E.D.Wis.: Dog handler’s belief that something might be found was not sufficient to invalidate the dog’s alert

Dog handler’s belief that something might be found was not sufficient to invalidate the dog’s alert. United States v. Guidry, 2013 U.S. Dist. LEXIS 116205 (E.D. Wis. July 1, 2013):

Here, Guidry admits that Bud has been “certified” by a “bona fide organization.” (Def. Op. Br. at 11.) Also important is that Officer Saeger does “handler proofing” training to make sure she doesn’t cue Bud in any way. Nevertheless, Guidry argues that this particular indication was not reliable. Specifically, Guidry asserts that “[b]ecause handler beliefs affect scent detection dog performance, it’s entirely possible that Saeger ‘cued the dog (consciously or not).'” (Def. Op. Br. at 15 (quoting Harris, 133 S. Ct. at 1058).) In support of this assertion, Guidry notes that Officer Fickett told Saeger about his past experience with Guidry and said that it was a “good night to be working,” meaning that they might “catch” Guidry this time. Guidry also cites a 2010 study concluding that handler beliefs contribute to “false alerts.”fn2

FN2 See Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011), available at http://www.springerlink.com/content/j477277481125291/fulltext.pdf. For a critique of the study, see, e.g., John J. Ensminger & L.E. Papet, Cueing and Probable Cause: Research May Increase Defense Attacks on and Judicial Skepticism of Detection Dog Evidence, Animal Legal & Historical Center, Mich. St. U. C. of L. (2011), http://www.animallaw.info/articles/arusensminger_papet2011.htm; SWGDOG Membership Commentary on “Handler Beliefs Affect Scent Detection Dog Outcomes” by L. Lit, J.B. Schweitzer and A.M. Oberbauer, Scientific Working Group on Dog and Orthogonal Detector Guidelines, Fla. Int’l U. (March 31, 2011), http://swgdog.fiu.edu/news/2012/swgdog-response-to-lit-k9-study.

This evidence is insufficient to undermine the reliability of the dog sniff. First, as the government points out, virtually all field situations necessarily create some handler expectations—that is, a police canine unit is usually requested for a reason. And the court cannot find that all vehicle dog sniffs are problematic because, as previously discussed, the Supreme Court has already established a general rule that exterior vehicle dog sniffs do not implicate the Fourth Amendment.