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“Nagging” questions about accuracy of drug sniffing dogs didn’t invalidate probable cause finding

United States v. Larry Bentley, 7th Circuit Court of Appeals No. 13-2995, 7/28/15

A drug dog’s alert on Bentley’s car during a traffic stop was sufficient to establish probable cause to search in light of the standard established by Florida v. Harris, 133 S. Ct. 1050 (2013).

Police stopped Bentley’s vehicle after observing it cross into another lane on an Illinois highway without signaling. After stopping Bentley, the officer decided to call for a drug-detection dog named Lex. Once on the scene, Lex alerted, and the officers found close to 15 kilograms of cocaine in the vehicle. Bentley’s challenges to Lex’s accuracy are rebuffed because the district court properly applied Harris:

In pressing his challenge to the dog’s alert, Bentley makes two principal points. First, he contends that Lex’s past performance in the field suggests he is particularly prone to false positives (i.e., signaling to his handler that there are drugs in a vehicle when there are not). He has a point. Lex alerts 93% of the time he is called to do an openair sniff of a vehicle, and Lex’s overall accuracy rate in the field (i.e., the number of times he alerts and his human handler finds drugs) is not much better than a coin flip (59.5%). The Supreme Court, however, recently rejected a proposed rule that would have treated the dog’s field record as a “gold standard.” To the contrary, it said, the record is of “relatively limited import.” Florida v. Harris, 133 S. Ct. 1050, 1056 (2013); …. Instead, “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Harris, 133 S. Ct. at 1057. In order to assess whether the police adequately trained their dog, the Harris Court instructed trial judges to hold a probable-cause hearing:

If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.

Id. at 1058. The Court did not, however, suggest what weight courts should give to different types of evidence, nor did it offer any tie-breakers for district courts to use.

The district judge dutifully followed the Harris Court’s instructions: he let the government submit evidence about Lex’s training. That evidence included the dog’s success rates in controlled settings as well as testimony from the dog’s handler and the training institute’s founder. The judge also allowed Bentley to challenge those findings, to crossexamine the handler and the Canine Training Institute’s (CTI) founder, and to put on his own expert witness. The judge then weighed all the evidence, decided to credit the government’s experts over Bentley’s, and decided that Lex’s alert was reliable enough to support probable cause. Our review of a district court’s choice between one version of the evidence and another is typically very deferential (even if experts are involved), and we are given no reason to deviate from that approach here. (Slip op. at 8-9).

The court acknowledges the “[n]agging questions” about the accuracy of dog sniffs for drugs and other substances (slip op. at 1) and that Bentley’s evidence “put on a good case” for Lex being “at the back of the pack” in terms of accuracy (slip op. at 10). Indeed, the dog’s trainer was embarrassed by Lex’s 93% alert rate (which was perhaps engendered by an improper reward routine) and Lex was removed from service for a while because he failed two simulated vehicle searches. (Slip op. at 10). But even if Lex’s mixed record is a matter of concern, under Harris’s totality-of-the-circumstances test, a 59.5% field-accuracy rate is good enough to support a finding of his reliability and thus to allow his alert to constitute a significant piece of evidence supporting the ultimate conclusion of probable cause. (Slip op. at 10-11).

The court also rejects Bentley’s arguments that the initial traffic stop was unreasonable and that the evidence was insufficient to prove he possessed the drugs found in the car.

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