But even though we believe that "puppies" are the answer to any question worth asking, we'll concede that a dog-scent lineup may not be the solution to a police department's criminal investigation problems. Dog-scent lineup supporters say the tests are "a powerful crime-fighting tool helping investigators crack cases." Opponents -- like The Innocence Project of Texas (IPT) -- call the practice "junk science that's being used by prosecutors and judges to convict people," CNN reports.
IPT wants state governments to ban the use of dog-scent lineups, but a Fifth Circuit ruling this week suggests that's still a
pup pipe dream. Even if a person was convicted after a questionable canine lineup, the appellate court can affirm the conviction based on corroborating evidence.
The plaintiff-appellants in the case are three convicts who are challenging the reliance on dog-scent lineups. All three landed in prison after Keith Pikett, a former deputy in the Fort Bend County Sheriff's Department, conducted scent-discriminating bloodhound lineups that led to their arrests. The appellate court explains:
Pikett would obtain a scent sample from the suspect under investigation by wiping the suspect with a sterile gauze pad. The gauze pad, containing the suspect's "human scent" and "skin cells," would be stored in a Ziploc bag until the time of the lineup. At the time of the lineup, a second officer would arrange six cans, one containing the suspect's scent pad and the other five containing scent pads from other persons of the same gender and race. The officer would arrange the cans approximately ten feet apart and positioned perpendicular to the wind so as to minimize the crossing of scents. Thereafter, Pikett would expose a bloodhound to a scent sample taken from the crime scene. The trained bloodhound would "alert" if the scent pad from any of the six cans matches the crime scene sample. Pikett would repeat the exercise with a second bloodhound to confirm the first bloodhound's alert.
If Pikett's name sounds familiar, it's because his scent lineups have been challenged before. Just last year, the Fifth Circuit ruled in Winfrey v. San Jacinto County that a prisoner could move forward with due process claims against Pikett after alleging that the dog-scent lineups were a fraud. In the present case, the appellants, represented by the successful Winfrey lawyer, raised the same issues. Yet, they lost.
Here, the panel found the appellants' case distinguishable because there was independent and untainted evidence corroborating the results of Pikett's lineups. In light of that evidence, there was not a genuine issue of fact sufficient to overturn summary judgment.
The Fifth Circuit isn't firmly in either the pro or con camp for dog-scent lineups. If your client was arrested or convicted based on a sniff test, you should prepare for the long appellate road ahead.
- Ronald Curtis, et al v. W. Anthony, et al (Fifth Circuit Court of Appeals)
- Scent Sensitivity Not a Disability: Does This ADA Ruling Stink? (FindLaw's Fifth Circuit Blog)
- Picked From a Lineup, on a Whiff of Evidence (New York Times)
- Surprise! Upward Departure Doesn't Require Notice? (FindLaw's Fifth Circuit Blog)