Sunshine Week: Many law enforcement agencies withhold drug-detecting dog records

Though law enforcement narcotics-detection dogs often prove to be an invaluable tool in sniffing out the presence of illegal drugs and drug trafficking operations, records on the animals’ performance in the field can often be difficult for the public to obtain.

A positive alert by a certified law enforcement agency’s narcotics-detection dog in most cases gives police probable cause to perform a search of a vehicle without a search warrant, whether the vehicle’s driver consents to the search or not, and “K-9” units are often used in law enforcement highway drug interdiction operations.

However, some defense attorneys and civil libertarians say — and at least one scientific study has found — that handlers can trigger a positive alert by their canine partner, either purposefully or through body language stemming from the handler’s own unconscious biases about whether drugs will be found.

Doug Parr, an Oklahoma City defense attorney who has handled numerous cases over the years involving highway drug interdiction operations and drug dog searches, said he often sees dog records showing an annual field accuracy rating of less than a coin flip.

“It’s not uncommon for me to find, when I’m able to get dog-use records, dogs that have 50 percent or less accuracy rate,” Parr said. “There’s a number of things going on here. A properly trained and certified dog can be remarkable. But there are a number of ways that things can go wrong.”

Several years ago, Parr sued the Oklahoma Department of Public Safety for civil rights violations on behalf of a client who had his tractor trailer searched and “torn apart” over a positive drug dog alert, Parr said. The dog who gave the alert and its handler had won several awards for their drug detection work, and Parr said he was able to get the dog’s field deployment records.

“In a five-year period of time, the highest accuracy rate that dog ever had in a single year was 27 percent,” Parr said.

The case was settled before going to trial, he said.

To determine whether drug dog alerts that resulted in no drugs being found was common, the Frontier requested training records, field deployment logs and certification records for law enforcement canine units from 21 separate law enforcement agencies around the state. The request included documentation for both drug detecting dogs and explosive detecting dogs.

The goal of the requests was to gather data for each time a narcotics detection dog was deployed in the field to see how often illegal narcotics were found or not found after the animal gave a positive alert, and then comparing each dog’s results with the results from its training and certification records.

However, few agencies provided the requested data.

The records

A handful of agencies said they either did not have dogs or had dogs at one time, but the records had been lost or destroyed. For instance, the Tulsa County Sheriff’s Office was able to provide certification and training records for it’s former K-9 officers, but no longer had the field deployment logs for the animals. The agency’s last K-9 officer was retired in early 2017.

Some, such as the Craig County Sheriff’s Office and Tulsa Police Department, provided most of the records requested, while others only provided data for cases where an arrest had been made, only training or certification records, or aggregate deployment data that did not show the outcome of the search or whether the dog alerted. Though, on some of the records provided by Tulsa Police Department, large swaths of information was redacted.

Other agencies simply did not respond at all. For instance, requests for the records were sent via certified mail to the McCurtain and Comanche county sheriffs’ offices, and although records show both agencies received the requests, neither responded to the letters or to follow-up phone messages.

A letter by the Cleveland County District Attorney’s Office, drafted in response to a request submitted in May to then-Cleveland County Sheriff Joe Lester’s office, states that none of the records are subject to the Oklahoma Open Records Act, since they are considered “law enforcement records” and are specifically listed in the law as being a public record.

Assistant Cleveland County District Attorney Heather Darby said the drug dog records are kept in deputy personnel files and thus are not subject to the Open Records Act.

Joey Senat, an associate professor of journalism at Oklahoma State University and expert on transparency laws, disagreed that such law enforcement records are not public.

“That’s an asinine way to interpret the Open Records Act and it’s an attempt to keep the public from knowing what’s going on,” Senat said. “It does not serve the public need to know. The public needs to know how these law enforcement agencies operate and we do have a substantial public interest.”

Stephen Krise, general counsel for the Oklahoma Department of Public Safety, said the agency would release narcotic-detection dog records, but would not release the records for explosive-sniffing dogs (the agency only released aggregate deployment data that does not show whether a positive alert was given by the dog or whether narcotics were found).

“I would have to object to those to the extent it’s going to reveal the substances we train on and don’t train on and the methods. How we search, where we search, when we search – those things are going to reveal information we don’t want made public,” Krise said. “To be honest, there’s no way I would produce the records on explosive dogs without a court order.”

Krise also cited the law enforcement section of the Oklahoma Open Records Act as not including such records.

