A version of this article first appeared in The Legal Investigator, the official journal of the National Association of Legal Investigators.
Trained. Certified. Reliable.
Those three words describe many legal investigators. They also describe factors the government must prove for admissibility of evidence obtained through the use of a police drug dog.
K-9 cases are often complex, but any competent legal investigator can conduct an initial review of a drug dog investigation. Doing so requires knowledge of K-9 industry standards and an understanding of how to compare those standards against the documented history of a handler/K-9 team.
Three standards apply to the admissibility of evidence in every K-9 drug case. The standards relate to training, certification, and reliability of a K-9 team. All three standards must be met in order for the government’s evidence to be ruled admissible.
If the prosecution cannot prove a K-9 team met or exceeded each standard on the date of arrest, all evidence discovered as a result of the dog’s use should be suppressed. This article describes how to determine if a drug detection K-9 team is trained, certified, and reliable.
The national standard for drug dog training is 16 hours each month. No single organization dictates how to correctly train or deploy a police K-9. Training time must be dedicated to the practice of work-related skills. If the handler conducts and documents a minimum of 16 hours of training each month, courts will most likely rule the K-9 is adequately trained.
It may surprise the reader to learn that drug dog handlers are not required to conduct 16 hours of monthly drug detection training. The standard is 16 hours of training, not 16 hours of training dedicated to drug detection. If the dog is also trained in obedience, drug detection and obedience can share training time. There is no requirement for 16 hours of training in each discipline, only 16 hours of total training every month.
Determining whether a K-9 team meets the monthly training standard of 16 hours per month may not be easy, but it is straightforward. What complicates matters is the fact that that some police K-9 training records are harder to interpret than others.
Once the investigator identifies the duration of each training event from the records, the times are added together to determine a sum. The result may or may not average 16 hours each month. Many handlers fail to meet this standard. Keep in mind that only training time prior to the defendant’s arrest is calculated.
The national standard for drug dogs is annual certification. No single organization dictates how police must certify a drug dog. The certification process is a series of exercises designed to test the handler and K-9 as a team. The K-9 is tested on its ability to correctly detect specific drug odors and ignore distractions. The handler is tested on her ability to recognize and interpret her dog’s responses to those odors. If a handler presents evidence of successful certification testing, courts will most likely rule the K-9 is properly certified.
State and national police K-9 organizations conduct certification testing. If the K-9 team passes the tests, the handler gets a certificate attesting to the results. Regardless of the entity providing certification, ubiquitous guidelines include: testing scenarios that simulate real-life environments encountered during police work, quantities of drug odor sources between one gram and several ounces, time limits for each exercise, certifying officials with prior experience handling a drug dog, and the handler not knowing the locations of the hidden sources of drug odors.
If the prosecution cannot prove a K-9 team met or exceeded each standard on the date of arrest, all evidence discovered as a result of the dog’s use should be suppressed.
Handlers must provide a copy of the certificate as part of the discovery process in each K-9 case. Every certificate should display the certifying organization, the test date, names of the certifying judges, and the names of the handler and her dog. Most police K-9 certifications are for the team, not the handler or dog individually. In many states, if the handler’s name is on the certificate without the dog’s name, a defense attorney can argue that there is no proof of team certification.
The date of certification should be within the 364 days prior to the date of arrest. That shows it was valid, as an annual certification, when the drug dog’s activity contributed to the defendant’s arrest. The certificate should also list the specific drug odors which the K-9 team successfully detected to qualify for certification. If the substances are not listed on the certificate, they may be written on an accompanying score sheet from the certifying officials. The odors should also be listed in the organization’s handbook or on its website.
The national standard is that a drug dog be reliable in detecting its trained odors. There is no single measure of accuracy that determines whether a drug dog is reliable. If the dog consistently demonstrates behavior during training and certification which correctly denotes the presence or absence of drug odors, courts will most likely rule the K-9 is adequately reliable.
To compute accuracy, the investigator counts how many times the dog is correct when detecting drug odor during training and certification exercises. That number is divided by the total number of training exercises performed. The result is then expressed as a percentage, which conveys the dog’s accuracy in a form that is easy to understand. For example, a dog that is correct 84 times during 100 detection exercises has an accuracy of 84%.
Reliability is a moving target and will be subjectively determined by the judge in each case.
Measuring accuracy is simple, but accuracy does not equate to reliability. Courts do not use a single accuracy percentage as the threshold between a reliable drug dog and an unreliable one. That determination is always made by a judge, and is case-dependent. The acceptable percentage varies from one court to the next, and sometimes varies within the same jurisdiction.
For example, a judge may declare a drug dog reliable with a documented accuracy of 72%. A different judge in a second case may rule a dog that is accurate 68% of the time is also reliable. In a third case, a judge may decide that 74% is not accurate enough to be reliable even though 74% is more accurate than previous determinations made by other judges.
Simply put, reliability is a moving target and will be subjectively determined by the judge in each case.
I hope this information makes your next drug dog case less intimidating. Remember that the burden of proof is on the prosecution. Handler testimony about training, certification, and reliability is not enough by itself. The handler must provide documentation to the defense team. You can analyze those documents to calculate average monthly training hours, determine whether a valid certification exists, and develop an accuracy percentage.
Methodically examine the records provided by the prosecution. Carefully measure each K-9 team against the three standards I’ve explained. With practice, you can impress the defense and confound the prosecution. You might even establish reasonable doubt that a K-9 team is trained, certified, and reliable. Woof!
About the author:
Sam Petitto is a legal investigator specializing in felony criminal defense and K-9 consulting. He is Region VI Director for NALI and a Senior Board Member at Large for PPIAC in Colorado. Before joining NALI, Sam and his K-9 were professional hide-and-seek players for the City of Durango Police Department. You can contact Sam by calling (970) 317-9796, emailing Sam(at)DiscreetDetection(dot)com or Tweeting to @SamPetitto