SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.

CCA Integrity Unit hosts capitol seminar on mental health

Today and tomorrow the Court of Criminal Appeals' Criminal Justice Integrity Unit is holding a two-day seminar on mental health at the capitol. (See a flyer [pdf] for the event.) If you haven't registered (I understand it's full), you can watch online beginning at 9 a.m. this morning; go to the Texas Senate's video page and scroll down to the "Court of Criminal Appeals Seminar," clicking on the Real Player icon to launch the broadcast once it begins. The first day focuses on substance abuse issues; tomorrow they'll cover competency restoration, involuntary commitment, and representing the mentally ill.

Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.

Georgia latest southern state pushing de-incarceration reforms

Georgia is the latest conservative, southern state to embark on a path of reducing incarceration to reduce the corrections budget, and some of their leaders are citing Texas among their inspirations, reports the Atlanta Journal-Constitution ("Georgia rethinks its prison stance," Jan. 3). Here's a notable excerpt:

The General Assembly this winter will debate a shift in emphasis toward alternatives to prison time for nonviolent offenders, as suggested by a special council appointed last year to study the state’s prison population and criminal code. The effect of its recommendations would be to send fewer people to jail for property and drug crimes and boost alternative punishments.

That shift has the firm backing of Gov. Nathan Deal, who said it is time for Georgia to follow the lead of Texas, South Carolina and other Southern states and take a more effective approach to punishment.

He said Georgia, which now spends more than $1 billion a year on state prisons and has seen its inmate population double in the past 20 years, simply cannot afford to keep the current sentencing regime.

“We’re at a point in time where the necessity for doing something has gotten so big that to turn our head and pretend the problem does not exist is not responsible government,” Deal said in an interview.

“If we don’t make some changes, we’ll see an ever-increasing percentage of our state budget having to be allocated to our correction system. That takes away funding for things like education and other areas where many think the money is better spent.”

Among the recommendations that will be taken up in the Peach State legislature:

Changes to the criminal code proved to be more controversial among those on the special council, especially when it came to drug offenses. But the group reached consensus on some changes, including:

• Increasing the threshold that makes a theft a felony to $1,500 -- up from the current $500 which was established in 1982 -- and increasing the felony threshold of theft by shoplifting from $300 to $750.
• Adjusting sentencing ranges for burglaries, with more serious punishment reserved for break-ins of homes and less severe sentences for burglaries of unoccupied structures, such as tool sheds, barns and other buildings.
• Giving judges a “safety value” that would allow them, after making certain findings, to depart from mandatory sentences in the current law for drug trafficking.

More controversial in Georgia has been a measure Texas approved in 2003 mandating probation on the first offense for the lowest level drug offenses (in Texas' case, possession of less than a gram of a controlled substance, which is a state jail felony). A prosecutor on the panel argued that "To give only probation for having small quantities of illegal drugs in effect 'decriminalizes drug possession.'" This view fails to recognize that probation for many offenders can be a more difficult punishment than incarceration, particularly if it requires them to change their lifestyle. Jail or prison time can be waited out; fighting addiction, earning a living, providing for a family, etc. ... those things are a lot harder than prison for many offenders, particularly addicts. Or at least that's the premise on which Texas' 2003, '05, and '07 probation reforms were based.

As a southerner (it ain't "Grits" for nothing), I'm glad to see this happening in the South: Texas, Arkansas, Mississippi, and now Georgia (at least) have witnessed conservative champions rise up to denounce mass incarceration as too costly and unnecessary.

The Texas Legislature, of course, as Grits readers know, this year regrettably departed from its reformist path, allowing our prisons to fill up again (they're projected to be beyond capacity by 2013) and reducing their funding without doing much to reduce the numbers of prisoners. Next session, for a variety of reasons, I doubt it will be nearly so easy to punt on these questions, forcing Texas to once again confront the economic costs of its tuff-on-crime self image and seek ways to reduce the expense. The only other option is to raise taxes to build more prisons, creating a tension between fiscal conservatives and the tuff-on-crime crowd, particularly prosecutors, whose political stance invariably is that, when it comes to their own budgets and prisons, money should be no object (and you're "soft on crime" if you say otherwise). By 2013, with prison health over budget, line-staff employment churning, and more prisoners entering TDCJ by the day, that tension will force Texas to either double down on de-incarceration reforms, following our southern brethren, or else tax-and-spend is the only way out of the mess we're in, which is exactly the reason Georgia is acting now.

RELATED: Via Sentencing Law & Policy, from The Crime Report, "Getting prison numbers down for good." From the Kansas City Star, "Tougher sentences boost cost of justice in Kansas." And from The Oregonian, "Bring on the debate on corrections."

