Law enforcement use of dogs
 Dogs are
often called upon to assist in law enforcement. Among other things,
they can help detain a suspect, pursue a suspect (by tracking him),
identify a suspect (by his scent), detect illegal substances (including
bombs and controlled substances like illegal drugs), deter crime, protect officers, and control crowds.
Testimony
showing that a dog pursued or tracked a fleeing suspect to the site
where he was hiding may be admissible under some circumstances. (See
People v. Malgren (1983) 139 Cal.App.3d 234, 237-238, disapproved on
other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145 [allowing
evidence that the defendant was tracked from the victims' house to some
bushes less than one mile from the house, with the dog on the trail
within a half hour of the incident]; and People v. Craig (1978) 86 Cal.App.3d
905, 910-911, 915-917 [allowing use of dog tracking evidence where the
suspects were followed from their stolen getaway car to the point inside
an apartment complex where they were detained]. But compare People v.
Gonzales (1990) 218 Cal.App.3d 403 [reversing a conviction where a dog
found the defendant in a vineyard less than one mile from a home that
was burglarized half an hour earlier].)
Testimony
that a dog identified a suspect by his scent may be admissible if the
techniques for scent tracking achieve acceptance and a proper foundation
is provided for the admissibility during trial. Kondaurov v. Kerdasha, 271 Va. 646 (Va. 2006); People
v. Willis (2004) ___ Cal.App.4th ___ , 2004 DJDAR 1010. See discussion,
below.
Testimony that
a dog alerted officers to the presence of illegal drugs is generally
admissible. (United States v. Place, 462 U. S. 696 (1983).) This is
true even when officers are stopping an individual for a routine traffic
ticket; as long as the traffic stop is based on probable cause, the
police have the right to employ a drug-sniffing dog to walk around the
car and attempt to discern the presence of illegal drugs inside it.
(Illinois v. Caballes, 543 U. S. ____ (2005), 01-24-2005, docket no.
03-923.)
Example of a
dog scent case (People v. Ryan Willis)
Ryan Willis was charged
with the first-degree murder of his former girlfriend, Crystal Stahl. Several
people witnessed Willis physically abusing Stahl while they were dating.
After Stahl broke up with Willis, he told his friends that he would kill
her by setting her taxicab on fire. A few weeks later, Stahl's charred
body was found in her taxicab, which had been set on fire.
During the trial,
the state offered evidence that a bloodhound had detected Willis' scent
at the crime scene. Willis objected, arguing that scent transfer unit (STU)
technology was not scientifically reliable. The trial court admitted the
STU evidence. Willis was convicted.
The Court of Appeal
affirmed the conviction but ruled that the evidence should not have been
admitted. The use of new scientific techniques at trial requires proof
of reliability. The dog handler who testified for the state was not a scientist
and, thus, was not qualified to establish that STU was widely accepted
in the scientific community. There was no proof that the handler used correct
scientific procedures while employing the STU. There were also several
foundational weaknesses because it is unclear how long a scent remains
on objects or whether each person has a unique scent. Thus, it was held
that the trial court improperly admitted the STU evidence.
However, there
was abundant evidence pointing to Willis' guilt. The Court of Appeal felt
that it was not reasonably probable that the jury would have reached a
different result in the absence of the STU evidence. Thus, the trial court's
error was regarded as harmless, and the conviction was upheld. (People
v. Willis (2004) ___ Cal.App.4th ___ , 2004 DJDAR 1010.)
The Willis case illustrates a number of issues.
In all states, the trial judge rules whether evidence is admissible. When
the evidence is supposedly scientific, California judges apply the rule
announced in People v. Kelly (1976) 17 Cal.3d 24. The Kelly rule applies
to new scientific techniques, especially in cases involving novel devices
or processes. To protect the jury from scientific techniques that convey
a misleading aura of certainty, a new technique must be subjected to a
three-part test of reliability. First, there must be proof that the technique
is considered reliable in the scientific community. Second, the witness
testifying about the technique must be a qualified expert on the subject.
Third, there must be proof that the person performing the test used correct
scientific procedures. The analysis is needed where the evidence is so
foreign to everyday experience that it is difficult for laypersons to evaluate
merely using their own common sense and good judgment. (People v. Mitchell
(2003) 110 Cal.App.4th 772, 782-783.)
The Court of Appeal in the Willis case
found several things wrong with the STU evidence. The dog handler was not
a scientist, so he was not capable of testifying that the STU was accepted
throughout the scientific community. There was also no proof that the dog
handler used correct scientific procedures while employing the STU. To
make this evidence admissible, the court established a blueprint for prosecutors
in the future:
[A] foundation must be laid from
academic or scientific sources regarding (a) how long scent remains on
an object or at a location; (b) whether every person has a scent that is
so unique that it provides an accurate basis for scent identification,
such that it can be analogized to human DNA; (c) whether a particular breed
of dog is characterized by acute powers of scent and discrimination; and
(d) the adequacy of the certification procedures for scent identifications.
(People v. Mitchell, supra, 110 Cal.App.4th at pp. 791-792.)
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