Why Not Let the Dogs in?
(It’s an idea that can come back to bite you - - - in more ways than one!)
December 12, 2006
By Kent Perkins
European law enforcement agencies began using bloodhounds in the 18th century. This practice continued throughout World War II when soldiers from both sides used canines for the purposes of war with extremely positive results. Thereafter, K-9 programs began in London and other cities across Europe. In the United States, various agencies began using canines in the 1970’s. Currently, canines are globally utilized as police dogs and are recognized as a vital part of law enforcement and for protecting ports of entry. But they’re not so often used in the common workplace.
There are pros and cons to using drug-sniffing dogs in the workplace. They may be appropriate in very isolated and limited circumstances, such as aboard a cruise liner to identify or deter drug smuggling.
However, using the canines may create exposure to civil litigation or morale problems. They can create more problems than they solve. Therefore, the employer’s final decision to use drug sniffing canines should be made for the right reasons and should be clearly thought-out by upper management.
The fact is there are often much better alternatives that should always be considered and are more legally defensible. Weigh your decision carefully with all the following factors in mind, as we share with you some concerns:
All employers want to uphold a positive image and maintain good relationships with their employees. Management would never wish to be perceived as a Gestapo-like force, but it’s hard for snarling German Shepherds and jack-booted handlers to suppress this image when marching and barking through the facility. This can obviously have adverse affects on morale and may lead to other employment problems.
Therefore, if you must use dogs for this purpose, make sure they are trained to do their work quietly and efficiently and have a word with the handlers in advance, to assure they keep your image concerns at the forefront. Some canines are well trained and handled by unobtrusive experts in plain clothing, not uniforms. This is a more palatable alternative.
Dogs can’t testify
Testimony in court is another crucial aspect. Never has a dog been sworn in for a courtroom appearance or deposition; testimony regarding the dog’s findings must be made by a third party, the dog handler, who may not have the ability to ferret out drugs with olfactory precision.
Bringing your dog handler into the issue makes him subject to cross-examination. Then you may be subject to a swearing contest between your expert and the expert working for the other side about whether that particular instance truly warranted “probable cause” to search an area.
The U.S. Supreme Court in United Sates v Place (462 U.S. 696 (1983) ruled that a "sniff" is not a "search" within the meaning of the fourth amendment. In Horton vs. California (496 U.S. - 1990) the U.S. Supreme Court ruled that since the use of a canine is not a search, no reasonable suspicion, probable cause or consent is required to conduct that sniff. Therefore, once a canine sniff produces a “positive canine alert,” this gives police “probable cause” to either obtain a search warrant or to conduct a warrant-less search.
Subsequently, the property may be seized while a search warrant is prepared. But in the private sector, when these searches are not conducted by police officers, a signed search consent from the employee in whose locker the “positive alert” was made, for instance, may be required to avoid civil torts related to invasion of privacy.
In addition, there is also some disagreement as to what a “positive canine alert” entails. Dogs are trained to find a specific scent and give a specific response, in exchange for a reward. There are two different types of responses the dog may be trained to provide.
One is the active or aggressive response, where the dog will scratch or bite at the location from which the scent is emanating. The other is a passive or sit response, where the dog will place its nose as close as possible to the source of the scent and then simply sit down, facing the source.
There are additional behavioral changes various dogs display when they detect the specific scent of a drug. However, those behaviors referred to as “positive canine alerts” may vary from dog to dog and are solely interpreted by their handlers. This, unfortunately, makes interpretation of drug dog responses an arguable and non-exact science.
“False hits” may occur
Drug residue from a previous holder of a locker can cause false “hits” weeks, months, or even years after a measurable quantity of the actual illegal drugs were present.
Therefore, when lockers of totally innocent people are opened with bolt cutters against the backdrop of howling dope dogs, the dog handlers may discover only a few grains of old cocaine or methamphetamine, not even a testable amount. This trace of a substance might be on a piece of used cigarette pack wrapping, for instance, in the locker of an employee who doesn’t even smoke.
You do not have sufficient evidence on which to make an employment decision, but often the whole company is aware of the drug sniffing canine having keyed in on a particular person’s property.
When this happens, employees can feel falsely accused, and rightfully so. The employer is forced to make an immediate decision: suspend the locker holder, force him or her to take a drug screen test, etc., and run the risk of litigious allegations of infliction of emotional stress and embarrassment, or ignore the trace evidence discovered in the locker. This is not a good scenario for anyone.
It’s a fact that dogs have remarkable abilities when it comes to finding illegal drugs, weapons, or people. Drug sniffing canines’ sense of smell is better, faster, more efficient, and less intrusive than any other inspection method known to man. Scientists have yet to create a more accurate and effective drug sniffing method.
Dogs can rapidly clear an area after a bomb threat, for instance, very accurately giving your workplace a sense of security. A canine can find specific scents even when there are thousands of other scents all around. For example, a drug smuggler can try to fool the drug-sniffing canines by wrapping contraband in towels saturated in perfume, but the canine’s keen sense of smell will still find it.
The inspections or sweeps by dog teams are faster and more effective than any human searches. We stand in awe at the ability of drug and bomb sniffing dogs and the experts who train and handle them, and they do have a place in law enforcement and in some cases, as we’ve mentioned, in the workplace.
As Managing Partner and Executive Investigator of Diversified Risk Management Inc. (fully licensed corporate investigation firm), I have over the past three decades conducted internal workplace related investigations exclusively for employers. I have encountered hundreds of occasions where I have met with clients about substance abuse problems in their workplace.
I’ve had some clients suggest bringing in dogs to go through the building, check lockers, canvas the parking lot, and sniff around for the presence of narcotics. In some cases, I was called in after that had been done, but there are much better, more accurate and more legally defensible ways to get to the truth.
I firmly believe the best alternative to bringing drug sniffing canines into the workplace is through a successful undercover operation in which the operative legally buys illegal drugs, undercover, at work, on company time and property (usually out in the open, in the parking lot during a break from work), and does so with the cooperation of the local police.
Drug-buys are closely monitored videotaped, and the forthcoming evidence is what the cops refer to as a “slam-dunk” case. Before being booked into jail, the employee is interviewed and, in virtually every instance, confesses in the face of overwhelming evidence.
In my experience over the past thirty years or so, never has one of my police-filed drug cases failed to result in a guilty verdict or a guilty plea. Simply put, “There’s no better evidence on which to make an adverse employment decision, no better defense to potential civil claims, and no better message to discourage drugs in the workplace than the conviction of an employee for distribution or possession of illegal drugs at work.”
In conclusion, an employer’s final decision to use drug-sniffing canines should be well thought out, made for the right reasons and under the right circumstances, or it may comeback to bite you. Also, we highly recommend you consult with your labor and employment attorney about the issue before making a final decision and please feel free to call us to discuss your other alternatives. We’ve been there, and we understand the pros and cons.
About the Author:
Kent Perkins is Senior Investigator and Managing Partner at Diversified Risk Management Inc., a full-service corporate investigation firm located in Los Angeles, California. For more information you are invited to visit our website at www.DiversifiedRiskManagement.com or call us at (800) 810-9508.