Court Would Not Pick Up Bill of Drug Dog Expert for Defendant

When charged with a narcotics offense, the chain of evidence often includes an alert of a drug dog. A significant proportion of traffic stops that balloon into drug busts involve a canine sniff of the vehicle. The sniff justifies a further search, uncovering drugs, paraphernalia, and/or large amounts of cash. The defendant may attack the alert of the drug dog, though this will seldom work unless there has been a very long delay before the dog was produced, or perhaps if the only thing uncovered in the subsequent search is a large amount of cash. In moving to suppress the drug dog evidence or the fruits of that evidence, the accused may request funds from the court to retain his own expert when he cannot afford one. Such a request was made by Willard Wayne Howard in a case arising in Tennessee.

The facts of U.S. v. Howard are as follows. On December 12, 2005, officers of the Bradley County, Tennessee, Sheriff’s Department pulled over Antonio Benitez, who was driving a Volkswagen Passat. Five kilograms of cocaine were discovered in a secret compartment in the car, but this search was not at issue in the case. Benitez was taken to the sheriff’s office where one of the cell phones that had been found in the car rang and was answered by a deputy. The deputy told the caller that he worked for a towing company and that the Passat had been wrecked. He gave the caller the cell phone number of another deputy, but said that the number was that of the towing company. Amy Cornwell, Benitez’s girlfriend, called that number and said that she and her stepfather would drive to Tennessee to pick up the Passat. Two days later she arrived with Willard Howard in a Chevrolet Suburban. She went to the wrecking company where a deputy named Renner was impersonating an employee. Renner said that he had found a secret compartment in the Passat but that he would not tell the police if she gave him $500. She said she did not know what he was talking about. Renner arrested her anyway, Other officers arrested Howard and led a drug detection dog named Titan around the Suburban. Titan alerted at the rear door of the car. A search revealed nearly $100,000 in cash.

A magistrate determined that the arrest of defendant was illegal, and denied Howard’s motion for an appointment of an expert. The federal district court for the Eastern District of Tennessee held that the evidence from the search of the Suburban could still be admissible if Titan’s alert was an independent source for the search of the vehicle, i.e., was not dependent on the illegal arrest. Based on this conclusion, Howard moved for reconsideration of the denial of the motion for appointment of an expert. The expert Howard wanted was Robert Gonzalez, who had for five years been the Branch Manager of the 37th Security Forces on Lackland Air Force Base in Texas. In this capacity, Gonzalez managed all military working dogs on the base. He was also selected by the Air Force Headquarters Security Police to be the Team Leader, trainer, and coordinator of the U.S. Customs Canine Drug Interdiction Force for Puerto Rico. Gonzalez was clearly qualified, but the issue was whether the court should pay for him since Howard apparently could not. (It is not explained whose cash the $100,000 was or why Howard was in need of funds.)

Howard argued that an expert was needed to determine if the National Narcotic Detector Dog Association (NNDDA) had an acceptable certification process, to determine the dog’s performance and training records, and to determine if Titan had reliable alerts. Titan was certified by the NNDDA. The court then considered what use Gonzalez could be to Howard in this regard and said that there was no evidence that Gonzalez had experience with this particular organization, though he had considerable experience with detection dogs. Implicitly the district court signaled that it saw no point in a dispute between a large national organization and an expert with a different background. Nor could Gonzalez describe the alerts of Titan, a dog with which he had never worked.

The magistrate subsequently determined that the independent source doctrine applied to admit the search of the Suburban. U.S. v. Howard, 448 F.Supp. 889 (ED TN 2006); magistrate’s report and recommendation (2007). The NNDDA website provides certification standards for police dogs, narcotics detection dogs, explosive detection dogs, and cadaver dogs. As of 2006, the NNDDA had between 2,500 and 3,000 handler members.

