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Uploaded 14 November 2011

Appellate Court Ruling on Suppression:
U.S. v. Ludwig Case No. 10-8009

Wyoming District Court No. 08-CR-224-D
Narco Detector Dog finds Cocaine in a Vehicle
Steven Nicely Defense Expert Witness

Federal District Court Ruling

Federal Appeals Court Ruling
This was an appeal to the Tenth Circuit Court of Appeals as a result of a denial of a Federal District Court Motion To Suppress involving a traffic stop made by a Wyoming State Trooper, during which a certified Narcotics Detector Dog indicated the presence of illegal drug odor inside the vehicle. A thorough search of the vehicle revealed a concealed compartment with 11 lbs. of ecstacy hidden inside.

In the Federal District Court Hearing, the defense presented Mr. Steven Nicely as an Expert Witness. Mr. Nicely testified that the K-9 had not indicated on its own, but rather, via a cue from the Handler. He was critical of the Wyoming State Patrol training methods. Further, he opined that if there is indeed a scent of drugs present where a K-9 indicates, but no drugs are found, this should be counted as a miss. Mr. Nicely testified that Trooper Downing was "cuing" K-9 Rex when the dog indicated.

District Court Judge Jeffre Cheuvont characterized Mr. Nicely's testimony as "unpersuasive." Further, Judge Cheuvont stated "Nicely's opinion that even if there is a scent of drugs but no actual drugs are found, this should be counted as a miss defies common sense." He plainly declared "It appears that Nicely is a witness who is hired to criticize the actions of various handlers and canines."

The Federal District Court found that Rex was reliable, that Trooper Downing did not cue the dog, and that the Wyoming State Patrol training methods, evaluations, and certification process are appropriate and suitable.

The Court denied the Motion To Suppress.

The fact that a Federal District Court Judge declared Mr. Nicely's testimony "unpersuasive" and "defies common sense" is both interesting and educational. The fact that Mr. Nicely testified that a drug dog indicating on a confirmed drug odor - with no actual drugs being found - is a "miss" is a notable issue for all K-9 Officers everywhere.

In the Appellate Court Ruling, the defense attempted to impeach the K-9's performance by claiming a success rate of 58% was insufficient. The Appellate Court then referenced the District Court's finding that the actual success rate was between between 72%-80%. The Appellate Court then made a monumental declaration as follows.

"But none of this means we mount a full-scale statistical inquisition into each dog's history. Instead, courts typically rely on the dog's certification as proof of reliability. After all, it is safe to assume that canine professionals are better equippmed than judges to say whether an individual dog is up to snuff. And, beyond this, a dog's credentials provide a bright-line rule for when officers may rely on the dog's alerts - a far improvement over requiring them to guess whether the dog's performance will survive judicial scrutiny after the fact."

Finally, the Tenth Ciruit Court of Appeals ruled, "The judgement of the district court is Affirmed
Uploaded 13 April 2011
Motion To Suppress Hearing:
U.S. v. Olivares Case No. CR09-4048-DEO

Narco Detector Dog finds Cocaine in a Boot
Steven Nicely Defense Expert Witness

Federal Court Ruling
This was a Motion To Suppress Hearing involving a traffic stop made by a Woodbury County (Iowa) Sheriff's Office Deputy, during which a certified Narcotics Detector Dog named "Bosco" indicated to the presence of a quantity of Cocaine inside a boot in the rear portion of the vehicle.

The defense presented Mr. Steven Nicely as an Expert Witness in the Hearing. Mr. Nicely testified that Bosco did not indicate at any point during his search of the vehicle. He further testified that Deputy Bauerly induced Bosco to react to certain areas of the vehicle. Finally, he testified that Bosco "just stumbled on" the boot containing the drugs and "he was 99% certain the dog just happened to pick up the boot" without detecting the drug odor.

Chief Magistrate Judge Paul A. Zoss of the United States District Court of Northern Iowa characterized Mr. Nicely's testifimony as follows: "He asserts that the training methods used by every other organization besides his own company are inappropriate because, unlike his methods, the other organizations do not use a behavioral science approach for their training." Judge Zoss further declared that "... his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous."

