How to present and defend the K-9 case: "properly trained, a man can be a dog's best friend."

• Author: Sylvester, Sandra R.

[ILLUSTRATION OMITTED]

CHARLES DARWIN had a profound respect for the qualities possessed by the domestic dog. In The Descent of Man, Darwin wrote about dogs' evolution by explaining that dogs "may not have gained in cunning, and may have lost in wariness and suspicion, yet they have progressed in certain moral qualities, such as in affection, trustworthiness, temper and probably in general intelligence." (2) Nowhere is this more evident than in the intelligence and diligence of the K-9. Yet, despite Darwin's admiration for our four-legged friends, very little was known about a dog's ability to learn, communicate and problem-solve until the late twentieth century. With increased understanding of K-9s' capabilities came increased use of K-9s in law enforcement roles.

PRESENTING THE K-9'S ABILITIES

The multiple tasks performed by law enforcement K-9s range from drug and explosives detection to criminal apprehensions. Due to their success in law enforcement and the attributes of their superior olfactory system, the criminal defense bar has taken aim at the K-9. Multiple law school journals and criminal defense Web sites are attacking the validity of the K-9 sniff. (3) It is therefore incumbent upon the prosecutor to present K-9 testimony in a thorough and thoughtful manner.

First, the prosecutor should be able to explain and present the olfactory capabilities of the K-9, which are well documented. The average dog has approximately 220 million scent receptors in the nose compared to the five million possessed by humans. (4) A dog's heightened ability to smell is due in large part to the subethmoidal shelf, a structure not found in human anatomy. Air that is sniffed passes over the subethmoidal shelf and on to the lining of the nasal membrane. As noted by Dr. Bruce Fogle, "sniffing leaves air 'resting' in the nasal chambers." (5) Another biological difference between humans and canines is the amount of mucus produced in the nose. Dogs produce a substantial amount of mucus. Dr. Fogle noted that odor molecules "get dissolved and concentrated in nasal mucus which sticks to the receptor cells." (6) A number of scientific studies have been conducted pertaining to capabilities of the canine and the biology of the sniff. (7) Review of those studies exceeds the scope of this article, but Peter G. Hepper and Deborah L. Wells, in their article "How Many Footsteps Do Dogs Need to Determine the Direction of an Odour Trail?" provide an excellent bibliographic review of many of the studies. (8) In a contested criminal case, the prosecutor should become familiar with the science behind the ability.

At trial, the typical defense attack on the K-9 arises out of a traffic stop. Usually, a vehicle is stopped for a traffic infraction, and patrol calls out the K-9 to do a "sniff" around the vehicle. (9) When the K-9 handler arrives on the scene, he will typically do a "dog pass" (10) where air currents may present an odor and the dog may be able to detect a "scent cone." (11) Once the "dog pass" is completed, the handler and dog will do a "detail pass" where the handler will tap the seams of the vehicle where air might escape. During the detail pass, the tapping on the vehicle is to present the area to be sniffed and is used to remind a dog to inhale. The handler is looking for a change in the dog's body language that would be consistent with the dog showing interest in a scent. The Virginia Police Canine Association (VPCA) refers to the K-9's behavior as D.I.A. (detection, indication, and alert).

Each certifying organization may use different terms to refer to the K-9's behavior. (12) Both the handier and the prosecutor should strictly adhere to the terms and definitions used to describe the K-9's behavior by the certifying agency in order to protect a record on appeal. For purposes of this article and consistent with VPCA certification, DIA is defined in the following manner. "Detection" is when the K-9 catches the scent cone of an odor and shows interest in that odor. The "indication" occurs when the K-9 changes his position as a reaction to the odor. The handler will see the K-9 close his mouth, his ears will be erect and the K-9 will square his body up to where the narcotic odor is permeating from the vehicle. Both the detection and the indication are instinctive behaviors. The "alert" is a learned behavior where the K-9 will come to a final response. The alert can be passive where the K-9 sits at the site of the odor or it can be aggressive where he would scratch at the site. (13) Once the K-9 "alerts" on a part of the vehicle, typically a search will ensue. (14)

THE LEGAL LANDSCAPE

Fourth Amendment considerations In addition to anticipating defense challenges regarding a K-9's capabilities, it is helpful to understand the legal issues raised by using K-9s for law enforcement purposes. Returning to the traffic stop scenario mentioned above, law enforcement K-9s typically aid in searches and seizures, and therefore United States Supreme Court cases addressing K-9 issues have considered K-9 sniffs against a familiar Fourth Amendment backdrop.

In United States v. Place, the first major Supreme Court case dealing with K-9 sniffs, the Court held that K-9 sniffs do not constitute searches under the Fourth Amendment. (15) In Place, the defendant, Raymond Place, roused the suspicion of law enforcement when traveling from Miami to New York City. (16) Over the course of an hour and a half, agents took Mr. Place's luggage from La Guardia Airport to Kennedy Airport, where the bags were subjected to a "sniff test" conducted by a trained narcotics dog. (17) The dog alerted on one of the bags and agents opened it to find cocaine. (18) At trial, Mr. Place moved to suppress the cocaine. (19)

The Court's analysis in...