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Cadaver Dogs Help Solve Cold Case

Michelle Dorr was six years old on May 31, 1986 when she disappeared from her father’s house in Silver Spring, Maryland. Carl Dorr, Michelle’s father, reported her missing at 4 o’clock that afternoon. He told the police that he was not exactly sure when he had last seen his daughter, but thought it was shortly after lunch, about 1 o’clock. He seems to have left her unsupervised in the backyard for several hours before noticing that she was no longer there. Carl Dorr was immediately the prime suspect. The police interviewed him aggressively, which did not allay their suspicions. They kept him under surveillance, tapped his phone, reviewed bank and video rental records, questioned his employers, co-workers, friends, neighbors, and family. Dorr had a series of nervous breakdowns. He announced that he was Jesus Christ and said he could bring Michelle back to life. He was hospitalized, but suffered another breakdown on release. He made incriminating statements, saying once that he had suffocated Michelle and put her body in a sewer. He also said he had buried her near his father’s grave. Michelle’s mother appeared on America’s Most Wanted and said her ex-husband had killed their daughter. Carl saw the television program and went to his ex-wife’s house. He demanded to be let in and said he knew where Michelle was and that the truth would burn a hole in his wife’s soul.

Lost in the police files accumulated after Michelle’s disappearance were some other pieces of evidence that did not point to Carl Dorr. Neighbors of Carl Dorr named the Binders had seem something that did not seem so significant at the time. Their neighbor on the other side, Geoffrey Clark, had been allowing a ne’er do well brother named Hadden to stay with him. Hadden was moving out of his brother’s house the day of Michelle’s disappearance, and the Binders, when asked if they had seen anything unusual, said they had seen Hadden loading a duffle bag and a trunk into his white pickup. But this was no later than 12:20, a time fixed by the Binders, because they had left then or before to attend a baptism. Loading a duffle bag was not, however, very suspicious. First, Hadden was moving. Second, this had occurred at least forty minutes before Carl Dorr said he had last seen his daughter.

Hadden was intereviewed twice by the police. The first time was nine days from Michelle’s disappearance and was not informative. The second was three days later. In the second interview, Hadden asked to be excused and went into a bathroom where he cried and vomited. When he returned an officer asked him what he had done to Michelle. “I don’t know,” he replied. “I may have blacked out. I may have done something.” Hadden asked to speak to his psychiatrist. He was permitted to leave the police station. Carl Dorr remained the prime suspect.

In October 1992, over six years later, a 23-year-old woman named Laura Houghteling disappeared. Hadden had worked as a handyman at her family’s residence and Hadden became a suspect in this crime, which revived the memory that he had been interviewed in Michelle Dorr’s disappearance. On October 31, 1992, Hadden arrived at his sister’s home in Rhode Island, where he complained to her that the police were trying to pin a crime on him because he was homeless. That night he went to his family’s plot and camped there for the night. When he returned to Maryland, Hadden Clark was interviewed concerning the disappearance of both Laura and Michelle. Officers went to the cemetery where Hadden had spent the night and found the soil near the family plot had been disturbed. Similar soil was found in Hadden’s truck.

A cadaver dog named Dan came with his handler, Massachusetts State Trooper Kathleen Barrett, to the cemetery. Dan alerted to an area near the headstone. A second cadaver dog named Panzer also alerted to the same spot. Hadden Clark pled guilty to second degree murder in Laura’s death and was sentenced to thirty years in prison. While in prison, Hadden gave two cellmates a description of how he had killed Michelle six years before Laura. He said he had found her playing in his niece’s room (the niece and her parents were not home at the time) and cut her up with a butcher knife. He told his cellmates that he had put her in a trash bag and then in a duffle bag which he had loaded in the back of his truck. This was the event noticed by neighbors, but initially ignored because it was inconsistent with the time frame of Michelle’s disappearance as given by her father.

Because of the description of Michelle’s death that Hadden gave to his cellmates, the room where he had described killing her was sprayed with luminol, which causes blood to become luminescent. There was a lot of blood, consistent with Hadden’s story. Curiously, DNA testing eliminated Michelle as the source of the blood.

The police theorized that Hadden had removed the body of Michelle the night he spent at the cemetery after he became a suspect in Laura’s death. Although this was not established on the record, Hadden was finally convicted of second degree murder in Michelle’s death. Michelle’s body was later found, alerted to by Panzer. Clark v. State, 140 Md.App. 540, 781 A.2d 913 (Md.Ct.Spec.App. 2001). See Alec Wilkinson, “A Hole in the Ground,” The New Yorker, p. 64 (September 4, 2000).

