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Bad Dog's Bad Drug-Sniffing Skills Are Good Enough for 7th Cir

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By Casey C. Sullivan, Esq. on July 30, 2015 4:18 PM

Lex, the drug-sniffing dog, has been a very bad boy. No, Lex didn't bite anyone. He never peed on the carpet or tore apart an officer's shoe. Rather, Lex sniffed drugs on just about everyone he encountered -- whether there were drugs present or not.

Lex's nose was just about as accurate as a coin toss, according to the Seventh Circuit. Lex's poor drug-sniffing skills weren't bad enough to remove probable cause, however. Lex's shortcomings did allow the court, in an opinion released Tuesday, to highlight the risk of police using inaccurate dogs as a pretext for otherwise unconstitutional searches.

The Bottom of the Class

The Seventh Circuit panel, in a unanimous opinion authored by Chief Judge Wood, didn't hold back when laying in to Lex. "Lex is lucky the Canine Training Institute doesn't calculate class rank," Wood wrote, for "if it did, Lex would have been at the bottom of the class." How bad was Lex at sniffing out drugs? Very bad. Lex smells drugs 93 percent of the time he is called to sniff a vehicle. He is accurate less than 60 percent of the time.

What made Lex so inaccurate? Testimony from Lex's trainer indicated that officers were deploying dogs only when they already suspected drugs, helping to explain Lex's high false positive rate. Further, Lex is given treats every time he finds drugs, which the Seventh Circuit notes is "a terrible way to promote accurate detection."

Sort of Terrible Is Just Fine

As bad as Lex was at detecting drugs, his 59.5 percent field-accuracy rate was "good enough" for the Seventh Circuit. Lex's credentials came before the court after Larry Bentley Jr. appealed his 20 year sentence for cocaine possession.

Bentley had been pulled over in Bloomington for crossing a lane when driving. Bloomington police officers sent Lex to sniff his car and Lex, accurately this time, indicated there were drugs. When Bentley appealed his conviction, he argued that Lex's poor accuracy rate made his sniffing essentially meaningless, removing any probable cause officers had to search his car.

The Seventh Circuit disagreed, noting that less than a preponderance is needed to support probable cause. A preponderance of the evidence is generally found when something is more than 50 percent likely to be true. Since Lex's accuracy was nearly 60 percent, Lex's indication that drugs were present was enough to justify the search.

Good Enough for Now, That Is

The court didn't let the officers go without a warning, however. "This should not become a race to the bottom," the Seventh said. "We hope and trust that the criminal justice establishment will work to improve the quality of training and reliability of the animals they use, and we cation that a failure to do so can lead to suppression of evidence."

Whether police will head the warning remains to be seen. Lex is still on the job, sniffing drugs present and imagined. Unlike the Seventh Circuit, not everyone is disappointed with Lex's service. Lex's trainer found the opinion to be "unfair and very one-sided," according to the Associated Press. "He is a very, very good dog."

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