Poor Mexico: Reports from the cartel wars

A number of stories related to Mexican drug cartels and their relationship with US-side prison gangs, as well as other articles about US-side cartel infrastructure and organized crime in Mexico and Latin America, caught my attention over the holidays and may interest Grits readers:

• Houston Chronicle: Cartels cooperate with prison gangs
• Austin Statesman: Authorities work long hours to stamp out Mexican mafia
• Brownsville Herald: Prison gangs enforce brutal reign
• SA Express News: Prosecutors like RICO
• Huffington Post: Mexican drug cartels recruit young latinos in Southern California
• Catholic Online: Mexican drug cartels recruiting American teens
• Gant News Service: DEA: Mexican drug cartel extortion moving more into US
• McAllen Monitor: Gulf cartel lieutenant linked to various incidents on US side
• AP: Mexican cartels build own national radio system
  
• Wired: Radio Zeta: How Mexican drug cartels stay connected
• Global Post: Mexico police tortured suspects in Ciudad Juarez, human rights body says
• El Paso Times: Juarez forensic team a work in progress
• Honduras Weekly: Holding the United States accountable

Reading these stories reminds me of Porfirio Diaz's famous lament: "Poor Mexico, so far from God, so close to the United States!"

Haskell cop who planted drugs at traffic stop target of civil suit

A police officer from Rick Perry's hometown of Haskell pleaded no contest two weeks ago "to fabricating physical evidence ... and was sentenced to seven years probation" for planting meth on a suspect at a traffic stop, the Abilene Reporter-News reported (Dec. 31). Now, another man has filed a civil-rights lawsuit claiming the same officer planted drugs on him, resulting in the loss of his job as a car salesman after his arrest and photo were published on the front page of the Haskell weekly paper. The officer told a judge he had supporting information from an unnamed confidential informant in order to obtain a search warrant before allegedly planting the drugs, according to the suit.

The officer, William "Bill" Glass, sounds like your typical, Tom-Coleman style gypsy cop: "Apart from working at the Haskell Police Department, public records show Glass has been employed with at least seven law enforcement agencies" since 1995.

This could get (even more) ugly. Will more people come out of the woodwork to claim Officer Glass set them up? Once may be an outlier; twice (if allegations are true) would make a pattern. In the Dallas fake-drug cases, where informants helped police set up defendants using doctored pool chalk, investigators found two dozen defendants who'd been convicted and/or deported based on false allegations. How many more, one wonders, were victims of this fellow's frame-up jobs before he was finally caught?

Judges, legal experts rebut union critique of Lykos crack-pipe policy

At the Houston Chronicle today, Brian Rogers has an item ("Crack policy puts Harris DA at odds with police") on the debate between Harris County DA Pat Lykos and local police unions over charging low-level drug users with "possession" for residue on a crack pipe. His report confirms Grits' assessment last week that the unions and their hand-picked DA candidate Mike Anderson made a political misstep by making this moderate and widely supported policy the centerpiece of their Lykos critique. For starters, by foregrounding an issue where Lykos agrees with the majority of local GOP judges, they get quotes like this one from Judge Michael McSpadden rebutting the unions' extremist stance:

State District Judge Michael McSpadden has presided over Houston's criminal cases since 1982. In that time, he said, the "War on Drugs" has been lost and he has changed his mind about his "get tough on crime" stance. He urges a policy of treatment and second chances for addicts.

"Pat Lykos and I are not close, and in fact probably don't like each other, but she's right about this," the veteran jurist said this week. "Almost everyone's in agreement except, I guess, the police unions."

McSpadden said he, not Lykos, has led the charge to change how these trace cases are handled.

"No one respects law enforcement more than I do, but they're wrong about this," McSpadden said. "I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs."

Hear, hear!

Encouragingly, the reader comments under the Houston Chronicle story were, with few exceptions, overwhelmingly supportive of Lykos' stance and critical of the unions. Given the usual bent of Chronicle commenters, I found that surprising, but it confirms my sense that the issue the unions and Anderson chose to portray the incumbent DA as "soft on crime" will at best fall flat and potentially even backfire.

MORE: From Drug War Rant.

Choosing gifts for the amnesiac, and other tall but true tales

A few Sunday morning odds and ends:

Debating the legality of D.I.V.E.R.T.
The 14th Court of Appeals said a Harris County judge was within his realm of discretion to refuse to use DA Pat Lykos' much-heralded D.I.V.E.R.T. program on DWI cases because it amounts to deferred adjudication, which is illegal for DWI under current Texas law. Does that mean the program itself will be overturned as illegal in and of itself on appeal? Not necessarily. Mark Bennett thinks Murray Newman overstates the legal import of the case and that David Jennings' take is too politicized, but between their various posts you can get a good sense of the issue. This is a strange one. As far as this non-lawyer can tell, D.I.V.E.R.T. may be technically illegal, but if the prosecutor offers it and it benefits the defendant, nobody is in a position to challenge its legality on appeal. Hundreds or even thousands of DWI defendants have been processed through the program. What happens to those contracts, wonders Bennett, if a DA is elected who thinks they were illegal? ¿Quien sabe?

