The other day I was working with a drug dog expert who was reviewing a video from a police drug stop on Interstate 80 in Lincoln, Nebraska. After having reviewed the video and the training records of the dog, the expert was able to provide me with a great deal of ammunition to attack the government’s case, specifically whether the drug dog was properly trained and whether the drug dog actually indicated to the odor of narcotics. During our conversation, I asked the expert about the “odor proof” bags in which the marijuana was stored and whether the odor proof bags worked. In this case I believe the bags were the LOKSAK Opsak bags. The expert told me that the odor proof bags in a controlled setting do work and that he has tested them. Unfortunately, the argument that the dog did not indicate because odor proof bags were used seldom wins.
The expert explained that he used laboratory precautions to put marijuana into the odor proof bags using rubber gloves and was able to ensure no contamination on the bags. The expert then put the odor proof bags filled with marijuana in a car and ran a drug dog around the car. The dog did not indicate to the odor of marijuana. He replicated the experiment with other types of narcotics such as cocaine, methamphetamine and heroin and the dog did not indicate. When the expert told me the detailed precautions he put into doing this experiment to ensure there was no contamination, I was impressed with his diligence and scientific approach.
I informed the expert that often when I represent individuals traveling on the interstate that transport marijuana, methamphetamine or cocaine, the drugs are either heat sealed or placed in odor sealed bags, but yet the dogs still indicate. The expert explained that sometimes manufacturers that advertise odor proof bags do not provide odor proof bags and it is very easy to contaminate the bags. Furthermore, often individuals stopped on the interstate have in the past have had other drugs or other paraphernalia in the vehicle. Obviously from a criminal defense attorney’s perspective the argument is that the dog never indicated because the drugs were in an odor proof bag, thus the dog was cued by the handler or the dog was not reliable or the dog was trained always to indicate to the odor of narcotics because the dog is always rewarded any time the dog indicates narcotics are in the vehicle. The dog is rewarded prior to law enforcement searching the vehicle so essentially the dog is rewarded for the behavior of indicating to the odor of narcotics when sniffing a car regardless of whether drugs, marijuana or any other drug is actually found. The expert indicated this is certainly possible and can happen in certain situations.
In another discussion with the expert about whether the drug dogs are actually alerting to a narcotic or simply displaying behavior the officer wants to see so that they can be rewarded, we talked about a concept called detailing. Detailing is a yes or no sniff. The handler directs the dog to a specific location and either the dog indicates to the odor of narcotics or he doesn’t. I have found through deposing and cross-examining some officers that not all dogs that get certified are able to detail. This is troubling. If a dog cannot pass a yes or no test, how do you know if the dog actually alerted and then indicated to the odor of narcotics after being walked around a car three or four times without indicating? On Interstate 80 it is common to see drug dogs walking around a car for two or three laps before the drug dog actually alerts and indicates to the odor of narcotics. The expert explained to me that this is cause for concern because it may give the dog the impression that the handler is going to walk him around the car until the dog alerts or indicates. The importance of a dog being able to detail is you know whether the dog can or cannot indicate to the odor of narcotics. Obviously if you direct the dog to a specific location to have the dog sniff and the dog does not indicate when drugs are there or indicates when there is no odor of narcotics present, you certainly know that the dog may not be reliable.
Getting back to the bags, the bottom line is odds of contamination are pretty good and arguing in court that there is no way a dog could have smelled through the odor proof bags will not likely be successful because the prosecutor will have a counter argument that the vehicle in which the drugs were traveling in may have been used to transport drugs in the past and may have contaminated the interior of the car, that the cash found in the car may have had the odor of the narcotics, or that there may be contamination on the outside of the bag.
If you want to challenge a drug dog search, unlawful arrest or and Fourth Amendment violation, contact Berry Law Firm.