I was working with a drug dog expert the other day reviewing a video from a police drug stop on Interstate 80 in Lincoln, Nebraska. After reviewing the video and the dog's training records, the expert provided me with a great deal of ammunition to attack the government's case, specifically whether the drug dog was adequately trained and whether the drug dog indicated the odour of narcotics. During our conversation, I inquired about the “Smell Proof” bags in which the marijuana was stored and whether the Custom Smell Proof Bags worked. I believe the bags, in this case, were the LOKSAK Opsak bags. The expert confirmed that the Custom Smell Proof Bags work in a controlled environment and that he has tested them. Unfortunately, the dog's argument did not indicate because Custom Smell Proof Bags were rarely successful.
Custom Smell Proof Bags in a Controlled Environment
The expert explained that he used laboratory precautions to place marijuana into Custom Smell Proof Bags using rubber gloves and ensure that the bags were not contaminated. The expert then put the Custom Smell Proof Bags containing marijuana in a car and drove a drug dog around it. The dog did not detect any marijuana odour. He repeated the experiment with different types of narcotics, including cocaine, methamphetamine, and heroin, and the dog did not indicate. When the expert told me about the precautions he took to ensure no contamination, I was impressed by his diligence and scientific approach.
Custom Smell Proof Bags in a Criminal Case
I told the expert that when I represent people travelling on the interstate transporting marijuana, methamphetamine, or cocaine, the drugs are either heat sealed or placed in odour sealed bags, but the dogs still indicate. According to the expert, manufacturers who advertise Custom Smell Proof Bags do not always provide Custom Smell Proof Bags, and it is straightforward to contaminate them. Furthermore, individuals stopped on the interstate frequently had other drugs or paraphernalia in their vehicles in the past. Obviously, from the perspective of a criminal defence attorney, the argument is that the dog never indicated because the drugs were in a Smell Proof bag, so the dog was cued by the handler, the dog was untrustworthy, or the dog was always trained to indicate the odour of narcotics because the dog is rewarded any time they show narcotics are in the vehicle. Before law enforcement searches the car, the dog is rewarded. So, regardless of whether drugs, marijuana, or any other drug is found, the dog is rewarded for indicating the odour of narcotics when sniffing a car. According to the expert, this is possible and can occur in certain circumstances.
Detailing and Drug Dogs
In another discussion with the expert, we discussed in detail whether the drug dogs are alerting to a narcotic or simply displaying behaviour that the officer wants to see so that they can be rewarded. Detailing is a yes or no proposition. The handler directs the dog to a specific location, and the dog either indicates the presence of narcotics or does not. By deposing and cross-examining some officers, I discovered that not all certified dogs could be detailed. This is concerning. How do you know if a dog alerted and then indicated the odour of narcotics after being walked around a car three or four times without showing if the dog cannot pass a yes or no test? It is common to see drug dogs walking around a car for two or three laps before alerting and indicating the odour of narcotics on Interstate 80. This, according to the expert, is cause for concern because it may give the dog the impression that the handler intends to walk him around the car until the dog alerts or indicates. A dog's ability to detail is critical in determining whether the dog can or cannot detect the odour of narcotics. If you direct the dog to a specific location to sniff and the dog does not indicate when drugs are present or show no smell of narcotics present, you know the dog is untrustworthy.
The Issue with Custom Smell Proof Bags
To return to the bags, the bottom line is that the chances of contamination are pretty high, and arguing in court that there is no way a dog could have smelled through the Custom Printed Smell Proof Bags will almost certainly fail because the prosecutor will have a counter-argument. The prosecutor can argue, for example, that the vehicle in which the drugs were transported had previously been used to transport drugs and thus contaminated the interior of the car, that the cash found in the vehicle had the odour of narcotics, or that there was contamination on the outside of the bag.
