Thursday, December 12, 2013

Field Records Remain Valuable in Establishing Reliability of Tracking Dogs (unlike Drug Dogs after Florida v. Harris)

The American legal history of tracking goes back to the dark days of slavery, as discussed by us elsewhere.  That tradition produced a case law, and principles of evidence, very different from what began to arise in the 1970s for narcotics and explosives detection dogs.  Tracking dogs were often trained as an economic activity, and well-known dogs could be brought over state lines—sometimes over several state lines—to track in notorious criminal cases.  There was also a long tradition of prisoners training dogs, dogs that would be used to follow the trails of fellow prisoners who tried to escape.  Since these dogs were often not owned by law enforcement agencies, legend was far more important than recordkeeping. A prison-trained tracking dog was involved in a recent case in Louisiana. 

A Robbery in Natchitoches

The Tobacco Warehouse Convenience Store in Natchitoches, Louisiana, was robbed at gunpoint by two men.  Two brothers, Corey W. and Andre Oliphant, were convicted in January, 2007.  The appeal described here involves only one of the brothers, Corey, who was sentenced to forty years at hard labor without benefit of parole.  The appeal came about after the federal district court for the Western District of Louisiana, on a habeas petition, essentially directed Louisiana to allow an appeal in the case. 

The evidence at trial is summarized as follows. 

On April 23, 2005, a man with a pistol entered the Tobacco Warehouse and took approximately $700 from store employees.  The robber was described as black, with a hood pulled over his head.  He also had a piece of cloth across his chin.  At approximately the same time, a retired detention officer, living near the strip mall where the Tobacco Warehouse was located, saw a man with a hood over his head run through his yard, jump a fence, and get into the passenger side of a white, older-model Lincoln.  He noticed the molding below the bottom of a door was missing.

Two hours later a police officer saw a Lincoln Town Car run a stop sign.  The officer put on his lights but had to chase the car until it stopped.  The car was being driven by Nicholas Oliphant and was registered to Odell Oliphant, respectively another brother of the defendant and his father.  Knowing of the robbery, the officer asked Nicholas if he had a gun in the car, which he admitted he did.  The officer put Nicholas in cuffs and took a nickel-plated, snub-nosed, 22 caliber revolver with a blued cylinder from the Lincoln. 

Detention Center Tracking Dogs

Nicholas said that his brother, Corey, could verify that he had been at home all day.  Corey was brought to the police station and gave an inconsistent account of his own whereabouts earlier in the day.  A determination was made to use tracking dogs in the investigation and Corey was asked to provide a sock, with which he complied.  A tracking team was brought to the Tobacco Warehouse.  The sock was given to Officer Roy Gallien, a dog handler assigned to a nearby detention center. 

Regarding the dogs, the Louisiana Court of Appeals states:

“According to Officer Gallien, the Detention Center has six tracking dogs including ‘Bo’ and ‘Trusty,’ the dogs used in this search, as well as a number of puppies in training.  He testified that ‘the mamma dog’ had come from Angola State Prison and that she had been bred to dogs from two other correctional facilities around the state.  The dogs are not certified in any capacity, and all of their tracking expertise has arisen from use at the Detention Center.  While Officer Gallien testified concerning at least two situations where the bloodhounds were useful in a search, he provided no information concerning the expertise of anyone involved in the training, including himself. Additionally, he acknowledged that the Detention Center keeps no records concerning the dogs’ use.” 

Officer Gallien also indicated that the dogs were trained by trustees of the Detention Center. 

At the Tobacco Warehouse, Officer Gallien let Bo and Trusty sniff the sock from Corey Oliphant at about 7:15, five hours after the robbery.  The dogs tracked separately “along a route similar to what” Officer Gallien would later learn was described by the retired detention officer.  In a later part of the discussion, however, the court states that the dogs “neither tracked the exact same trail and both terminated their tracking efforts at different locations.”  It is not detailed how far apart these two tracking endpoints were. 

Corey Oliphant was arrested for armed robbery.  The Lincoln was searched, producing two items made of panty-hose or stocking-type material. Searches of the car and the house, however, produced no clothing resembling that worn by the robber, and no money that might have been taken from the Tobacco Warehouse.  Witnesses did not pick pictures of Nicholas or Corey Oliphant from a photographic lineup.  One witness, pressed to pick the photograph closest to the robber, picked someone other than the brothers.  The retired detention officer did not identify anyone.  Nor did anyone identify the gun found in the Lincoln as the weapon used in the robbery. 

