inaccurately says in Place, "the sniff discloses only the presence or absence of narcotics."  Except it doesn't.  The sniff reveals, at most, that chemical traces of narcotics are in the vicinity of what's sniffed.  Drugs may be there, may once have been there, or may now (or earlier) have been nearby.  That's it.

And that brings us back to the Middle District of Tennessee.  See, when a dog alerts, there will be a search.  If a dog alerts to a car, they won't bother with stuff like warrants because cars are special and the warrant part of the Fourth Amendment doesn't apply to them.*  But what if the dog's proved unreliable?

I've tried to pursue that issue in state court in Ohio.  Our local appellate court maintains that the drug dog's actual track record is irrelevant.  One percent?  Ninety-percent?  Doesn't matter.  Any alert is probable cause to believe drugs present.  And since the dog's accuracy rate is irrelevant, we're not entitled to it and a court order that it be delivered should be reversed.

But how can it be, you ask, that the dog's record is irrelevant?  Maybe in the middle, but at the extremes?

Ah, how little you understand, grasshopper.  It's because of those words "probable cause."

Now, if you're not a lawyer, you might think that probable cause means something like "probably."   You know, there's "probable cause," so it must be "probable."  The courts (and they're the ones who decide these things, after all) take a different view.  

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability."  There's a chance that the Sun will explode tomorrow ending the very existence of our planet.  It's really unlikely.  Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years.  But, hey, there's a probability.  Just a verrrry teeny one.  Probable cause.**

So there you have the absolute key to the Fourth Amendment.  When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.  When it's even less likely than that, the police get to detain you until their suspicions are allayed.

The United States had, last I looked, a larger percentage of its population behind bars than any other country.  Now you know why.

----------------------

*As Casey Stengel used to say, "You could look it up."  I'll save you the trouble.  The case is Carroll v. United States and then all the cases relying on it.

** There's also reasonable suspicion, which allows the police to detain people long enough to dispell their suspicion.  Reasonable suspicion, the courts tell us, is a less demanding standard than probable cause. 

Drug Dogs and Fingerprints and Other Myths of the Law

Really, it was just one small case. They shipped four crates filled with marijuana from Arizona to Ohio. First one drug dog alerted. Then another did. The delivery was monitored. The guys paid for the shipment and picked it up. Then they got picked up. The marijuana was weighed and analyzed, the packaging was examined. Tried. Convicted. Affirmed on appeal. Ho hum.

Of course, sometime between the weighing and the trial someone stole a whole lot of the dope from the dopes at the sheriff's department, but that's only what makes the case fun, not what makes it interesting. What makes it interesting is the quasi-science. The case is State of Ohio v. Carlos C. Torres, Jr., out of Huron County, Ohio, and it's a model of how we rely on what's nonsense in order to ensure convictions.

Take those drug dogs. Their alerts to the package is what allowed the sting (and therefore the prosecution) to go forward. Here's what the court of appeals said in summarizing the dog testimony.

On September 17, 2007, four crates stamped "COMP. COMPONETS [sic]" were dropped off at the freight dock of R & L Carriers ("R & L") in Phoenix, Arizona, for shipment to the R & L terminal in Norwalk, Ohio. Because it was a "dock pickup,"
being shipped to appellant, the manager of the Phoenix terminal suspected that they
might contain illegal drugs. Therefore, he contacted the Phoenix Police Department,
which took one of its drug sniffing dogs to the R & L terminal. The dog alerted to the
presence of drugs in the crates.
. . .
On September 20, 2007, the crates arrived at the Norwalk terminal. James
Larand is the manager of Norwalk R & L terminal. When the crates arrived, he had a
tractor trailer take them to the local airport and followed them in another motor vehicle. At the airport, a second drug dog sniffed the crates and gave an alert that indicated that drugs were in the crates. A search warrant was obtained, the crates were opened, law enforcement officials "looked inside," saw green vegetation, and smelled "raw marijuana."

Got that. The first dog "alerted to the presence of drugs." The second dog's alert "indicated that drugs were in the crates." No and no.

I'm no expert, but you don't have to be. I don't know anything about the credentials of these particular dogs. (If you didn't know, drug dogs go to school to learn to be drug dogs. When they graduate and pass the relevant tests, they get certified. Every however often, they have to go back to get their certification renewed.) But I'll just assume they're the best darned drug dogs in the country, perfectly trained, passed their tests with flying colors. Doesn't matter. Even that brilliant dog can't do what the court said these dogs did.

Dogs do not, repeat not, alert to the presence of drugs. They alert (if properly trained) to pheremones, chemical traces emitted by drugs into the atmosphere. A dog's alert indicates, at most, that chemical traces of drugs linger in the vicinity of the place of the alert. Maybe drugs are there. Maybe drugs were once there. Maybe drugs were once really close.

Do a human version of the test. Eat a lot of garlic at dinner. Don't brush your teeth. Your breath smells of garlic in the morning. Does that mean you have garlic in your mouth? Do another test. Get a non-smoker to stay in a hotel's smoking room. The next day, smell the non-smoker's clothing. It smells of tobacco smoke. That's how it works.

It's actually possible to be intellectually honest about this, but if you are, then you have to acknowledge what the courts won't: A drug dog's alert may be a reason to think there might be drugs around, but it is simply not evidence that there are drugs around.

Then there are the fingerprints.

Earl Gliem, a forensic scientist specializing in the field of finger and handprints, testified, to a reasonable degree of scientific certainty, that the fingerprint of appellant's right index finger was on one of the black garbage bags that encased the marijuana.

It's an interesting claim, supported by, it would appear, Gliem's personal belief in his competence and everyone's assumption that he must know what he's talking about. After all, they're fingerprints.

Except there is no "reasonable degree of scientific certainty" in fingerprint identification. Why not? Because there's no known error rate because nobody's done the testing. Why not? Because the testing that's been done tends to indicate that fingerprint examiners don't know what they're doing. See, for instance, here and here, and for the most recent example of botched fingerprint identification here.

The myth of fingerprints is just that, a myth conjured up by fingerprint examiners who declare themselves infallible. They are no more than trained lookers. And what is true of fingerprints is true of tire tracks and bite marks and ballistic and hair comparisons and all the other forensic matching and comparison based on looking at two things and saying the one caused or matches the other. Maybe, and maybe not. But there are no standards, no fair measure. We're simply to trust.

Don't believe me, a simple criminal defense lawyer? Fair enough. How about a distinguished panel of scientists of the National Research Council who did a study commissioned by Congress? They said the same thing.

None of this would have made a difference to Mr. Torres. The dog sniff and fingerprint evidence was, frankly, no more than incidental to his conviction. All the more reason, then, to get it right.