The Court found that Bosco was a reliable drug detection dog and that Deputy Bauerly did not cue the dog. The Court also ruled that Deputy Bauerly and Deputy Van Buren of the Douglas County (Nebraska) Sheriff's Office, who also testified, were both "experts in the field of K-9 training and certification and the testimony of both officers was entirely credible." The Court denied the Motion To Suppress. Judge Zoss ruled that Deputy Bauerly had probable cause to search the vehicle.

The fact that a Chief Magistrate Judge in the United States District Court in this case declared Mr. Nicely's testimony to be "ludicrous" is both interesting and educational. Considers this seriously ... Mr. Nicely's "99% certain" testimony was considered "ludicrous" by the Chief Magistrate Judge. This is a meaningful issue for all K-9 Officers in the United States of America.
Uploaded 13 April 2011
Motion To Suppress Hearing:
Nebraska v. Passerini Case No. CR 07-1180

Narco Dog finds Marijuana in a Suitcase
Steven Nicely Defense Expert Witness

State Court Ruling
This was a Motion To Suppress Hearing involving a traffic stop made by a Nebraska State Patrol Trooper, during which a certified Narcotics Detector Dog named "Rex" indicated to the presence of a quantity of Marijuana inside a suitcase in the passenger compartment.

The defense presented Mr. Steven Nicely as an Expert Witness in the Hearing. Mr. Nicely testified that Rex was not reliable. He was critical of the Nebraska State Patrol training methods and also was critical of the scores achieved by Rex in the evaluations. Further, he opined that if there is a scent of drugs present but no drugs are found, this should be counted as a miss. Mr. Nicely testified that Trooper Downing was "cuing" Rex."

District Court Judge Jeffre Cheuvont characterized Mr. Nicely's testifimony as unpersuasive. Further, Judge Cheuvont stated "Nicely's opinion that even if there is a scent of drugs but no actual drugs are found, this should be counted as a miss defies common sense. He plainly declared "It appears that Nicely is a witness who is hired to criticize the actions of various handlers and canines."

The Court found that Rex was reliable, that Trooper Downing did not cue the dog, and that the Nebraska State Patrol training methods, evaluations, and certification process are appropriate and suitable.

The Court denied the Motion To Suppress.

The fact that a State Court Judge declared Mr. Nicely's testimony "defies common sense" is both interesting and educational. The fact that Mr. Nicely testified that a drug dog indicating on drug odor - with no actual drugs being found - is a "miss" is a notable issue for all K-9 Officers everywhere.
Uploaded 12 April 2011
Motion To Suppress Hearing:
U.S. v. Ludwig Case No. 08-CR-224-D

Narco Detector Dog finds 11.3 lbs. MDMA
Steven Nicely Defense Expert Witness
Ken Wallentine Prosecution Expert Witness

Federal Court Ruling
This was a Motion To Suppress Hearing involving a traffic stop made by a Wyoming Highway Patrol Trooper during which a certified Narcotics Detector Dog named "Todd" indicated to the presence of 11.3 lbs. of MDMA inside a concealed compartment.

The defense presented Mr. Steven Nicely as an Expert Witness in the Hearing. Mr. Nicely testified that the Handler obviously cued K-9 Todd to indicate. Ken Wallentine testified that K-9 Todd behaved properly during the K-9 Sniff Test and was not cued to indicate. Further, Ken Wallentine "... found no support in the ICOP footage for Nicely's prompting theory."

The Court denied the Motion To Suppress and stated that "The Court finds no basis to support Mr. Nicely's speculative theory that Trooper Chatfield prompted Todd to alert during the Ludwig search." Further, "In fact, Todd and Trooper Chatfield collectively passed single-blind certification tests twice in the twelve months preceding the Ludwig Stop, a factor far more convincing than Mr. Nicely's unsupported conjectures." Finally, "The Court is ultimately without doubt that Todd properly alerted during the Ludwig stop, and that his alert provided Trooper Chatfield with valid probable cause to search further. Defendant's theory that Todd was somehow prompted to alert is no more than pure speculation without factual mooring, on which basis the Court will not suppress the evidence obtained in the search of Mr. Ludwig's car."

