Benny, the dowsing rod used by Oregon police officer Brian Hulke to “detect” the odors of cannabis, methamphetamines, cocaine and heroin, has a spotty record of hits and misses. That didn't stop the Oregon Supremes from affirming his use anyway in a decision handed down Thursday.
Kudos, first, should go to justices De Muniz, Durham, Balmer, Kistler, Walters and Linder for reviewing State v. Foster and State v. Helzer in an attempt to create some sort of standard for trial courts in determining when a “drug dog” alert can constitute probable cause for a warrantless search. However, now that the standard has been established, the justices have created a system of perverse incentives that completely disregard the actual efficacy (or inefficacy, as the case may be) of so-called “drug dogs.”
Benny, which “alerted” to Foster's car, and Babe, which “alerted” to Helzer's car, have similar training and identical certification from the Oregon Police Canine Association (OPCA), a private training and certification outfit. The difference between the two “alerts”, according to the justices, is better trial testimony about Benny, his training program, and the OPCA certification.
The justices specifically wrote that an “alert” (along with officer suspicions) constitutes probable cause for a search if the officer who determines that the dog “alerted” gives good testimony. Otherwise, it's not PC.
The justices go out of their way to educate the unwashed masses (of, presumably, lawyers) on how PC works. Suspicion of seizable items doesn't have to be perfect, they say, just probable. Then, they proceed to throw out any notion of probability with respect to the dogs.
Prior to the trial, Benny and Hulke had been called out on 63 cars. Benny “alerted” on 60 of them, with a field record of subsequent searches finding seizable items 66% of the time. The other 34% of the “alerts” weren't false alerts, the justices wrote, but probably due to residual odors being present. Benny, it seems, is infallible.
That notion is bolstered by testimony at trial of Benny's OPCA certification provided, conveniently enough, by an OPCA “master trainer.” That testimony described a poorly-designed blind trial that 25% of “trained” dogs (including Benny) fail the first time. The passing standards require 100% accuracy in indoor tests and 90% accuracy in outdoor tests.
The only third-party testimony at trial regarding the OPCA training and certification questioned the reliability of the methodology and tests, however, the justices decided that testimony about certification is what's important in determining probable cause for a search, not the individual dog's field record.
In the field, Benny is only called out when police have a strong suspicion that seizable items may be present, but perhaps not enough suspicion to constitute PC. At trial, one of the officers that pulled Foster over testified that they probably wouldn't have had PC if Benny had not “alerted.”
So, Benny's high “alert” rate on vehicles can easily be explained by Hulke's foreknowledge of other officers' suspicions regarding the subject vehicle. The justices reject the scientific notions of a Clever Hans effect or Pavlovian response because, well, the “expert trainer” said that was trained out of the dog.
Although the justices found Benny's 66% record “sufficiently reliable” what is astounding is that even given their strong suspicions of the presence of seizable material, the officers, and Benny, are wrong 34% of the time. That alone is enough to label Benny a dowsing rod in the hands of a “sensitive”, yet the justices dismiss this claim.
While it is true that no record of “alerts” that are false positives and false negatives can be kept, the fact that the unknowable is unknowable does not constitute evidence of a “drug dog's” efficacy. Still, the justices write as if it is.
Anyway, the justices conclude, what's important is that the “master trainer” described the rigorous certification of Benny at trial. They reject the defendant's notion that the certification exam may be flawed (which, based on the description, it certainly is) as well as expert testimony regarding the unreliability of the training methods and testing used by OPCA.
As all purveyors of woo, OPCA and Code Three Canine (the outfit which trained Babe) studiously avoid double blind trials by, or at least audited by, third-party researchers. While such a trial could be conducted by, say, a defense attorneys' group, the results of the trial would end up in a Catch 22. That is, the mystics can always claim that the conditions are too stringent, or the dogs used aren't the same dogs, or the energy in the room was negative.
What is clear is that courts, including the Oregon and US Supreme Courts, have bought in to the notion that “drug dogs” serve a useful purpose and, indeed, are even physiologically capable of the super-canine feats attributed to their (admittedly more sensitive than human) noses.
However, under the standard now adopted by the Oregon Supreme Court, a school could train human “sensitives” and certify them to detect the “aura” of drugs and other contraband. As long as the training and certification could be testified to in court, Oregon police would be free to also use that “detection” as probable cause for a warrantless search.
Don't laugh. It wouldn't be the first time that true believers in the religion of state bought into woo, and certainly wouldn't be the last.
But, consider this. If the “sensitive” alerted on all 63 cars Benny had sniffed, the “sensitive's” record would be comparable to Benny's. However, if the “sensitive” took a pass on just a few of the iffier cars, he could easily have a field record far surpassing Benny's “sufficiently reliable” 66%!
In fact, although 66% sounds like it's greater than chance, far from being “sufficiently reliable”, it's a horrible record, one which would be almost equaled by the officers' mere suspicions.
While hailed as creating a burden of proof for Oregon prosecutors, in reality the Supreme Court justices missed a golden opportunity to rid the state of another form of mysticism entirely.