Highway drug searches back in court again

6/15/2003

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.”