The fact that a Chief United States District Judge in this case declared Mr. Nicely's testimony (or theory) to be pure speculation is both interesting and educational.
Uploaded 12 April 2011
Reconsideration of Suppression Hearing:
U.S. v. Trestyn Case No. 09-CR-216-J

Narco Detector Dog finds 9.25 lbs. MDMA
Steven Nicely Defense Expert Witness
Ken Wallentine Prosecution Expert Witness

Federal Court Ruling
This is a re-opening of a Suppression Hearing that was originally ruled on in October 2009. The defense asked for a re-consideration after proclaiming they had new evidence that the K-9 Sniff Test was inappropriate. This is a case in which a Wyoming Highway Patrol Trooper stopped a vehicle on a traffic violation. During the justfied stop, a WHP Narco Dog named "Bonnie" indicated on the presence of drug odor emanating from the interior of the vehicle. Subsequent to the K-9 Sniff Test, 9.25 lbs. MDMA were located within inches of the K-9's indication.

The defense presented Mr. Steven Nicely as an Expert Witness in the Re-Consideration Hearing. Mr. Nicely testified that (1)K-9 Bonnie did not indicate on a drug odor, (2)K-9 Bonnie was not properly trained or reliable, and (3)K-9 Bonnie's certification and performance records were insufficient. Ken Wallentine testified that K-9 Bonnie was properly certified, well-trained, reliable, and did indeed alert on the drug odors.

The Court ruled on the Reconsideration in January 2010 and stated that "... Bonnie is properly certified to detect the controlled substances of [odors omitted by WNope] and that she is a well-trained and reliable drug dog." Further, "... Bonnie exhibited significant behavioral changes as she passed the rear hatch of the vehicle. The Court also observed Bonnie sit near the passenger rear side of the vehicle."

The fact that the Court pointedly declared in this case, "... I don't place any stock in the arguments that the drug dog was unreliable ..." which was totally opposite of Mr. Nicely's testimony, is both interesting and educational.
Uploaded 4 March 2011
Suppression Hearing Testimony & Ruling:
Utah v. Alegria Case No. 071700038

UHP Drug Dog finds14 lbs. Marijuana
Steven Nicely Defense Expert Witness

Handler's Report
Nicely Oral Testimony
Court Oral Ruling
Here are actual recordings from the court in this case in which UHP Sgt. Steve Salas deployed his K-9 "Crash" on a K-9 Sniff of a vehicle. The dog indicated on the presence of drug odor emanating from the interior of the vehicle. Sgt. Salas initiated a drug-related investigation and a quantity of narcotics were found.

The defense presented Mr. Steven Nicely as an Expert Witness. Mr. Nicely testified that Sgt. Salas cued his dog into an indication, that Sgt. Salas was not well-trained, that the dog was not well-trained, and that none of the Narco Dogs in Utah are well-trained.

The Judge's assessment of Mr. Nicely's testimony is very interesting and very educational.
Uploaded 26 March 2011
Suppression Hearing & Court Ruling:
US v. Beltran-Palafox, Case No. 09-40022-01/02-JAR

Steven Nicely Defense Expert Witness
Ken Wallentine Prosecution Expert Witness

Federal Court Ruling
This is a case just ruled on and printed 3 June 2010. During a justified traffic stop in Kansas, a certified Narco Dog named "Rony" indicated the presence of an illegal drug odor in the vehicle. Further investigation revealed a quantity of methamphetamine hidden in a compartment within the interior of the vehicle, within inches where K-9 Rory indicated. The defense argued that the K-9 was unreliable and, therefore, the Motion To Suppress should be granted.

Mr. Steven Nicely testified in this Hearing as the defense expert witness. He declared the following:
  • training and certification records should be so detailed that any training session could be reproduced exactly, even at a much later date;
  • there is a growing criticism of current drug dog certification standards;
  • he did not consider K-9 Rony to be well-trained;
  • drug dogs often respond to novel odors;
  • K-9 Rony's accuracy rate was only 38% (although records over a five year period showed a 91.7% accuracy rate); and
  • K-9 Rony did not give any indication or alert (even though K-9 Rony is not visible inside the vehicle).

    Mr. Ken Wallentine testified in this Hearing as the prosecution expert witness. He declared the following;
  • recent past performance is the best indicator of a K-9's reliability;
  • K-9 Rony was certified as a Narcotics Detector Dog just a few months before the incident in question;
  • K-9 Rony was certified via "Single-Blind" testing, the best practice currently used;
  • K-9 reliability is best established via known finds, as field work can present unknown circumstances;

    Judge Lungstrum ruled that Mr. Nicely has never been certified as a Dog Handler nor a Dog Trainer. He also declared that Mr. Nicely has never even seen K-9 Brindi during training or in the field. Judge Lungstrum ruled, "... the Court does not find Mr. Nicely's testimony persuasive ... the Court finds no basis to support Mr. Nicely's theory that Agent Boley prompted Brindi to alert and sit during the sweep of the Durango or that Brindi was not properly trained to be an effective drug-detection canine."