Appellate Court’s Consideration of Tracking Evidence

The defendant made five assignments of error, one of which was the admission of the bloodhound testimony.  The appellate court noted that there was no evidence of certification of the two dogs but added:

“[T]he only evidence of training was Officer Gallien's testimony to the effect that much of the dogs’ training was accomplished by inmates at the Detention Center. Officer Gallien was not offered as an expert in the handling of bloodhounds, and the record contains no evidence of his training or the training of anyone else associated with the dogs. While Officer Gallien did testify to incidences of successful use of the bloodhounds, he acknowledged that no records were kept concerning the success or failure rate of operations involving the bloodhounds. When the defendant objected to Officer Gallien's testimony and lack of expertise and documentation, the trial court overruled the objection, noting that the objection would go to the weight of the evidence instead of its admissibility.”

The appellate court referred to the admission of bloodhound evidence as “an uncommon occurrence,” in contrast to narcotics detection dog evidence.  While this is true, it perhaps overlooks the fact that the earliest criminal cases where dogs were part of the investigation, going back to the nineteenth century, involved tracking dogs.  The court noted that where tracking dogs have been used, issues with regard to them have not often been raised on appeal.  This is also true, and understandable.  As with cadaver dogs, the discovery of a body often makes the question of how it was discovered irrelevant.  If, say, a gun from a robbery is found by a dog along the path the robber used to flee the scene of the crime, there are commonly other ways to connect the gun with the robber.  

The court then reviewed older Louisiana case law regarding bloodhounds, but found the best statement of a proper foundation for bloodhound evidence in a 1980 Tennessee case, Tennessee v. Barger, 612 S.W.2d 485 (Tenn.Crim.App. 1980), which stated that the handler had to be available for examination and the dog must:
  1. Be a purebred and of a type characterized by acuteness of scent and power of discrimination.
  2. Be accustomed and trained to track human (as opposed to animal) scents.
  3. Be shown by experience in actual cases to be reliable in tracking.
  4. Have been placed on the trail at a spot where the suspect was known to have been or on a track which circumstances indicate he made.
  5. Have been placed on the trail within a period of efficiency, i.e., before a rainstorm or lengthy passage of time.
Applying these factors to the case before it, the Louisiana Court of Appeals said that “there is insufficient evidence to establish the qualifications of the bloodhounds used to track the defendant’s exit from the Tobacco Warehouse.”  The court emphasized the lack of certification, and aside from a few examples of success with the dogs, noted that Officer Gallien “could not assert any degree of overall tracking reliability because of a complete lack of records.” 

In any case, the appellate court concluded that “the trial court erred in allowing the bloodhound evidence to be introduced to the jury.”

The court might have also noted research indicating that tracking dogs are less able to distinguish the scents of people closely related than of strangers.  The fact that a number of brothers and a father were involved raises the possibility that the dog might have been tracking someone other than Corey. The court did consider that the tracking, which occurred five hours after the crime, might not have been in the dog’s period of efficiency.  Many dogs would be considered efficient up to 24 hours, however, or even beyond.  (For a discussion of the five elements listed here for admission of tracking evidence and their evolution over more than a century, see Police and Military Dogs, Chapters 3 and 5. Some of those elements were considered by courts during the early stages of case law on narcotics detection dogs.  Thus, some courts considered whether drug dogs, like tracking dogs, had to be purebred.  That requirement was put aside more quickly in drug dog jurisprudence, yet still receives mention in tracking dog cases.)

Certification of Tracking Dogs

The appellate court emphasized that the dogs were not certified in any capacity, that there was “no evidence of certification of the two dogs involved in the tracking,” and that there was “a lack of Louisiana jurisprudence on the subject of bloodhound certification.”  This, the court felt, was to be contrasted with the importance of certification for drug-detection dogs, for which the court cited numerous state and federal cases, including the Supreme Court’s decision in U.S. v. Place, 462 U.S. 696 (1983).  (There was no reference to the more recent decision in Florida v. Harris.)

