case law update

Seventh Circuit: Drug Dog’s Alert Still Established Probable Cause Despite Troublesome 93% Alert Rate And Rewards Incentivizing False Positives

On October 14, 2010, Officer Aaron Veerman of the Bloomington, Illinois Police Department ran a license check on a vehicle registered to Tonya Smith of Kankakee, Illinois, but Ms. Smith’s driver’s license had expired eighteen years earlier.

Suspicious of who might be driving the vehicle or whether they possessed a valid license, Officer Veerman trailed the vehicle until he observed a moving violation and then initiated a traffic stop.

Ms. Smith was not driving the car; Mr. Larry Bentley was. Mr. Bentley informed Officer Veerman that he was driving from Chicago to his home in St. Louis and that Ms. Smith was his girlfriend. Mr. Bentley’s story changed several times though; he then stated that Ms. Smith lived with him in St. Louis, and then changed his story again and said that she actually lived in Kankakee, but often stayed with him in Missouri. When asked if he had a large amount of cash in his possession, Mr. Bentley explained that he had a “couple hundred.”  At Officer Verrman’s request, Mr. Bentley handed over a valid driver’s license and proof of insurance.  Officer Nikolai Jones arrived during this exchange.

Officer Veerman and Officer Jones conferred with one another and agreed that they should request the assistance of a drug detecting canine officer.  Officer Justin Shively and his partner, a Belgian Malinois named Lex, arrived on scene.  Mr. Bentley consented to a search of his vehicle and officers discovered approximately $1,700 in cash, a cell phone, and twelve money orders totaling $6,500. Lex alerted to drugs and the officers found nearly 15 kilograms of cocaine in a hidden compartment.  Mr. Bentley was arrested and charged with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1).

Before the United States District Court for the Central District of Illinois, Mr. Bentley moved to suppress the evidence against him on multiple grounds.  The district court found that based on Officer Veerman’s observation of a moving violation and knowledge that the registered vehicle owner’s license was expired, there was both reasonable suspicion and probable cause to initiate a stop.  The district court also found that Lex’s drug detection abilities were sufficiently reliable to create probable cause.  Mr. Bentley was convicted and sentenced to twenty years of imprisonment to be followed by ten years of supervised release.  Mr. Bentley appealed his conviction to the United States Court of Appeals for the Seventh Circuit on several grounds, including an argument that Lex was not sufficiently reliable as a drug detector for his alerts to create probable cause.

The Court of Appeals agreed there was some merit to Mr. Bentley’s argument that Lex was not reliable.  Records demonstrated that Lex alerted to the presence of drugs 93% of the time that he was called to conduct an open air sniff on a vehicle, and yet his accuracy rate was 59.5%.  Lex had previously been suspended from field duty for failing multiple drug detection tests.  Additionally, the Court of Appeals found that Lex was an intelligent dog, and that clear evidence demonstrated that Lex was rewarded every time he alerted to the presence of drugs, even when the alert was a false positive.  The Court of Appeals inferred that, as any smart dog would under the circumstances, Lex alerted with great frequency in order to receive a reward.  The Court of Appeals described this system of rewards as “a terrible way to promote accurate detection” because it incentivized alerting even when drugs were not present.  Thus, the Court of Appeals found that Lex was “particularly prone to false positives” and his alerts were “more equivocal” than is normally preferred. In light of all the facts, there was some credibility to Mr. Bentley’s argument that police used Lex and his high rate of alerts and false positives to create a pretext for searches rather than to reliably detect drugs.

However, the Court of Appeals explained that in light of recent Supreme Court precedent in the case of Florida v. Harris, 133 S. Ct. 1050 (2013), field accuracy ratings are not a “gold standard,” and Lex’s abilities were sufficient to establish probable cause.  In the Harris decision, the Supreme Court acknowledged that false positives in the field are not always indicative of a canine’s abilities for a variety of reasons:  for example, some “false positives” are actually accurate alerts as to the residue of drugs that have been recently moved, or it may be the case that a dog can smell drugs that are too well hidden or are present in such small quantities that human officers cannot locate them even after the dog’s accurate alert.  Thus, Harrisheld, accuracy in the field does not define a dog’s ability to detect drugs; the dog’s accuracy in controlled settings, where human officers know whether drugs are present, is more probative.  There was no evidence suggesting that Lex was a poor performer in training or that he lacked certification.  Lex’s 59.5% field accuracy, training certification, and training curriculum were sufficient, albeit less than ideal, to render Lex a reliable detector of drugs.

The Court of Appeals thus rejected Bentley’s arguments concerning Lex’s abilities, as well as the other grounds for Mr. Bentley’s appeal.  The Court of Appeals affirmed Mr. Bentley’s sentence and conviction.  Read the complete ruling: United States v. Bentley


This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

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