    Judge Lungstrum denied the Motion To Suppress K-9 Brindi's deployment. He stated, "... the Court finds that Brindi's alert to the presence of illegal narcotics in the Durango adequately supported probable cause to search the vehicle."

    This ruling regarding Mr. Nicely's testimony is interesting, in that it seems to be similar to testimony he (Nicely) has given in numerous other cases. Once again, his claim that K-9's must be trained according to what he terms as "behavioral science" has been rejected by a federal court. Further, his assertion that the Handler cued the dog - the same assertion he makes in many other cases - was found to have "no basis." Lastly, it is interesting that the Judge ruled that Mr. Nicely has never been certified as a K-9 Handler, much less a K-9 Instructor. This fact could certainly aid Narco Dog Handlers in future litigations.
  • Suppression Hearing & Court Ruling:
    US v. McDowell, Case No. 09-20133 JWL

    Steven Nicely Defense Expert Witness

    Federal Court Ruling
    This is a case just ruled on and printed 16 December 2010. During a justified traffic stop in Oklahoma, a certified Narco Dog named "Brindi" indicated the presence of an illegal drug odor in the vehicle. Further investigation revealed a piece of luggage on the interior of the vehicle with almost $140,000 US currency inside it. The defense argued that the K-9 was unreliable and, therefore, the Motion To Suppress should be granted.

    Mr. Steven Nicely testified in this Hearing as the defense expert witness. He declared that the Handler cued the K-9 to alert at the spot where the "Sit" indication occurred. Additionally, he testified that K-9 Brindi was not well-trained. He further testified that the "behavioral science" approach to Narco Dog training is the only acceptable practice.

    Judge Lungstrum ruled that Mr. Nicely has never been certified as a Dog Handler nor a Dog Trainer. He also declared that Mr. Nicely has never even seen K-9 Brindi during training or in the field. Judge Lungstrum ruled, "... the Court does not find Mr. Nicely's testimony persuasive ... the Court finds no basis to support Mr. Nicely's theory that Agent Boley prompted Brindi to alert and sit during the sweep of the Durango or that Brindi was not properly trained to be an effective drug-detection canine."

    Judge Lungstrum denied the Motion To Suppress K-9 Brindi's deployment. He stated, "... the Court finds that Brindi's alert to the presence of illegal narcotics in the Durango adequately supported probable cause to search the vehicle."

    This ruling regarding Mr. Nicely's testimony is interesting, in that it seems to be similar to testimony he (Nicely) has given in numerous other cases. Once again, his claim that K-9's must be trained according to what he terms as "behavioral science" has been rejected by a federal court. Further, his assertion that the Handler cued the dog - the same assertion he makes in many other cases - was found to have "no basis." Lastly, it is interesting that the Judge ruled that Mr. Nicely has never been certified as a K-9 Handler, much less a K-9 Instructor. This fact could certainly aid Narco Dog Handlers in future litigations.
    Suppression Hearing & Court Ruling:
    US v. Poghosyan, Baghdasaryan, Mansuryan, and Hakobyan, Case No. 10-100600-01,02,03,04-EFM

    Steven Nicely Defense Expert Witness

    Federal Court Ruling
    This was an incident in which a Narco Dog "Justice" from the Kansas Highway Patrol indicated on the exterior of two vehicles traveling in tandem and then jumped into one of the vehicles on its own intiative. Although only "gleanings" of marijuana were found in one of the vehicles, equipment associated with credit card fraud was discovered. K-9 Justice had a 100% success ratio in controlled environments prior to this incident and was certified by the Kansas Highway Patrol as a Narcotics Detector Dog.