Although the court felt the lack of certification was important, it apparently would not have excluded the bloodhound evidence had the five elements of Barger been satisfied.  Those elements do not mention certification.  Two of the five elements specifically relate to the facts of any case before a court—where and when the dog was placed on the trail.  The other three relate to the dog and its background—its breed (that it be purebred), that it was “accustomed and trained to track humans,” and it be “shown by experience in actual cases to be reliable in tracking.”  Thus, tracking cases often depend more on a dog’s actual production in the field than any certification.  Why this is so—and that it should be so—is worth additional analysis. 

Complexity of Tracking

In Florida v. Harris, 133 S.Ct. 1050 (2013), Justice Kagan compared field records to training and testing environments, stating:

“There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.”

The Justice observed that in the field it could be impossible to determine whether a dog’s alert, where no drugs were found, was genuinely false, or was rather an alert to a residual odor or an otherwise undetectable amount.  We will argue in a forthcoming law review article that training and certification environments often contain residual odors and trace amounts of target drugs, but for purposes of analyzing this case, and tracking in general, it is to be noted that the situation in which the dog is placed and the circumstances of the assignment are very different.

A narcotics detection dog, when deployed to sniff a vehicle or other location, produces one of three results: no alert, interest without an alert, or an alert.  For the most part, this is a binary analysis, alert or no alert.  The Supreme Court, in Florida v. Harris, said that field records “in most cases have relatively limited import,” adding that “[e]rrors may abound in such records.”  It is important to understand that, for any court analyzing a tracking case, this holding should not apply to tracking situations, where the dog’s choices cannot be described as binary.  In fact, the dog’s potential actions can cover a broad set of patterns, some of which are indicated in the following table. 

Where tracking begins:
Dog’s actions:
Evidentiary significance:
Scene of crime
No trail found
None or minimal

Trail followed but soon lost
May indicate direction perpetrator took on leaving scene

Trail followed leading to location where perpetrator may have entered vehicle and driven off
May be useful if evidence connects suspect with location or vehicle  

Dog finds item connected with the crime
Significant in verifying path perpetrator took after crime; item may have independent value

Dog leads to house or building perpetrator may have entered
May lead to warrant for search

Dog leads to individual who is potential perpetrator
Sometimes admitted as identification evidence (but see  Curran et al. finding that tracking may be accurate without identification at end of trail being accurate)
Dog loses trail but then resumes trail, perhaps even after handler has discontinued search
May excluded under some state requirements that tracking be continuous

Dog loses field trail but then is encouraged to resume work at entrance to police station, leading to suspect already under arrest
Sometimes admitted as station identification (improperly in our opinion)
Location where perpetrator or suspect was seen
Dog leads back to scene of crime
May be admitted concerning path perpetrator took after crime (a reverse track), though may also indicate perpetrator returned to scene of crime

It is evident that many of these actions are far from two-choice situations such as are faced by drug dogs, that a dog following a trail is making countless assessments of the source and direction of an odor, sometimes producing significant evidence that can stand in its own right.  This is not equivalent to the possibility of a dog alerting to residual odor in a narcotics case.  Finding items associated with a crime, such as a weapon used in the commission of the crime or items taken from victims of the crime, should obviously not be evidence excluded merely because the dog involved was not certified. (Finding such items may also occur during an article search.)

Further, tracking in the field is probably more controlled, in a scientific sense, than a training or certification test environment.  In a typical field deployment, the handler does not know at the beginning of the trail which way the dog will go.  Nor does he or she know at any point along the trail when the dog will change course.  It is possible that the handler in a training or certification situation will have some idea of these matters.  The dog may be tracking in an area where other dogs have tracked before.  The handler may have seen the instructor or tester place objects with the scent the dog is going to pursue.  A field assignment is, thus, often much more of a double-blind situation than a testing or certification course.  Consequently, field records of a tracking dog can be useful in assessing the dog’s reliability.

Also, because the tracking situation is not binary, there has seldom been an argument to correlate the results of tracking dogs to exclude those dogs whose deployments do not produce evidence.  A drug dog that alerts more than others in a department may be suspected of being cued, and the Supreme Court in Harris may have wanted to avoid having full-blown trials of dogs on this basis. Tracking situations are too diverse for such a simplistic analysis and there is no need to analogize tracking evidence to drug dog evidence on the issue of certification. 


