Our Certifiable Courts

Imagine for a moment, that you were on trial for having allegedly committed a crime. Imagine now that part of the evidence the prosecution wants to bring forth comes from a certified palm reader who allegedly read your palm and spoke with a dead spirit who fingered you for the crime.

Surely, the court would laugh that prosecutor out of court, possibly report him to the bar, maybe dismiss the case even. Right?

Right?

Well, consider this opinion from the United States Court of Appeals for the 10th Circuit, then:

Driving through Wyoming one afternoon in August, Sergei Ludwig was stopped for speeding. The trooper became suspicious more might be afoot after Mr. Ludwig offered a strange story about his travel plans. Eventually, the trooper ran a certified drug dog around the car.

And later in the same opinion,

And a positive alert by a certified drug dog is generally enough, by itself, to give officers probable cause to search a vehicle.

This isn’t just any dog, mind you: this is a certified dog.

And who certified him? The cops did.

It’s a good thing, they did, too, because the dog in question has a record of being right less than six out of every ten times he “alerts.” That’s a smidgen more accurate than a coin toss. The court, however, doesn’t rely on the reliability of the dog.

[I]t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. [Citation.] But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability.

Nevermind that the court wasn’t being asked to “mount a full-scale statistical inquisition into each dog’s history”; nevermind that they were being asked to look at the specific, known, unreliable history of a particular dog. That would only matter if the defense were asking the court to look at, say, some generalized problem, like the selective prosecution of black or brown people. Then the court would clearly state, “We are being asked only to look at this specific defendant” and would refuse to consider the generalized problem.

At any rate, the court has spoken and, at least according to them, so have other courts:

[C]ourts typically rely on the dog’s certification as proof of its reliability.

In other words, no matter how shabby the dog’s record, no matter how often the dog is wrong, the court isn’t going to look at that. ^[1]After all, law enforcement doesn’t need to have probable cause to have probable cause. As I wrote yesterday, all they really need is possible cause. In fact, the 10th Circuit goes to great pains to say exactly that.

After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983); United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.”); United States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (“‘[P]robable cause’ is something less than a preponderance.”); United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (“Probable cause . . . does not require . . . evidence demonstrating that it is more likely than not that the suspect committed a crime.”)(quotations omitted). And several of our sister circuits have upheld searches involving dogs with track records on par with this one. See Limares, 269 F.3d at 798 (62% accuracy rate suffices to demonstrate probable cause); United States v. Anderson, 367 F. App’x 30, 33 (11th Cir. 2010) (unpublished) (holding dog was reliable with a 55% accuracy rate); United States v. Koon Chung Wu, 217 F. App’x 240, 246 (4th Cir. 2007) (unpublished) (“[A]n accuracy rate of 60% is more than reliable enough for [the dog’s] alert to have established probable cause”).

So, as I said, “probable” doesn’t mean “probable”; it only means “possible.” When you stop and think about this, this argument provides no principled reason for saying that an officer would be wrong to say that whenever a coin-flip came up heads, he had probable cause.

Yet there is still some hope:

Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

This is actually a comical statement. The court suggests that while proof of the dog’s actual performance — proof that he cannot reliably detect drugs — is not good enough, proving the certification came from a sham organization is.

Imagine if we did everything this way: your doctor botches your surgery and you find out that he actually botches most of his surgeries, but his performance can’t be considered in court because he was board-certified. And nobody is suggesting that the organization that credentialed the doctor is all smoke and mirrors. Your accountant’s shoddy practices cause you to be assessed thousands of dollars in fines by the IRS and you find out — too late — that your accountant routinely makes such mistakes, but evidence of his performance as an accountant isn’t considered by the court because he’s a CPA — a Certified Public Accountant — and there is no suggestion that the certifying body is all smoke and mirrors.

So what if the certifying body made a mistake? Tough doggie biscuits: the dog, the doctor, the accountant have been certified.

And that’s all that matters.

There’s a problem with this, as Scott Greenfield pointed out in his post on the case,

It’s not rocket science. In fact, it’s not science at all. Science is something that can be repeated, proven. Remember Radley Balko’s article at Reason, debunking drug dogs? It seems that whenever studies are done outside of law enforcement, the magic goes away. But even with the magic, 58% of it according to the data kept by police, that’s plenty for the 10th Circuit to invoke good old Texas v. Brown, probable cause doesn’t mean probable or cause, but anything that cops can articulate to arrest someone.

In other words, there’s more than a suggestion that the California Narcotic Canine Association — and every other such law enforcement association that certifies these dogs — is “all smoke and mirrors.” There’s proof.

Let’s be clear what we’re talking about. These particular dogs are being certified as experts in finding hidden drugs. But the problem is not limited to dogs. Increasingly courts are relying upon questionable “experts,” provided courtesy of your local law enforcement agency. There are virtually always “experts” who testify in gang cases, for example, because unless a gang “expert” tells the jury why a crime that doesn’t look like a gang crime is a gang crime, they can’t get a conviction.

And who certifies the gang cop as an expert? The same folks who certify the dogs.

Okay, not the exact same folks. Gang cops belong to special groups like the California Gang Investigator’s Association. Each state has its own such association. And they all belong to the National Alliance of Gang Investigators’ Associations. There are even extra-special special groups like the International Outlaw Motorcycle Gang Investigators Association.

Who dat?

The California Gang Investigator’s Association was founded in 1977 to foster better relationships and networking among the various investigative units working street gangs in Los Angeles County and throughout the state of California. Over the years the Association has grown to include members across the nation and in Australia and Canada. Membership is limited to all law enforcement officers including corrections, prosecutors, parole, and probation.

And,

The National Alliance of Gang Investigators Associations (NAGIA), formed in 1998, is a cooperative organization representing 19 state and regional gang investigators associations with over 20,000 members. It provides for leadership in developing and recommending strategies to prevent and control gang crime, administer professional training as well as assist criminal justice professionals and the public in identifying and tracking gangs, gang members and the gang crime around the world.

And,

The International Outlaw Motorcycle Gang Investigator’s Association is a professional training organization made up of federal, state and local law enforcement and prosecution personnel.

In other words, they’re all cops. And not just any cops, mind you, but cops who certify that other cops — the ones who hang out with them — are “experts.” Heck, in court, it’s even better than that! The only cop who certifies that, by virtue of being part of these organizations, he’s an expert, is the cop testifying as an “expert!”

But guess what? That’s exactly how the certified palm readers — oh, excuse me: cheirologists — and certified I-see-dead-people people operate. Worried your psychic might be good enough? You won’t have that problem, so long as you trust only the Guaranteed Authentic Certified Psychics of the American Association of Professional Psychics.

Kinda makes ya all warm and tingly inside, doesn’t it?