    The Defense Expert Witness, Steven Nicely, testified that K-9 Justice was not well-trained, although he had never seen the dog perform. He also testified that Trooper Schippers cued K-9 Justice into indicating that day. Federal Judge Eric Melgren ruled that K-9 Justice was indeed well-trained and that no such cue-ing occurred. It is very interesting that, while Mr. Nicely presented a video with five K-9 sniffs by well-trained K-9's, Judge Melgran ruled that the K-9's on the video acted very similar to K-9 Justice.

    The Prosecution called Lt. Kyle Moomau of the Kansas Highway Patrol, to testify as its expert. Lt. Moomau is a Utah POST Certified K-9 Judge. As you read his testimony, you will see that he performed as one might expect from a K-9 Judge.

    The federal court denied the Motion To Suppress K-9 Justice's deployment. Judge Melgren stated, "In sum, the Court finds that the defendants have failed to carry their burden of showing that PSD Justice was unreliable on the day of the sniffs."

    The ruling of Judge Melgren regarding Mr. Nicely's testimony is interesting, in that it seems to be similar to testimony he (Nicely) has given in numerous other cases. Closer study of Mr. Nicely's testimony in this case and the Judge Melgren's ruling of that testimony could certainly aid Narco Dog Handlers in future litigations.
    Uploaded 10 January 2011
    Suppression Hearing & Court Ruling:
    US v. Gastelo-Armenta, Case No. 8:09CR92

    Steven Nicely Defense Expert Witness

    Federal Court Ruling
    This was an incident in which a Narco Dog "Skeen" from the Omaha Police Department indicated the presence of narcotic odor emanating from the interior of a vehicle stopped for a traffic violation. Just over 500 grams of pure meth was found very near the location where the dog indicated. K-9 Skeeter had been certified by the the Nebraska State Patrol via a single-blind evaluation protocol and had a reliable track record both in training and in deployment.

    The Defense Expert Witness, Steven Nicely, testified that K-9 Skeen was not well-trained, although he had never seen the dog prior to this Hearing. He made issue with the fact that the K-9 sniffed around the vehicle more than once. He also testified that Officer Bossman cued K-9 Justice into indicating that day. Federal Judge Gossett ruled that K-9 Skeen was well-trained and reliable and that no such cue-ing occurred. It is very interesting that Judge Gossett also ruled the following.

    "I have given little weight to Mr. Nicely's conclusions about Skeen's performance and reliability because, based on the information actually provided in his curriculum vitae and testimony, I am not persuaded that Mr. Nicely has the knowledge, skill, experience, training, or education to evaluate a dog trained to perform the functions required by law enforcement in the State of Nebraska. See Fed. R. Evid. 702. The gist of his testimony was only that Skeen's performance was deficient or unreliable under competing standards and methods used by the military and commercial vendors to train dogs for other purposes. I specifically reject Mr. Nicely's opinions that Skeen's behavior was cued by Officer Bossman and that Skeen did not indicate to the odor of an illegal drug."

    The federal court denied the Motion To Suppress K-9 Skeen's deployment. The ruling of Judge Gossett regarding Mr. Nicely's testimony is very interesting, in that Judge Gossett gives "... little weight to Mr. Nicely's conclusions ..." and says "I specifically reject Mr. Nicely's opinions...." Closer study of Mr. Nicely's testimony in this case and the Judge Gossett's ruling of that testimony could certainly aid Narco Dog Handlers in future litigations.
    Suppression Hearing & Court Ruling:
    US v. CLARKSON, No. 2:06CR734 DAK

    Steven Nicely Defense Expert Witness

    Federal Court Ruling
    This is a case wherein several issues arose in which the federal court validated its established standard that a Narcotics Detector Dog needs to be certified by a recognized entity to be deemed reliable and credible in federal court. This ruling is a model for any Agency or Handler who does not abide by that practice. The judge ruled against the Dog in this case. This is a great opportunity for me to make a stand about what is right and good about our court system. Although my thoughts are stimulated by the ruling in this case, they are not limited to the results of this particular ruling. Here goes.

    Some would complain when a person who is caught red-handed smuggling drugs in a vehicle are able to get off on a technicality. Some would complain when a K-9 sniffs a vehicle and indicates on a huge volume of illicit drugs that are found inside ... yet the defendant gets off on a technicality. Some would say, "How can this be ... how can this happen ... THAT PERSON HAD A HUGE AMOUNT OF DRUGS IN THE VEHICLE?"

