Study Concludes Drug Dogs Err 50% of the Time in Making Drug Hits – Was Judge Billingsley Correct When He Adopted the Shaw Test For Introduction for Drug Dog Evidence?
Fox news. Jan. 8, 2011
Chicago – Thursday, an analysis of state data by the Chicago Tribune showed that drug-sniffing dogs are wrong more often then they are right. We were joined now by dog trainer, Alex Rothacker, who said that the study was misleading. We put his dog Thor to the test in our newsroom with help from Lake County Sheriff Officer Tony Fanella.
Rothacker said that the dogs are trained to be so sensitive, they can detect residue of drugs, which can lead to “false positives.”
He also said that dog training takes 100s of hours and they continue to see the dog twice a week to improve the dog’s abilities. According to Rothacker, drug-sniffing dogs have to be retested every year to prove that they are still able to produce accurate results.
The Tribune study concluded that drug-sniffing dogs are wrong over 50 percent of the time.
In 2004 Senior Status Judge Stan Billingsley, sitting in Boone County, Kentucky Circuit Court, threw out a drug dog search as the officer was not certified and his drug dog was not certified, and that a system to test drug dogs exists but was not followed by the Boone County, Kentucky drug dog handler.
Expert testimony was given at the suppression hearing to the effect that a dog handler could subtlety suggest to a dog when it should “hit” on a suspect. The expert dog handler who trains dog handlers for the U.S. Air Force said dogs should be independently tested annually.
Judge Billingsley adopted the “Shaw Balancing Test for Use of Narcotic Detection Dogs” to impose a reasonable standard to qualify a drug dog and to permit his “hits” to be considered as evidence in probable cause hearings. The test was named after Judge Billingsley’s law clerk, Jan Lee Shaw who did extensive research on the issue. The Defense Attorney who contested the drug search by the uncertified drug dog was Marcus Carey.
The Court of Appeals reversed Judge Billingsley’s ruling, and allowed the uncertified drug dog hit to be the basis for a search of the defendant’s property.
COMMONWEALTH OF KENTUCKY
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE STANLEY BILLINGSLEY, SENIOR JUDGE
2004-CA-002528 (link to full text of ruling)
JASON THOMAS BALDWIN
“..regardless of how worthy the concept of state or federal certification of drug detection dogs and handlers might be, the fact remains that such certification did not exist at the time of the search below. – We simply cannot agree with the circuit court’s judicial imposition of such certification requirements by means of the “Shaw Balancing Test for Use of Narcotic Detection Dogs” which it unilaterally created and applied to the situation herein. Daubert test does not apply to narcotic detection dogs….”
“The expert indicated that although various performance standards exist within the industry, there are no Kentucky or national standards as to drug detection dog training.
“The circuit court granted the motion to suppress in a 39-page order which both analyzed drug detection dog standards and certification, and recommended a balancing test for analyzing future cases.
The court found:
6) Considering the use of Niko, a dog who was not certified by an independent certified field test by a recognized testing organization, the fact that the handler of Niko was not a certified dog handler, the fact that Niko falsely alerted on two out of three alerts on the day in question, we find that a standardless and unconstrained discretion was left to the handler to determine the reliability and training of Niko and this fails the probable cause test.”
The court (of Appeals) concluded that although Kentucky has no certification standard, “our body of law does have requirements for the introduction of evidence which are binding, and which regulate the introduction of evidence.”