“It’s the discretion of the agency and only until a court determines the public need outweighs the reasons for us withholding them,” Krise said. “I’m going to make a pretty good argument the public doesn’t need to know what types of explosive substances the dogs are trying to detect.”

The Oklahoma Bureau of Narcotics and Dangerous Drugs, which has several K-9/handler teams who do highway drug interdiction, only provided drug dog information for cases where an actual arrest was made.

Because drug dog field deployment records are not listed in the Oklahoma Open Records Act specifically or generally among the records that law enforcement must make public, they do not have to be released by law enforcement, said OBN General Counsel Travis White.

“Whenever you’re talking about deployment records, if there was no arrest — for instance, if it was merely a traffic stop and didn’t result in an arrest and a mug shot and that sort of thing — then obviously that’s going to be a record that falls outside of that (the Open Records Act,)” White said.

White cited case law in criminal courts where a defendant challenged the reliability of a drug dog and the court stated a dog’s reliability is determined by whether its certification process is reliable, and said he has used that case law to prevent defense attorneys from obtaining those records as well.

“If they can’t get it in criminal discovery, then certainly it wouldn’t be eligible for disclosure under the Open Records Act,” White said. “The position I’ve always taken is the deployment records are irrelevant. If you’re trying to establish whether or not a dog is trained and reliable on a particular incident or event to detect a contraband odor, a deployment record is not going to be relevant to that.”

Even if the deployment logs are not public under the state’s sunshine law, White said he could not provide them voluntarily because they are often handwritten and would take a great amount of effort to gather and the records would not demonstrate a dog’s “reliability” anyway.

“It takes a tremendous amount of effort and resource to pull each of those deployment records,” White said. “It’s not a matter of not wanting to comply or be cooperative with the media, it has more to do with if a defense attorney cannot or is not eligible to get that information in criminal discovery, why should they be able to get it through an Open Records request?”

Senat said there has been a trend over the past few years with an increasing number of law enforcement agencies citing a section of the Open Records Act that lists the records law enforcement must make public in cases where an arrest has been made and interpreting that to mean that those are the only records that law enforcement is required to release.

“That’s become the law enforcement reason for denial of late — whatever you’re asking for isn’t on that list,” Senat said. “What you get is law enforcement saying we don’t have to turn over any administrative records to you because they’re not on that list. If that’s allowed, then law enforcement agencies can operate pretty much as secret agencies as far as how they administer their departments and operate.”

Senat said the Legislature should address the issue by changing the law to make it clear that the presumption of openness for government agencies applies to law enforcement agencies as well.

“The Legislature could clear this up if they go back and make it like other states have — the same presumption of openness applies to law enforcement agencies as well,” Senat said. “The Legislature needs to address this next year. This has become a serious problem. It’s hard to have confidence in law enforcement agencies when they’re trying to operate in such secrecy.”

Drug dog data

Narcotics-detecting drug dogs are highly trained to sense even the slightest odor of heroin, cocaine, methamphetamine and marijuana. Most undergo training several times a month to detect illicit drugs, and must be certified annually by the Council on Law Enforcement and Education Training (CLEET).

Agencies that own drug dogs are required by CLEET to document each dog and handler team’s training, certification and deployment history.

Many agencies use K-9 units to detect the presence of illegal drugs, and they are often used in highway drug interdiction operations — law enforcement efforts to stop the cross-country smuggling of drugs and drug proceeds.

Courts have held that a positive drug dog alert is enough evidence to establish “probable cause” for a law enforcement officer to conduct a search of an individual’s vehicle for illegal drugs without a search warrant. Other court rulings have allowed positive alerts by certified drug-detecting dogs to establish probable cause for a search warrant, and stated that a drug dog’s reliability in criminal cases is established by it’s certification  — where it was tested in a controlled environment.

Some have criticized court rulings on drug dog reliability, stating that some law enforcement officers have relied on their K-9 unit as a “probable cause generator,” allowing them to search vehicles without good reason, raising questions of Fourth Amendment violations.

Only two agencies — the Craig County Sheriff’s Office and Tulsa Police Department — were able to provide full narcotics detecting drug dog field deployment records, which shows the dates and locations of deployment, the type of search done (such as a vehicle, building or package), whether the dog indicated the presence of drugs and whether drugs were found during a subsequent search.

Though the data available was limited, the logs show that during most searches in the field, the dog did not indicate. This was the case in 96 out of 130 cases, the logs show.