The Supreme Court’s decision in Harris should not become a means of excluding valid field evidence in every type of police dog work.  Even less should it become a reason for not keeping complete field records, or for destroying them before they may have to be made available to defense counsel. 

Several months ago we analyzed a currency forfeiture action in which we discussed recent research on quantification of currency contamination by cocaine. Certain levels of currency contamination are expected on U.S. bills, not from the fact that most bills are handled by criminals at one point or another, but probably from mechanical currency counters distributing cocaine residue across bills that enter the machine.  When a bill has above a certain level of contamination, however, it has a significant probability of having been associated with a drug trafficker. (See Jourdan et al., 2013.)  If a dog alerts to it, the prevailing theory is that the dog is alerting to methyl benzoate, an unstable compound that disintegrates rapidly, so the alert of the dog indicates that the currency was probably in contact with cocaine in the previous two days.  This creates some forensic formulas:

         High residue + Alert = Drug enterprise contamination within 48 hours

         High residue + No alert = Drug enterprise contamination older than several days

         Normal residue + Alert = Recent contamination, perhaps innocent as from currency counter

These formulas oversimplify the possibilities, but do indicate why this kind of field alert evidence should be maintained, and should fit within the exception that Justice Kagan acknowledged in Harris where a “dog’s (or handler’s) history in the field … may sometimes be relevant….” 

For any court tempted to apply the training and certification logic of Harris to a tracking dog, these considerations should be taken into account before there is any knee-jerk dismissal of field evidence or a refusal to allow discovery of such evidence. The reliability of a tracking dog may be best established by field records, in contrast to the general devaluation of such records for drug dogs by the Supreme Court in Harris.  The failure to maintain field records in this case was a sufficient reason to reject the tracking evidence.  Records should be kept and even prison-trained dogs should have records kept of their deployments, though this case demonstrates that this has not yet happened in Louisiana.  The Louisiana appellate court is right to say that it should. 

Louisiana v. Oliphant, 2013 La. App. LEXIS 2386 (Ct.App. 2013)

This blog was written by John Ensminger and L.E. Papet.

Monday, December 2, 2013

Law Student Training Service Dogs Can Sue Law School for Refusing to Admit Dogs to Classes

Nicole Lara Shumate enrolled in Drake University Law School in Des Moines in 2006 and graduated three years later.  Shumate is a service and therapy dog trainer and founded a non-profit organization called Paws and Effect the same year she started law school.  It is not clear when she first tried to bring dogs in training to classes, but her complaint stated that the law school dean notified her in September 2009 that “access to law school facilities with a service dog in training would not be tolerated per the university policy.” 

Shumate brought suit in 2011, alleging that she had been denied access to classes “because she was assisted by a service dog in training.”  She also said that a professor had denied her admittance to a cultural event being held at a local church because she was accompanied by a service dog in training.  Finally, she argued that the law school directed hostility toward her and created a “poisonous learning environment.”  The trial court determined that Shumate came within the coverage of the Iowa disability statute, but held that the statute did not grant her a private right of action.  Therefore, that court granted the university’s motion to dismiss the lawsuit.  Shumate appealed. 

Iowa Disability Statute Regarding Service Dogs

Iowa Code 216C.11(2) states that a "person with a disability or person training an assistive animal has the right to be accompanied by a service dog or an assistive animal, under control," in places of public accommodation and transportation.The trial court determined that Shumate's training activities were covered by this statute. Drake University disagreed, referring to the definition of a service dog that applied in 2009, under which such a dog had to be “specially trained at a recognized training facility.”  Drake contended that the statute applicable at the time of Shumate’s attendance of law school did not intend “any and every service-dog trainer to be a member of the class of persons protected" by the statute. Presumably, Shumate’s Paws and Effect qualified as a “recognized training facility,” though the issue received no analysis in the appellate decision.  In 2011, the reference to training in the statute was revised to state that a service dog “means a dog specially trained to assist a person with a disability….” The university also noted that the title of Chapter 216C is “Rights of Persons with Disabilities,” indicating a legislative intent only to protect persons with disabilities, not trainers of service dogs without disabilities. 

