HIGHWAY DRUG SEARCHES BACK IN COURT AGAIN

Lawyers Question Dogs' Reliability

It started as a routine traffic stop on chilly New Year's day when Ohio
Highway Patrol Trooper Stacey L. Arnold saw a minivan stray outside the
lanes on the Ohio Turnpike.

When the driver, Can T. Nguyen, appeared overly nervous, his hands
trembling as he handed over his driver's license, Trooper Arnold headed
over to her car to get her drug-detecting dog, Ringo.

The black and tan Belgian Malinois alerted to drugs, giving the trooper the
probable cause she needed to search the minivan. She found what she was
looking for - 113 pounds of suspected marijuana in a cargo area.

But now Mr. Nguyen's defense lawyer is questioning how often the dog is
wrong - how often he behaves as if drugs are in a vehicle, but none is
found. And Lucas County Common Pleas Judge Frederick McDonald has ordered
state troopers to produce those records.

"They are dogs," said Spiros Cocoves, Mr. Nguyen's attorney. "They are not
machines or computers. You just can't assume they are always reliable.
There has to be a demonstration of continued reliability."

But Lucas County prosecutors are fighting Judge McDonald's order, appealing
it to the 6th District Court of Appeals. A pretrial hearing is scheduled
for Tuesday.

John Weglian, chief of the special units division of the prosecutor's
office, said the reports are not a reliable indicator of Ringo's ability to
detect drugs.

"The canine-use reports are absolutely meaningless," he said. "Just because
the dog indicates to the presence of drugs, the dog is not saying the drugs
are in the vehicle. Instead it is reacting positively to the odor of drugs."

In April, Trooper Arnold, testifying at a hearing for Mr. Nguyen, who along
with his passengers Quang Ton and Thach Wana, all of Washington state, are
charged with possession and trafficking in marijuana, said Ringo has been
used in more than 500 traffic stops in the last three years. But she didn't
know how many times Ringo indicated there were drugs, but none was found.

Despite Judge McDonald's ruling, deference has been given to drug-sniffing
dogs. David Harris, a University of Toledo law professor, said the U.S.
Supreme Court held in 1983 that officers could search a vehicle stopped for
a traffic offense if a drug-detecting dog indicated it contained narcotics
or marijuana.

"The Supreme Court said the dogs are special and they are uniquely accurate
in detecting for drugs," Mr. Harris said. "In the 20 years since the court
made that decision, the accuracy of the dogs has been called into question
many times. But the ruling has always been upheld.

"It means police can use the dogs for a search on a vehicle and they can
use the dog without any probable cause or suspicion of any kind. They don't
need a search warrant. They don't need anything."

In decisions on suppression hearings in similar seizures on the turnpike,
four Lucas County Common Pleas Court judges have rejected requests from
attorneys for defendants seeking similar information.

The judges, relying on decisions from higher courts including the Ohio 6th
District Court of Appeals, said only records pertaining to the
certification, training, and accreditation of dogs and troopers can be used
to challenge a search.

The issue of reliability of drug-sniffing dogs is relevant given the number
of seizures troopers have made. The $5.2 million worth of marijuana seized
in Mr. Nguyen's minivan was among nearly two dozen investigations initiated
by the highway patrol on the turnpike over the last 18 months that involved
large drug seizures.

More than 2,800 pounds of marijuana, 105 pounds of cocaine, and 23 pounds
of illegal mushrooms were confiscated in the searches. All the
investigations involved the use of drug-detection dogs, with all but one
occurring within an eight-mile area on the turnpike near Toledo Express
Airport.

Sgt. Robin Schmutz, a spokesman for the Ohio Highway Patrol, said troopers
take into consideration a number of factors before deciding to use dogs to
inspect vehicles on traffic stops.

A driver or passenger acting nervously or avoiding eye contact, more than
one cell phone in a vehicle, strange odors, items strewn about in a car,
and conflicting information about travel itinerary are among the indicators
of possible drug activity, Sergeant Schmutz said.

"There are lots of criminal indicators: if travel plans don't make sense,
if someone is driving for three straight days but doesn't have a reason for
driving for that long, are indicators that something is out of the
ordinary," she said.

Trooper Arnold is among three troopers assigned to the patrol's drug
interdiction unit at district headquarters in Findlay who patrol with a dog.

In most instances, they stopped a vehicle on a traffic violation and had
the dog in the patrol car available for a search. In other arrests, they
were nearby and called to assist another trooper who did not have a dog in
their car.

Last year, Trooper Arnold arrested 43 defendants in 30 investigations, with
about 20 occurring on the turnpike. She received special recognition from
the patrol for having the most felony drug arrests.

Given the heavy use of dogs, Mr. Harris of the University of Toledo said
it' s relevant for defense attorneys to question their reliability.

"You can't accept the evidence from the dog search without questions," he
said. "If someone raises questions about accuracy in the dog's ability to
detect drugs, then it seems reasonable that the government should be able
to substantiate the dog's record."