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Are Breeding Programs Reducing Genetic Variability?

There are various conflicts in the dog world. Choke vs. no-choke in dog training. Treats vs. other rewards. One that I’ve encountered more in the last few years are disputes between those who want to keep breeds pure vs. those who believe in crossing in other breeds. Some remarks near the end of Adam Miklosi’s wonderful book, Dog Behavior, Evolution, and Cognition (Oxford University Press 2007) are worth considering:

"Today dogs are subject to a dangerous ‘game’ which involves irresponsible playing with one tiny aspect of their phenotype: the form. This leads to two important problems. Breeders are encouraged to inbreed in order to fulfil the requirements which lead to genetically homozygous populations, and the absence of selection for behaviour leads to the disappearance of breed-specific traits. Thus this trend brings nothing good for dogs in terms of their evolution because genotypes are being lost and genetic variability is decreasing."

Miklosi then cites P.D. McGreevy and F.W. Nicholas, whose article, “Some Practical Solutions to Welfare Problems in Dog Breeding,” 8 Animal Welfare 329-341 (1999), argued that breeds should not be considered closed populations, and dogs from other breeds should be crossed in. This would not change the appearance of the breeds, as breeding programs can create virtual breeds, as was done with the Pharaoh Hound (described by Miklosi, in another section of his book, as “probably a fake ‘look-alike’ recently created from different types of dogs”).

My father, M.E. Ensminger, would have agreed with the notion of breeding in animals from other breeds. In his treatises on Animal Science, Beef Cattle Science, and other books, he placed a high value on “hybrid vigor,” recommending that breeding programs regularly cross in other breeds to improve production. He had the advantage of working with the livestock production field where appearance is important, but other qualities, such as the amount of muscle that becomes hamburger, were even more important. Consequently, I'm not aware that he encountered much resistance to his arguments. (His books are still in print, being revised under a trust arrangement by staff at Iowa State University.)

Those concerned with dogs losing behavioral characteristics as a result of crossing in other breeds should consider the research of Kenth Svartberg, a Swedish scientist, who studied breed differences using tests of over 13,000 dogs in 31 breeds. Svartberg concluded that selection was often being dominated by show dog breeders, and that their programs were producing good show dogs, but that the behaviors correlated with the breed origins, often inconsistent with what is required for a show dog, were disappearing. Kenth Svartberg, “Breed-Typical Behaviour in Dogs—Historical Remnants of Recent Constructs?” 96 Applied Animal Behaviour Science 293-313 (2006).

My aunt, Lee Watts, was a well-known poodle breeder in Canada. She used to say that if you didn't get a purebred dog, "you don't know what you're getting." I still hear it when I go to obedience classes. What she didn't know, and what Svartberg's research indicates, that you may be getting the right form, but as time goes on you're not getting the same complex of behaviors. Domestication does not stay still for other factors, even if the form stays still.

Additional Note.  The effect of letting show appearance dominate the breeding programs of a particular dog was decried long ago. Captian von Stephanitz, discussing the Scotch shepherd dog or collie in The German Shepherd Dog in Word and Picture(1923), noted that it is divided into "two varieties, a short smooth haired, and a long smooth haired kind, from which originated the long haired dogs so prized by the fancy breeders…. In the Shetland Islands, where the dwarf horse is bred, there is a dwarf variety of this collie.”  He then says a picture of a long haired dog that was “a prize winner of some reputation, shows how far one-sided and exaggerated breeding may go till it becomes unnatural and a caricature.  The collie of the fancy dog breeder is now only bred for beauty and is kept for luxury and show; with his slender small head and overbred face drawn out into an overlong nose—(this part from the tip of the nose to the division in the forehead is much longer than the cranium, while the proportion should be the reverse). Then there is the carriage of the ears, where only the upper third of them should tip over; but must only droop over that much, otherwise it is considered a great fault—(to the fancy breeder the erect eared Scotch dogs such as are also seen today are villainous rogues, worthy of death), and in conclusion the hair is everything…. The daily ‘toilet’—here the word must be understood in the English sense—of a collie beauty takes hours to perform; especially before an Exhibition.”