    A guilty smuggler sometimes goes free because of the United States legal system, which is established such that it is "... better ten guilty men go free rather than one innocent man be imprisoned." That is the reason. This concept is most often attributed to a well-known 1760's jurist named William Blackstone, but others believe it is based in the incident involving God, Abraham, and the city of Sodom as related in Genesis 18:23-32. Regardless of the source, that is the reason.

    I have watched, with my own eyes, this concept in action on more than one occasion. In this case, U.S. v. Clarkson, a K-9 Handler deployed his K-9 to sniff for drugs. The Handler, who knows the K-9 better than anyone, testified that the K-9 indicated on drug odor. Unfortunately, the K-9's behavior was not on camera. It's body movements at the time of the indication were obscured by the vehicle itself. Nonetheless, the Handler swore under oath that his K-9 did indicate. Further, this K-9 was deployed without first being certified by the State of Utah to do so. Yet, the laws of the State of Utah do not require that a K-9 be certified prior to deployment, but rather, that it is "appropriately trained" and "appropriately deployed" (UCA 18-1-1). Perhaps this state law will be changed to comport with federal court rulings, that is not for me to say. This K-9 had, however, been evaluated by multiple State-Certified K-9 Judges and verbally declared to be reliable enough to be deployed. Even further, the Handler had not logged each and every training session the K-9 had participated in. The case may have had a different outcome if he had done these two things ... we will never know. Now, this brings me to my point.

    The federal judge ruled against the K-9 due to the fact that it had not been certified, had incomplete training records, and also due to the defense expert witness testimony given by Steven Nicely. He testified that the K-9's performance in the video was inadequate, although he could not actually see the K-9 make its indication. He also testified that the K-9's entire training experience was inadequate. This testimony was offered in spite of the fact that Mr. Nicely had never once seen the K-9 in training. I was tasked as the Prosecution's Expert Witness in this case. I watched the same video as Mr. Nicely did but came to a different conclusion. I have considerable experience with this K-9 from its initial training and also subsequently observing the K-9 after it left the basic training course. From my observation of the video and my personal experience with this K-9, I believe the K-9 did indeed smell and indicate on drug odor that night, in spite of the fact that it was not yet certified and did not have complete performance records.

    The state courts of Utah have ruled that a K-9 must be appropriately trained and appropriately deployed and the federal courts located in Utah have now ruled that a K-9 must be certified to be considered reliable. These constraints have been imposed against law enforcement personnel in the State of Utah in order to comply with the "... better ten guilty men go free rather than one innocent man be imprisoned ..." philosophy. I declare this is a good philosophy and it makes our country the greatest in the world, in regards to citizens' rights.

    Consider the civil rights declarations of the following historical figures as a comparison.
    1. German Chancellor Otto von Bismark: "... it is better that 10 innocent men suffer than one guilty man escape."
    2. Soviet Secret Police founder Ditto Feliks Dzerzhinsky: "... better to execute ten innocent men that to leave one guilty man alive."
    3. Colombian Military Prosecutor Major Nungo: "... everybody is guilty until proven otherwise ... better to condemn an innocent man than to acquit a guilty one, because among the innocent condemned there may be a guilty man."
    To be convicted of a crime in the United States of America, the burden of proof is upon the government, regardless of whether the suspect is truly guilty or not. That is our system. It is a good system. It causes the police to do their job in a manner that passes courtroom scrutiny, regardless of whether the suspect is truly guilty or not. When we as K-9 Handlers sit in the courtroom and listen to a defense expert witness being allowed to testify about a K-9's indication that he cannot even see or testify about training that he has never even seen, let us not be hasty to be critical. The judges are doing their best to comply with the philosophy that "... better ten guilty men go free rather than one innocent man be imprisoned ...."

    I will continue to testify to the professionalism of K-9's and Handlers whom I know to be reliable and expert in their skill-set. That is one of my functions as a law enforcement professional in a position of trust at one of the major Police K-9 training institutions in America for the past 20+ years. A recent survey revealed that Utah Police Academy K-9 Program graduates have seized in excess of 24 billion dollars of illegal drugs.

