K-9 Legal update: Arson dogs in criminal cases
This column reports on the latest federal cases affecting law-enforcement K-9s and handlers
U.S. v. Myers
An accelerant canine handler testified in an arson case concerning the response of the department's canine in the investigation of an attempted arson. Allegedly the canine gave an alert, which indicated to its handler the presence of an ignitable liquid on Defendant's shoes, left pants leg, left jacket sleeve and the right front floor area of Defendant's car. Although the canine search of Defendant's clothing was conducted on or about March 23, 2009, laboratory testing of the clothing did not take place until on or about June 14, 2010. The results of that test were negative for the presence of ignitable fluids. Despite the negative lab results, the United States sought to introduce testimony concerning the canine's alert as substantive evidence for the purn pose of showing ignitable liquid on Defendant's clothing.
The handler was asked by the Defendant predominantly on the guidance provided by the National Fire Protection Association (NFPA) 921 Guide for Fire and Explosion Investigations. The handler agreed that this guide served to define standards for fire and explosion investigations, including work with canines.
The guide establishes the role of canines and their handlers in fire and explosive investigations as “assisting with the location and collection of samples.” (NFPA 921 § 184.108.40.206.) The guide goes on to provide that “[i]n order for the presence or absence of an ignitable liquid to be scientifically confirmed in a sample that sample should be analyzed by a laboratory ...” (Id. at § 220.127.116.11.1.) It also provides that “[a]ny canine alert not confirmed by laboratory analysis should not be considered validated.” (Id. at § 16.5.3.)
The techniques used by the handler were in direct contradiction of many of the provisions of this NFPA guide. Most notably, the positive alert by the dog was not confirmed by a forensic lab and, therefore, according to the guide “should not be considered validated.” (NFPA Guide 921 at § 16.5.3.)
Because of its inconsistency with the guidebook, the Court must consider the techniques used by the proffered expert canine handler as contrary to generally accepted standards and practices in the field. Moreover, the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described by the NFPA guide. (Id at. § 18.104.22.168, describing the role of canine investigation as “assisting with the location and collection of samples” for laboratory testing.) Use of expert testimony beyond its proper application and scope is neither relevant nor helpful to the trier of fact.
Based on the evidence provided, the Court must exercise its gatekeeping function and conclude that the testimony of the handler regarding the canine search of Defendant's clothes does not meet the Daubert standards for relevancy and reliability.
Editor’s note: The Myers case appears to be referencing an earlier NFPA 921 Edition.
U.S. v. Hebshie
James Hebshie was convicted of arson and mail fraud in June 2006 for an April 2001 fire in a commercial building in Taunton, Massachusetts. Part of the evidence used to convict Hebshie was the accelerant canine handler’s testimony. The testimony of canine handler Lynch was a lengthy, almost mystical, account of the dog's powers.
The Court ruled as follows:
First, the appropriate use of canine evidence is merely to assist investigators in the selection of samples, not to replace any other forms of investigation. (NFPA 921 § 22.214.171.124, “Canine ignitable liquid detection should be used in conjunction with, and not in place of, the other fire investigation ... methods...”)
Second, NFPA 921 contains a lengthy warning about the proper use of canine evidence and the significant possibility of canine errorboth false positives and false negatives. “Research has shown that canines have responded or have been alerted to pyrolysis products that are not produced by an ignitable liquid and have not always responded when an ignitable liquid accelerant was known to be present.” (Id. at § 126.96.36.199.) Notwithstanding that caution, the government argued that the jury should consider the dog's failure to alert to other areas as substantive evidence that the positive alert was inculpatory. And Lynch opined without objection that Billy was correct 97% of the time and when she was not, it was because of her handler's error. Counsel not only failed to challenge any of this, he could not recall even asking the government for reports on the testing of the dog at issue.
Third, NFPA 921 warns that canines are trained to alert to common benign substances. (§ 188.8.131.52, “Unlike explosive-or drug-detecting dogs, these canines are trained to detect substances that are common to our everyday environment.... [M]erely detecting such quantities is of limited evidential value.”)
Fourth, firefighting operations had severely damaged the building and moved around material within the store. Even if Billy alerted on some materials, the material could be from somewhere else in the room or the building. Moreover, Billy was deployed only in Hebshie's store and only in the cleared area on its left side, where Domingos believed the fire had started.
Fifth, Titus expressly warned about the use of the phrase “accelerant-detection” to describe what Billy did. Billy alerted to a broad class of common chemicals, some of which were not “accelerants” in the sense of substances brought into a scene for the purposes of arson.
Sixth, these concerns made Lynch's decision to take only one sample, no comparison or control samples, all the more problematic. True, NFPA 921 § 184.108.40.206 describes instances in which comparison samples may not be necessary for the “valid identification of ignitable liquid residue,” but that was not the case here. The ambient environment of the convenience store included a range of common products, some of which could well have tested positive. The fire itself could have produced substances that would have tested positive. And, in any event, comparison samples were essential precisely to test the observations of the officers on the scene. “The determination of whether comparison samples are necessary is made by the laboratory analyst, but because it is usually impossible for an investigator to return to a scene to collect comparison samples, they should be collected at the time of the initial investigation.” (Id.)
Given everything that the Spinales knew about the canine alert in this case, it was constitutional error for them not to ask for a Daubert hearing. There was no “imaginable strategic or tactical reason for the omission.” While they indicated that they did not challenge the evidence or ask for a hearing because they thought the evidence was admissible, they were simply wrong. The testimony may be admissible, but only if certain conditions are met. They were not.
There is also a “reasonable probability” that the Court would have excluded the canine testimony or severely limited it. If the laboratory accelerant test were excluded, the canine alert would also have been excluded. NFPA 921 § 220.127.116.11 warns: “Any canine alert not confirmed by laboratory analysis should not be considered validated.” If the dog alerts on a specific spot, the investigators know there is a better chance that laboratory analysis will reveal the presence of an accelerant. But without laboratory corroboration, the canine alert is questionable.
In any event, apart from the laboratory test, if, at a Daubert hearing, the government had presented an offer of proof mirroring Lynch's testimony, there is no question that testimony would have been severely limited or excluded. If it had not been excluded or limited before the trial, it would have been excluded afterwards as Lynch began to wax poetic about his dog's unique prowess. As noted above, NFPA 921 and the scientific literature have accepted canine alerts only as tools to help investigators narrow the search area. Lynch's testimony went far beyond that.