After discussing the show preparations that he finds offensive, Stephanitz then delves into the uselessness of the dog for real work:

“He lives more on the good reputation built up by the yeoman services of his ancestors, which he no longer knows how to perform. That is the meaning of the vacuous appearance of the shallow, unintelligent, ant-eater-like too elongated head…. The present day fancy Scotch dog with his slender needle like sharp teeth can tear very savagely and make serious wounds, but these qualities do not fit him for service with flocks and hers; and further, he lacks the strength necessary to stop and turn a stubborn sheep.”

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Psychiatric Service Dog Society Gets Transportation Department to Rethink Air Carrier Access Rules

The Department of Transportation has taken the somewhat unusual step of publicizing some criticisms that have been raised concerning its 2008 revision of the air carrier access rules (73 Fed. Reg. 27614, May 13, 2008). The criticisms come from the Psychiatric Service Dog Society (PSDS), which criticized 14 CFR 382.117(e), which reads as follows:

(e) If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker) stating the following:
(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);
(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination;
(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and
(4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.

The Department of Transportation notes that PSDS criticizes that failure of the regulations to distinguish psychiatric service dogs from emotional support animals. This is a valid objection in my opinion, but in the interest of full disclosure it is appropriate that I acknowledge that I have co-authored with Dr. Joan Esnayra, founder of PSDS, a letter to Treasury and the IRS regarding the deductibility of service dog expenses (published in Tax Notes, August 24, 2009; contact me at jensminger@msn.com for a copy). PSDS argues that by classifying PSAs with ESAs, DOT is effectively distinguishing PSAs from other service animals and imposing additional requirements on handlers of PSAs that it does not impose on handlers of service animals for the physically disabled. PSDS notes that this will encourage users of PSAs to claim physical disabilities in order to avoid the additional requirements of the regulations.

Many people with mental health-related disabilities use general practitioners and do not receive treatment from licensed mental health professionals on a regular basis. The rule lists only psychiatrists, psychologists, and licensed clinical social workers as examples of licensed mental health professionals. Obtaining a letter from a mental health professional would be particularly burdensome for individuals who do not have medical insurance or access to affordable medical care. Providing an airline 48 hours advance notice (14 CFR 382.27(c)(8)) of a passenger’s intention to fly with a PSA is also difficult or impossible in certain short-term situations such as family or medical emergencies, and would exacerbate the mental health professional documentation issue. .

DOT paraphrases one PSDS position as follows:

The rule violates the medical privacy of PSA users by requiring confidential medical information to be provided to airline personnel. Moreover, the rule makes no provision for the confidential treatment of this information once it gets into the airline’s hands, and fails to answer questions concerning the security, storage, or use of the information. PSDS expresses the concern that the Transportation Security Administration could gain access to the information and require additional security measures (e.g., secondary screening) for persons identified as having mental health-related disabilities.

DOT responds that it does “recommend that the carrier take steps to safeguard this information, such as maintaining it in a separate confidential file for the same time it retains the passenger’s reservation record for the flights involved.” DOT specifically asks for comments about this issue, and seems amenable to a more restrictive policy. This should not be a difficult modification, since DOT could require airlines to provide such safeguards as would assure that records are not available for other purposes than to verify a passenger’s status, and not available to staff beyond those needing to access such information.

The release indicates that DOT “has not decided whether to grant the petition by initiating rulemaking action or deny the petition and retain the provisions without change.” Nevertheless, the release concludes with a number of options that the agency might consider, including targeted modification of certain provisions. The issues raised by PSDS are significant. It is to be hoped that DOT will consider some modifications to the final rules. Comments may be submitted online, by mail, fax, or courier. Instructions are contained in the Federal Register, 74 Fed. Reg. 47903, left column. Online is easiest: just go to http://www.regulations.gov and follow instructions using DOT Docket ID # OST-2009-0093. Comments must be received by December 17, 2009.

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