The appellate court agreed with the trial court that Shumate fell within the class of persons protected by the statute, and added that “[e]nsuring access to public places and accommodations for persons training service dogs will increase the availability of skilled dogs for disabled persons, who will then be better equipped to participate in the ‘social and economic life’ of the community.”  The court elaborated that “[e]nsuring that service dog trainers have full access to places open to the public, and thereby creating a pool of well-trained dogs to assist disabled persons in navigating public facilities, advances the stated aim of chapter 216C.” 

Private Right of Action

The fact that the statute applied to Shumate as a trainer of service dogs was not the only hurdle she had to overcome.  She also had to demonstrate that she had a private right of action under the statutes cited.  It could, after all, be the case that only a district attorney or other official could bring a criminal action under the statute.  The trial court had, in fact, concluded that a simple misdemeanor remedy “communicated the legislature’s exclusion of a private suit for damages.”  

The Iowa Court of Appeals observed that the statutory right of “a person training a service dog to be accompanied by the dog at certain public facilities and places of public accommodation … is more than a general statement of policy; instead it sets out concrete requirements to allow access to trainers accompanied by service dogs.”  The appellate court concluded that the trial court “erred in finding the inclusion of a simple misdemeanor penalty ... revealed a legislative intent to deny a private cause of action,”  adding:

“The overarching purpose of chapter 216C is to guarantee persons with disabilities greater access to public facilities and wider participation in the social and business community, not to craft a criminal offense to punish those who exclude persons training service dogs from public places.”

The court stated that it “would be inconsistent with the underlying purpose of the chapter to pair these robust rights with the meager remedy of a simple misdemeanor prosecution.”  (The maximum penalty if the university were convicted of a misdemeanor would have been a fine of $625.)  The court continued that it “follows that allowing a service dog trainer to enforce this policy by bringing a private right of action, if denied access while accompanied by a service dog, is consistent with the underlying purpose of the statute.”

The Court of Appeals reversed the dismissal of Shumate’s petition and remanded for further proceedings.


The case is not over.  Shumate will have to support her claims for monetary damages and the university might still make a fundamental-alteration argument with respect to the presence of dogs in training in a law school environment.  This might be difficult, however, given that Drake appears not to have given Shumate much, if any, opportunity to have a dog in a class and demonstrate that it would not interfere with the class or other students. Had she brought one in, and had it been unruly and distracting, then the university would have had other arguments, but this is not stated in the facts as having happened.  If Shumate had been going to medical school, the sanitary requirements of certain environments would have allowed the university to exclude her dogs from those environments.  Law schools, however, are just classrooms with desks and a blackboard. 

Although I think the case is correctly decided, I have to say that when I was going to law school I would not have considered bringing a dog I was training with me.  I began law school at a time when cases were still recited.  A student called on to explain a case had to stand up, summarize the facts of the case and justify a position that it was correctly or incorrectly decided, then withstand sometimes half an hour of debate with a professor over the issues. (I once worked with a lawyer who had been a classmate of John Jay Osborn, author of The Paper Chase.  He assured me that he was in the same class as Osborn when the Harvard law prof Osborn fictionalized as Charles W. Kingsfield gave a dime to a student after a poor recitation and actually said, 'Here’s a dime.  Go call your mother and tell her you’re not going to be a lawyer.') I would not have wanted to have a dog at my feet, and thinking back on it, would not have wanted to risk the dog becoming restless or sensing my anxiety.  Nevertheless, that was a long time ago and law school is apparently somewhat more benign these days. 

Shumate v. Drake University, 2013 Iowa App. LEXIS 1152 (Ct.App. 2013)

Additional Note.  I received an email from a reader who pointed out that the law school dean did not notify Ms. Shumate to keep her dogs away from the school until 2009.  If she did not attempt to bring the dogs in the first two years of law school, the reader notes, she likely did not bring the dogs to classes where the severe structure I describe would have applied.  This is true.  Third year classes are often rather specialized, sometimes seminars, where a degree of informality is common.  If there are any further orders or opinions in the case, it will be interesting to learn more about when Shumate began trying to bring the dogs to classes.  We might also learn about the dogs themselves.  Were they nearly done with training, or were they only beginning to be trained?  This raises interesting questions.  Could a fundamental-alteration argument apply to dogs at the beginning of training but not to dogs about to go to work?  Also, could a fundamental-alteration argument apply to first-year Torts but not to a third-year seminar on the Law of Urban Planning?