Police, The Fourth Amendment, Qualified Immunity

Do drug dogs alert on cold medicine?

with 2 comments

Case: Davidson v. CITY OF OWASSO, Dist. Court, ND Oklahoma 2015

What happened:

Davidson challenges [drug-sniffing dog] Beny’s reliability in five respects. . . .

. . .

The third and fourth arguments relate to whether Beny is trained to alert on ephedrine or pseudoephedrine in addition to the four narcotic substances listed on his licensing documents. As noted above, Officers Mitchell and Sordo found three empty pseudoephedrine boxes in Davidson’s car, but no methamphetamine. Ephedrine, or the chemically similar pseudoephedrine, is a principal ingredient in cold medications, like Sudafed. It can be reduced chemically to methamphetamine, and is a principal ingredient in the manufacture of methamphetamine. Thus, these two arguments relate to whether Beny is trained to alert to the scent of ephedrine, separate and apart from the scent of methamphetamine.

Davidson’s argument on this point shifted between briefing on the motion and argument at the hearing. The two arguments rely on contradictory factual premises. In his response to defendants’ motion to dismiss, Davidson argues Beny’s alert was unreliable, and thus an inadequate basis for probable cause, because Beny was not trained to detect ephedrine, as opposed to methamphetamine itself. Davidson noted that this issue was left undecided by the Tenth Circuit in United States v. Patten. In that case a drug dog alerted to a suitcase that was subsequently found to contain ephedrine, but not methamphetamine. The court noted the “problem,” as identified by the criminal defendant in that case, “that the canine had never been trained to alert on ephedrine” as opposed to methamphetamine. Id. The Tenth Circuit found other grounds for probable cause aside from the canine alert, and did not reach the issue of whether the dog was trained to alert to ephedrine. The Supreme Court considered a similar situation in Florida v. Harris. There a search premised on an alert from a drug dog “did not turn up any of the drugs [the dog] was trained to detect[,]” but did reveal 200 loose pseudoephedrine pills. Id. The Court hypothesized the dog may have alerted to methamphetamine odors previously transferred from the driver to the car.

In reply, counsel for defendants argued that “Beny’s ability to identify methamphetamine includes identifying trace scent amounts of pseudoephedrine . . . to include the level of scent still present in empty boxes of pseudoephedrine.” Thus, in the briefing, Davidson’s counsel argued Beny is not trained to detect ephedrine, and defendants’ counsel replied that the dog is so trained.

The arguments shifted when, at the hearing, the court expressed concern at the prospect of a drug dog trained to alert to ephedrine separate and apart from methamphetamine, as this would lead to an alert whenever a car merely contains cold medicine. Such overbreadth would dilute the correlation between the alert and evidence of criminal activity and thus undermine probable cause based on the alert.

In the argument that followed, the parties quickly swapped positions regarding Beny’s training. Defendants’ counsel recognized that his statement in the reply brief—that Beny was trained to alert to trace scent amounts of pseudoephedrine—was an overstep, and that Beny was trained to detect only the four controlled substances on his license. Davidson’s counsel, on the other hand, argued Officer Sordo had testified Beny was trained to hit on pseudoephedrine, and a drug dog search that identifies “noncontraband items that otherwise would remain hidden from public view” is constitutionally improper.

This court finds that no genuine issues exist as to Beny and Officer Sordo’s reliability as a drug detection unit. Beny’s alert therefore supplied probable cause justifying the search of Davidson’s car. Defendants are entitled to summary judgment on Davidson’s constitutional claims arising from the vehicle search.

(some citations omitted)


Although the parties’ shifting positions have muddied the waters a bit, the material facts before the court are uncontested. There is no genuine issue of material fact regarding whether Beny was trained to alert to the mere scent of ephedrine or pseudoephedrine. He was not. Beny was trained and certified to alert to the odors of four controlled substances: methamphetamine, heroin, cocaine, and marijuana. Officer Sordo’s testimony was not an admission that Beny is trained to alert to ephedrine. Officer Sordo was asked to explain Beny’s alert on Davidson’s car given that no narcotics were found in the car. Officer Sordo speculated Beny may have hit on the scent of pseudoephedrine in the empty boxes found in the car.

Obviously, drug dogs cannot explain the specific scent that led them to alert. In attempting to explain what seems to be a false positive, one might guess, as Officer Sordo did, the dog alerted to a scent closely similar to those he is trained to detect. Or one could hypothesize that there was no false positive, and that the dog in fact alerted to traces of a controlled substance no longer in the vehicle. All such attempts are inherently speculative. For this reason, when determining whether a drug dog’s alert is sufficiently reliable to provide probable cause for a search, courts often consider the dog’s performance over time, and in particular the dog’s performance in controlled training environments, rather than the details of a specific alert in the field. As noted above, Beny and Officer Sordo were properly certified and licensed at the time of the sniff test, and Officer Sordo testified that Beny is approximately 94% accurate. Davidson has not presented evidence casting any genuine doubt on Beny’s performance over time.

(citations omitted)

Criticism: It doesn’t sound like there is evidence that the drug dog training tests whether the dog will give a false positive on cold medicine. For that reason, it seems to me that the dog’s training and certification is irrelevant.

Questions: The law enforcement K9 handler testified that his dog is 94% accurate. The opinion isn’t clear on this point, but it sounds like the K9 handler meant that the dog was 94% accurate in the field (as opposed to in the controlled training environment). Was plaintiff allowed discovery on the basis for this “94% accurate” statement? Now that the handler has won summary judgment, will this case, where no contraband was found, count as an “accurate” for purposes of the alleged 94%? More generally, how many other “accurate” detections, in the alleged 94%, turned up no contraband?

Written by Burgers Allday

March 7, 2015 at 5:30 am

Posted in Uncategorized

2 Responses

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  1. There’s no way to get a good estimate of a dog’s past reliability in the field. As a practical matter, as you suggest, you can’t nail down any genuine false positives: even if no drugs are found, there may have been drugs in the car earlier. And, the vehicles that are pulled over and dog-sniffed every year are not a random sample of the vehicles on the road. Cops are actually pretty good at profiling.

    And that raises the further question: What percentage of cars on the road at a given time, that are not carrying any of the 4 contrabands, would a drug dog nonetheless correctly alert on? I’d say that if it is over 50% then they don’t really provide probable cause.

    Bill O'Brien

    March 13, 2015 at 9:08 am

    • …not that I have anything against the dogs themselves….the little rascals.

      Bill O'Brien

      March 13, 2015 at 9:17 am

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