from the the-tool-that-does-it-job-even-when-it-does-nothing-at-all dept
Drug dogs are permission slips for warrantless searches. That's it. They may have been legitimate when they first became part of law enforcement work, but they've devolved into malleable props in the ongoing farce that is the the Drug War. Despite these failures, they're heralded by law enforcement as superpowered miracle workers who can do things like sniff out hidden people in moving vehicles full of other (non-hidden) people.
Dogs often alert to nothing at all, either because they're relatively terrible at sniffing out contraband or because they're responding to cues (conscious or unconscious) from their handlers. Drug dogs have also been spotted alerting enthusiastically to things they have a natural fondness for, like sausages and cheese. And, because a drug dog can be said to have done whatever a cop says it's done, they can be used to "justify" a warrantless search even when they've done nothing at all. (h/t FourthAmendment.com)
Shaun Estes, who was traveling by train from Chicago to California, was confronted by Amtrak detectives (yes, there is such a thing) while smoking a cigarette during a brief stop in Reno, Nevada. Detective Madhu Kurup approached Estes based on nothing more than the fact that Estes' one-way ticket had been purchased with a credit card belonging to someone else. Seeing this on the passenger manifest, Kurup requested the assistance of local officers and their drug dog. That's when things went from bad to worse to farcical.
Estes was asked if he was carrying any drugs, weapons or [cash register noise] "large amounts of money." Estes claimed he wasn't. Kurup asked for permission to search Estes' cabin and belongings. Estes refused. Kurup then informed him that a drug dog was on the way and that his belongings would be seized while a warrant was obtained if the dog alerted.
From the suppression order:
When the police dog was led down the hallway by Estes’ room, it showed some interest outside of the room, but did not “alert” on the room. The officers knew they could not seize Estes’ belongings and obtain a search warrant due to the lack of a positive alert by the dog.That's what the detective knew. But this is what he actually did.
However, Kurup did not advise Estes that the canine had not alerted on Estes’ room. Instead either Kurup or Moore told him that the dog had shown strong interest in the room. According to Kurup, Estes then responded that he had a small amount of marijuana in his room and he then gave his consent to Kurup to search the room and Estes’ baggage. According to Kurup, Estes opened his luggage bag in the room and removed a small bag of marijuana and Kurup then, with Estes’ consent, searched the remainder of the bag and found a 9mm Kel-Tec handgun.The government tried to claim Estes had voluntarily consented to the search. Estes maintained there was nothing "voluntary" about the entire situation -- beginning with him being ordered to end his phone call all the way through to the officers' misleading portrayal of the drug dog's actions. The court agrees with Estes.
The United States has not met its burden to show that consent by Estes was freely and voluntarily given. When initially asked, Estes expressly refused to consent to the search of his room or his bags. Kurup then advised Estes that a police dog would be deployed and if the dog gave a positive alert, Estes’ items would be seized and a search warrant would be obtained. The threatened seizure of Estes’ bags is significant when it is considered that Estes was traveling by train across the country, and this incident was occurring during a brief stop along his journey to California. Then, shortly after being told that an alert of Estes’ room by the police dog would result in his bags being seized, Estes was informed that the dog had shown strong interest in the room. No one explained to Estes the difference between an “interest” and an “alert” by the dog, and it was shortly afterward that the disputed consent by Estes was given. The context in which the statements were made strongly suggested that if Estes did not now consent to a search, his bags would be seized and a search warrant would be obtained. Particularly after refusing to consent to a search just minutes before, the court does not find that a free and voluntary consent to search then occurred.Going further, the court notes that it is "troubled by the lack of credibility which permeates Kurup's testimony in this case."
First, there's Kurup's portrayal of his premeditated search attempt as something approaching serendipity.
Kurup described a very consensual and casual conversation with Estes on the train platform. The fact is that the encounter with Estes had been carefully planned by the drug interdiction team composed of Kurup, Detective Moore, and canine Officer Hill. The only purpose of their being together at the Reno train station was to confront Estes and to act within an approximate ten to fifteen minute period of the train’s temporary stop. When Kurup approached Estes on the train platform, there was an obvious immediacy in the encounter. The denial by Kurup of Estes being involved in a cell phone conversation on the train platform, of directing Estes to get off the phone and not hearing repeated return calls by Erika Dean in the several minutes following the conversation, raises serious questions concerning Kurup’s description of a seizure-free atmosphere surrounding Estes as well as Kurup’s credibility in general.Then there's Kurup's misleading depiction of the drug dog's actions.
Further concern arises after the dog did not alert to the room, which was a fact only appreciated by Kurup and the police officers. Notwithstanding the clear lack of probable cause for a search and seizure, Estes was then informed that the dog had shown serious interest in the room. Estes would likely have no idea of the difference between an alert and only interest in the room. The “serious interest” comment was obviously imparted with the hope that it would bring about a consent by Estes to a search of his room and luggage. At no time was Estes told of his right to refuse consent.Finally, while Kurup alleges Estes gave consent, there is no independent verification of this actually happening.
Kurup’s credibility is further strained by the consent then attributed to Estes. Although Kurup and the two police officers were at the train stop together for the ten to fifteen minute period for the specific purpose of investigating Estes and his possible involvement with drugs, Estes’ voluntary consent to search testified by Kurup was not witnessed at any time by either of the two police officers. No attempt was made by Kurup to have Detective Moore or Officer Hill witness or confirm the alleged consent by Estes, no attempt was made to create an audio recording of Estes’ consent, and no attempt was made to obtain a written consent from Estes although a consent form is a standard form used in Reno police investigations.And, just like that, the marijuana baggie and illegal weapon are gone. The average citizen isn't going to know the difference between "interest" and an "alert" when watching a drug dog in action -- something officers like Kurup are more than happy to take advantage of. And, as this case highlights, the difference between the two apparently has little effect on law enforcement's actions. Kurup likely thought he had a chance to snag a pile of guilty cash or at least participate in a decently-sized drug bust. Instead, all he found after misleading Estes and engaging in a warrantless search was an illegal possession charge -- one that won't stick with all of the supporting evidence stripped away.