In 34 cases, the logs show that the dog gave a positive indication for the presence of drugs. Out of those cases, drugs were not found in a subsequent search in 10 cases, or about 29 percent of the time.

However, in those instances the logs often provide an explanation for the positive alert without the actual presence of drugs, such as a person in a vehicle being searched admitting to smoking marijuana in the vehicle the day before.

White said it is rare for a true “false alert” to occur, and that often the reason for an alert may be the presence of drug residue in the area or the lingering odor of drugs that had recently been removed.

“Often, when our dogs alert out on the highway and they don’t find anything, what they (agents) will try to do is ask questions,” White said. “More often than not, what we’ll get is, ‘oh yeah, my buddy smoked pot in there,’ or ‘I burned one down yesterday,’ or whatever. But some explanation will be provided that might explain why that dog gave that physiological response. But they can’t always guarantee that. In some cases the people will say ‘it’s a rental car’ or ‘It’s this or that’ or ‘I don’t know, I can’t explain that.’ Is that really a false response? Anybody in the industry will tell you ‘no.’ and it’s basically because that’s an unknown.”

However, true false alerts do happen. Training records provided to The Frontier show that, though rare for experienced dogs, the animal will sometimes alert to the presence of drugs when none are around even in a training environment.

Parr, the Oklahoma City defense attorney, also said he believes more than residual odors may be going on in cases where a dog in the field alerts but no drugs are found. The reasons can be a result of bad training, the handler intentionally cueing the dog to alert or the handler unintentionally cuing the dog to alert because they expect drugs to be in the vehicle, Parr said.

“In my opinion, what it (highway drug interdiction) is is stopping and searching as many out of state vehicles as possible,” Parr said. “It’s a numbers game.”

Though OBN records were limited to arrest cases only, even within those there were several cases where a drug dog gave a positive alert on a vehicle but no drugs were found.

In February 2016, an Oklahoma Bureau of Narcotics agent working drug interdiction on Interstate 40 in Canadian County stopped an out-of-state vehicle with two men inside for a minor traffic violation. The agent stated that the two men gave conflicting travel plans, and led his K-9 unit around the vehicle for an open-air sniff. The K-9 gave a positive alert indicating the presence of drugs, according to the agent’s report.

However, a search of the vehicle turned up no illegal drugs. Instead, the agent found Walmart sacks with numerous expensive flea and tick medications for dogs, along with multiple Walmart receipts for items less than a dollar and bar codes that had been cut off packages.The two were arrested for allegedly running a “tag switching” scam, in which tags are taken off cheap items and put on expensive items before paying for them. Why the dog may have given a positive alert for the presence of drugs is not explained in the report.

In another OBN highway drug interdiction arrest case in February 2016, a man from out of state was pulled over in Canadian County for a minor traffic violation. The man’s license was suspended and he had an active arrest warrant. The man was arrested and the vehicle impounded, according to the OBN agent’s report. A K-9 unit was led around the vehicle and made a positive alert for the presence of drugs, the report states. However, a subsequent search of the vehicle only turned up $11,000 in cash, which was returned to the owner, according to the report.

In a separate case from 2016, a drug dog gave a positive alert on an out-of-state vehicle that had been pulled over by an OBN agent, giving the agent probable cause to search the vehicle. The search turned up five pills in a Tylenol bottle — a mixture of Xanax, Oxycontin and Adderall pills. No other illicit drugs were found in the vehicle, the report states, and records show the dog was only certified in detecting the presence of heroin, methamphetamine, cocaine and marijuana.

In several other cases among the OBN arrest files, no drugs were found in vehicles after a positive K-9 alert, but large amounts of cash, believed by officers to be smuggled drug proceeds, were discovered. In those cases the funds were seized in order to be forfeited to the law enforcement agency. Often, tests would later reveal drug residue present on the seized cash, the reports state.

However, without a full set of records that includes stops where no drugs were found and no arrest made — such as cases where agents seized large amounts of cash believed to be drug smuggled drug money but did not arrest the people transporting it — it is impossible to get an accurate picture of the situation, Parr said.

“In my experience, they stop and search a large number of vehicles where they find no indication of drugs at all,” Parr said. “But we can’t know how often that happens unless they provide us records that they keep.”

To view the entire dataset for K-9 field deployment, including agencies that only provided K-9 data in arrest cases, click here.