    In conclusion, on 16 June 2009, Steven Nicely sent me an email that says "Bet you don't have the guts to post the recent Clarkson decision.." Since that day, I have pondered the intent behind Mr. Nicely's statement, as it seems on face-value to be a personal attack. I feel no personal animosity against Mr. Nicely, although he has repeatedly denounced Police K-9's, in favor of numerous people who have been convicted of smuggling illegal drugs. He has also denounced me as a professional. Nonetheless, trained and reliable Police K-9's will continue to sniff out illegal drugs and, when called upon, I will continue to declare their reliability and competence when it appears to me they deserve it. When the court believes me, a guilty person will be convicted. When the court believes Mr. Nicely over me, it's OK. I will accept it as a product of the system of justice we all are protected by: "... better ten guilty men go free rather than one innocent man be imprisoned."
    Suppression Hearing & Court Ruling:
    US v. FRANCO, No. 2:07-cr-911 CW

    Steven Nicely Defense Expert Witness

    Handler's Report (coming soon)
    Federal Court Ruling
    This was an incident in which a veteran Narco Dog "Tyger" from the South Salt Lake Police Department indicated on the exterior of a vehicle and then on a gym bag (which contained a set of scales) inside the vehicle. A quantity of illegal drugs was also found on the suspect's person. K-9 Tyger had been POST certified each year over a six year period and was certified at the time of the incident.

    The Defense Expert, Steven Nicely, testified that K-9 Tyger's training was inadequate, although he had never seen the dog perform. He also testified that K-9 Tyger's training records were inadequate because they should be so detailed that each training session could be reproduced exactly - even years later - and that they must follow "the goals of science."

    The Prosecution Expert, Sgt. Wendell Nope, testified that a proper Handler becomes so attuned to his/her K-9's performance that s/he does not need to document every single behavior - as in "the goals of science" - to know when remedial training should take place. Further, he testified that a false alert cannot accurately be determined in actual deployments, but rather, only in controlled environments.

    The federal court denied the Motion To Suppress K-9 Tyger's deployment. Judge Waddoups stated, "Having heard this evidence, the court agrees that the level of record keeping proposed by Nicely is not necessary to prove a dog's reliability. One does not have to record details sufficient to reproduce the exact training session to know that a dog has been adequately trained." [Rulling 14:6-8]. This is a landmark case for Utah law enforcement, in that Mr. Nicely has testified numerous times in other Utah cases that K-9 training must follow "the goals of science" standard.
    Civil Litigation:
    HINES v. LOUISVILLE, No. 03-CI-02830

    Handler's Statement
    Plaintiff's Complaint
    Plaintiff's Expert Witness Report
    Defense Expert Witness Report
    Appellate Court Ruling
    This was an incident wherein the police did everything they could think of to try NOT to use deadly force against a suspect, and still got sued for their actions. This is also a prime example of a situation wherein the postulation of a Plaintiff's Expert Witness should be closely scrutinized.

    The Louisville Metro Police Department attempted to serve a felony warrant on an individual at his home. He barricaded himself inside with a butcher-knife in one hand and a metal skillet in the other. After two hours of attempted negotiation, they used diversions + bean-bags + a K-9 in an effort to subdue the individual without having to resort to deadly force. The individual was unfazed by the diversions, withstood the bean-bags, and stabbed the K-9. He then focused his efforts on the K-9 Handler and lunged at him with the butcher-knife in the attack position. A SWAT Officer reacted to the aggression by firing a burst from his rifle into the attacker, undoubtedly saving the K-9 Officer from possible death.

    The federal appeals court affirmed the original motion of Summary Judgement in favor of the Police Department and its officers.
    Suppression Hearing:
    Iowa v. Coughlin, No. FECR017152

    Court Ruling
    This is a case that occurred in Cedar County, Iowa in which an Iowa State Patrol Trooper stopped a vehicle and, after noticing multiple indicators of possible drug smuggling, initiated a K-9 Sniff. The K-9 gave a profound "alert" to the odor of drugs but did not "indicate." Just over 25 lbs of marijuana was found in the vehicle. The defense produced Dr. Dan Craig as an Expert Witness. Dr. Craig testified that since the K-9 did not exhibit a trained "final response" that the K-9 could not be deemed reliable.

    The Judge's ruling, especially regarding Dr. Craig's expertise "... As a matter of fact, Craig has never trained or handled a drug detecting dog ..." is very educational. Conversely, the Judge declared "... Mr. Nope is more expert in the area of drug detection canines that [*than] Dr. Craig ..." [*added by WNope for grammar clarification].

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