Argos works fast. If he were off the leash, the way he usually works, he would find the dope in a matter of seconds, far too fast for the purposes of this demonstration.
Argos, a 12-year-old Belgian Malinois, was showing off his drug-sniffing skills after coming under scrutiny recently. Defense attorney Walter Smith filed a motion to suppress a pound of marijuana that was allegedly seized from one of his clients after a traffic stop last year.
He tried to convince Judge James Fensom that Argos has a history of finding drugs where there are none, and that Argos in particular – and the Bay County’s Sheriff’s Office’s K-9 Unit as a whole – is unreliable.
Smith’s argument is based on a Florida Supreme Court opinion from last April. The court decided an alert from a dog that drugs are present is not enough to establish probable cause for a warrantless search. A dog may be trained and certified to detect drugs, but it cannot testify in court.
In the absence of uniform statewide standards for training and certification for drug-sniffing dogs, the burden falls to the state to provide evidence that the dog is reliable.
“If the dog’s ability to alert to the presence of illegal substances in the vehicle is questionable, the danger is that people will be subjected to searches of their vehicles and their persons without probable cause,” the court said.
The opinion suggests police should keep track of an animal’s field performance.
“If an officer fails to keep records of his or her dog’s performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs,” the opinion says.
“The Harris case, when it came out, created a lot of confusion,” said Lt. Kevin Francis, who supervises the BCSO’s canine unit. The ruling told officers what to do, but not how to do it.
Francis and Bill Lewis, who is general counsel for the Sheriff’s Office, looked at the opinion and decided they were covered. The problem in the Harris case, Lewis explained, was there weren’t records to document the K-9 unit’s performance in the field, but the BCSO has been keeping field performance records all along.
“The problem with Harris and these other cases is they didn’t have the records,” Smith said, “but here in Bay County, we have the records.”
Smith examined BCSO records from Argos’ performance in the field and found them lacking, possibly even misleading, he said. Some of the records contained information that would allow someone to independently verify the findings, but many did not.
“The problem with the records is you can’t follow them up,” Smith said. “They’re kind of dummy records. I’m not going to say they’re false or fictitious, but they lead you to something that’s not really there.”
Smith said the records he has indicate drugs were seized or arrests were made when neither actually happened. Or, a dog might alert to trace amounts of marijuana, and the search will lead to the collection of drugs the dog isn’t trained to detect.
“Since no arrest is made for possession of marijuana, it is impossible to discern whether the dog actually alerted on small amounts of marijuana, or whether the dog falsely alerted, and investigators benefited from the false alert, by discovering prescription drugs,” Smith explained in the motion.
The Sheriff’s Office argues that Smith cherry-picked the records his research is based upon and he’s only telling the part of the story that best serves his client.
“The K-9 report is only part of the story,” said Maj. Tommy Ford.
For reasons of organization, K-9 reports are filed under a different case number, Francis explained. Additional information could have been reported in an incident report with a different case number, and, to protect the integrity of an investigation, even that report might not have all the information, said Capt. Ricky Ramie.
Same data, different conclusions
The two sides look at the same canine performance data and reach drastically different conclusions.
Several years ago, the BCSO K-9 units swept the parking lots at several local high schools. At Bay High School, according to records, the dogs sniffed 85 cars and alerted on 10. Those cars were searched; four searches yielded no contraband, but six turned up something, mostly marijuana.
By the BCSO’s calculations, the dogs were accurate 95 percent of the time because the 75 cars the dogs didn’t alert to were presumed clean. But the way Smith sees it, the unit was, at best, 60 percent accurate, because only six of the 10 cars that were actually searched turned up any contraband.
“When they say they’re 90 percent accurate, based on their calculations, they are 90 percent,” Smith said. “It’s just a matter of how you do the calculations.”
Based on the records for several high school parking lot sweeps, Smith figures the dogs are accurate 27 percent of the time at best, and only 5 percent at worst.
The BCSO already goes above and beyond what’s required of them. As the Supreme Court noted, there are no standards for training and certification for drug dogs, so theoretically any old hound could do the job. But the BCSO’s dogs are certified by the North American Police Dog Association.
“It’s the best organization we can find,” Francis said. “In my opinion, it’s the best one out there.”
The dogs and their handlers train every week. They train at airports and seaports, on buildings and vehicles. They do sweeps of packages for UPS and FedEx. Ford said it’s the best unit of its kind in the state.
Smith is representing Cody Bennett, who was arrested after a traffic stop on Thomas Drive almost a year ago after a warrantless search based on an alert from Argos.
Argos first alerted to the driver’s side window, but a subsequent search revealed no drugs. Smith’s position is the first false alert should have “dispelled any probable cause” to believe Bennett had drugs.
The sniff continued, and Argos again alerted, this time to the trunk, where deputies found about a pound of hydroponic pot so stinky Argos probably wasn’t even necessary. Bennett was arrested and charged with possession of marijuana with intent to distribute, and he is scheduled for trial next month.
After two hearings, in which Francis and Duggins testified Argos was reliable 90 percent of the time, Judge Fensom denied Smith’s motion. Duggins testified that the marijuana they seized was so odorous that if it were in the courtroom, everyone in the room would’ve smelled it.
Duggins also said Argos has alerted to the presence of drugs every single time he’s been deployed in his eight years, with one exception.
In the most recent hearing, Smith’s argument played well in front of a room full of defendants, many of whom were there on drug-related charges. At one point a bailiff told the room that anyone who could not contain themselves would be removed from the courtroom.
But while Fensom agreed the documentation supporting Argos’ reliability was imperfect, he found that the search was legal because there was probable cause “based on the totality of the circumstances,” the legal standard for determining probable cause.
“I wasn’t overly optimistic that the judge was going to see it my way,” Smith said after the ruling.
BCSO officials said Fensom’s decision vindicated the K-9 unit, while Smith plans to have Bennett plead no contest to possession of marijuana with intent to distribute and appeal to the First District Court of Appeals.