Decked Out: Austin PD halls decked with expensive, distracting in-car computer system

When purchasing a new in-car video system, did City of Austin "officials fall for a system too expensive to buy and too impractical to use"? A former garage employee alleges in the Austin Chronicle that Austin PD essentially rigged a bid to favor a preferred vendor for expensive, in-car police equipment when a cheaper in-house solution was available. The purported whistleblower says APD created detailed specifications they knew only a single, preferred vendor could meet, but really they just needed extra battery power for vehicle video systems which could be done in-house, he says, on a much cheaper basis. Jordan Smith, as usual, provides an excellent, detailed account. Incidentally, having recently mentioned the issue of distracted driving at Austin PD as a large source of civil liability for the city, I was interested to see Jana Birchum's photo (at left) of the inside of an APD cruiser decked out with the new rig. Who wouldn't be distracted with all that gadgetry in their face? Moreover, what's good for the goose is good for the gander. If cops get to do this, how can you then criminalize texting while driving? There's a friggin laptop pointing at the driver with a QWERTYUIOP keyboard, no less!

Pressing prostitute for patronage procures prosecution for San Antonio police
In San Antonio, "A police officer accused of accosting an 18-year-old woman for sex after she was targeted for a drug arrest four years ago pleaded no contest Wednesday to one count of official oppression and will lose his Texas peace officer's license." The sentence of one-year deferred adjudication probation, though, means the conviction may eventually be expunged from his record - a courtesy unlikely to be extended to the 18-year old he coerced for her various offenses. Reading the account from the SA Express-News, it sounds like the underlying facts amount to using a drug-warrant as a pretext and coercion tool to solicit the the services of a prostitute on behalf of a fellow officer, who fondled the woman but was then rebuffed when he could not pay. The two cops then stood lookout on behalf of a third, unidentified "friend" who paid for oral sex. Another former SA police officer - the one who would've liked a freebie but couldn't afford it - is awaiting charges related to the same incident. You can only lean on folks so hard, I suppose, even prostitutes with outstanding drug warrants. I've often wondered how common this is. The incident reminds Grits of a study out of Chicago, discussed here, which found that 3% of all tricks performed by sex-workers operating independently (without a pimp) were freebies given to police for protection. Via Injustice Everywhere.

Abuse alleged at South Texas detention center
Bob Libal at Texas Prison Bidness lets us know about a recent media report I hadn't seen:

Last month, PBS's Frontline aired a damning exposé of the immigration detention system that focused on MTC's Willacy County Processing Center.

The show, which you can watch online in its entirity, reported a pattern of sexual and physical abuse by guards at the MTC facility.  Frontline correspondent, Maria Hinojosa, highlights stories of terrifying and repetitive abuse and harassment of immigrant detainees at the facility.

See a transcript of the show. Relatedly, from Slate/Alternet: "How private prisons game the system."

Newspaper sides with Harris DA on crack-residue policy
The Houston Chronicle editorial board sides with District Attorney Pat Lykos in the debate with police unions and their proxies over prosecuting felonies based on residue-level drug amounts when officers arrest someone with a crack pipe. See Grits' earlier discussion.

Please keep pretending the naked emperor is clothed
Border Patrol officers are fired if they voice critical opinions about the drug war.

Holiday gifts for the amnesiac
If anybody out there is looking for Christmas gifts for Judge Ken Anderson or former Williamson County Sheriff's Sgt. Don Wood, after their amnesiac performances in recent depositions, I'd humbly suggest books on mnemonics. A mind, they say, is a terrible thing to waste. Please suggest other possible memory-related gifts or mnemonic tips for the Michael Morton prosecution team in the comments.

Average of 3 years shaved off federal crack cocaine sentences

This AP story from Friday describes changes in federal law that will to the early release of some 12,000 prisoners convicted of crack-related federal drug offenses:

The 1980s-era federal laws punished crack-related crimes much more severely than those involving powdered cocaine — a practice criticized as racially discriminatory because most of those convicted of crack offenses were black.

More recently, the penalties for crack were reduced to bring them more in line with those for powder, and Tuesday was the first day inmates locked up under the old rules could get out early.

Some 12,000 prisoners are expected to benefit from reduced sentences over the next several years, with an estimated 1,900 eligible for immediate release as of Tuesday. On average, inmates will get three years shaved off their sentences. The reductions do not apply to people found guilty of crack offenses under state laws. ...

Inmates' requests for sentence reductions were decided on a case-by-case basis, with courts taking into consideration such factors as the prisoner's behavior behind bars and threat to society.

At Sentencing Law & Policy, Doug Berman notes that reduced sentences for crack offenses has resulted in the first reduction in the federal prison population in recent memory.