May 30, 2015
Written by Attorney Jonathan Jay Kirschner, Esq.
Man’s best friend. And one of man’s best ‘tools.’ The ultra sensitive olfactory abilities of dogs are legendary. But as this example will show, they are not “limitless.”
In State v. J.R.J., Indian River County Case No.: 31-2014-CF-765-A, a young citizen was returning from a pizza restaurant late one night, with a fresh, redolent pie in back, when the Indian River County Sheriff’s Department stopped him, claiming that he failed to come to “full and complete stop” at a stop sign.
The law enforcement officer also happened to be a “K9" officer, meaning that he traveled with an animal (which he calls a “partner.”) In this case, the dog was a german shepherd named “Odie.”
Odie seemed like a happy pooch. He trotted around J.R.J.’s truck, took a smell of some nearby bushes, and generally seemed interested in his new environment, as his human “partner” guided him around the outside of the vehicle. Suddenly, when Odie got to the driver’s door, he promptly sat down, unmoving, and staring expectantly at his human “partner,” as though waiting for something.
And he was.
The videotape clearly shows that Odie was waiting for his very best favorite chew toy, which his human partner promptly popped into his mouth. Odie wagged his tail happily.
POLICE K9 "ODIE'S" FALSE ALERT
Claiming the animal had given a ‘passive hit’ on the driver’s door, Officer Friendly, pursuant to Florida and Federal Law, proceeded to use that rationale as an excuse to conduct a complete and thorough search of J.R.J.’s truck, without J.R.J.’s consent.
Low and behold, sandwiched between the driver’s side floor mat and floor board, the cop found three small round blue pills (known colloquially as “blues.”) ‘Blues’ is slang for a thirty milligram oxycodone pill----these pills are tiny, measuring 1/4" in diameter. The three pills were clustered together just under the corner of J.R.J.’s floor mat, and yet the K9 officer claimed the dog “alerted” to the smell of narcotics.
The team at JJK/LLC didn’t like the ‘smell’ of this claim, and contacted Barry Cooper, a former law enforcement officer specializing in drug interdiction, who is now a cannabis activist and expert witness. You can find Barry at www.nevergetbusted.com. We learned through Barry, coupled with our own research, that despite multiple “public records” requests concerning the dog’s training and performance evaluations, neither the police nor the State’s Attorney’s Office claimed to have access to any such records.
The records were subpoenaed directly from the K9 Officer, who brought them to a hearing----hundreds of pages that he claimed “belonged to him,” so he had not turned them over to either his employing agency or the State Attorney’s Office.
The data mined from the previously hidden documents showed Cooper and the team at JJK/LLC some of what they suspected, and some of what they already knew. For example, “Odie” had never completed a training course of drug detection at the time the cop claimed the animal alerted to the smell of narcotics. Perhaps more importantly, there is no dog training course in the world that teaches animals how to recognize the scent of Oxycodone. (They are trained to recognize cannabis, cocaine, heroine , methamphetamine and “ecstacy.”)
NONE are trained to recognize pharmaceutical grade oxycodone.
And Odie’s record of success was even worse than dogs in general. (A recent three year study by the Chicago Tribune found that K9's actually found illegal narcotics 44% of the time, when it came to searching for drugs ‘post-alert,’ and an alarming 27% when searching vehicles driven by Latin Americans.)
Dog searches currently are a “hot” topic in both the Florida and United States Supreme Courts (who, btw, disagree profoundly about when and under what circumstances K9 dog searches should be permitted.)
What is clear in this case is that “ODIE” could not have smelled three 1/4" pills sandwiched between the floorboard and floormat of J.R.J’s truck.
The firm also located a citizen who had used the truck in the days immediately preceding the search, and who was legitimately prescribed the Schedule II controlled substance oxycodone. The source of the drugs, as well as the legitimacy of the search and seizure, became key issues in the case.
Result? On April 16, 2015, the State of Florida, in its infinite wisdom, filed a “Nolle Prosequi” (dismissal) of the case, and J.R.J. escaped prison time, a felony adjudication, and the concomitant loss of liberty and freedom that those sanctions entail.
Good boy, GOOD BOY!