Fort Bend County Bloodhound Trainer Sued In Federal Court For Second Time In 11 Months

Fort Bend County Sheriff’s Deputy and bloodhound trainer Keith Pikett has been sued in federal court for the second time in less than a year over a scent line-up involving his dogs.

Both lawsuits were filed by the same attorney, Rex Easley Jr. of Victoria.

The most recent suit was filed Tuesday on behalf of Calvin Lee Miller, a 42-year-old Yoakum man arrested in March on charges of sexually assaulting a woman, and robbing another. But DNA evidence cleared him in the cases, and he was released earlier this month from Lavaca County Jail where he’d been incarcerated.

Along with Pikett, Fort Bend County and county Sheriff Milton Wright were named as defendants in the suit. So was the City of Yoakum and Yoakum police investigator Collin Campbell.

Pickett, a longtime bloodhound trainer well known in law enforcement circles, was asked to assist in the case and conducted what’s known as a scent lineup.

Miller’s suit indicates Pickett’s dogs were presented with a swab of cloth that had been wiped across Miller’s skin, along with swabs from other lineup participants. Then the dogs were presented with a blanket taken from the assault victim’s bed. The dogs’ actions indicated Miller’s scent was on the blanket. However, the Victoria Advocate reported that DNA evidence obtained the case excluded Miller from being considered a suspect.

Miller’s suit alleges that the scent line-up was “rigged to be result-oriented, that is, to maliciously and intentionally implicate” Miller.

“…The forensic protocol and methodology used by Defendants rendered the scent line-up not only unreliable but so tainted and cross-contaminated as to be consciously indifferent to the rights of Plaintiff,” the suit states. “Mr. Pikett, the supposed K-9 expert, advised and participated in every flawed procedure used.” The suit suggests those procedures in effect helped deny Miller’s 4th Amendment rights.

Sheriff Wright was named in the suit as being “complicit” in Pikett’s alleged actions, and the suit suggests Wright and Fort Bend County, by failing to “control” Pikett’s actions, had essentially made them “official policy.” The suit also stated that Fort Bend County has benefited from an “income stream” derived from fees paid for Pickett’s work for other law enforcement agencies.

Neither Pikett nor Wright could be reached for comment Wednesday morning. Assistant County Attorney Randy Morse is representing Pikett in the Miller suit and an earlier one stemming from a Victoria murder investigation.

“It’s a far cry from making allegations and proving them in court,” Morse said of the two suits Easley has filed.

Morse denied Fort Bend County enjoys an income stream from Pikett’s work, which he said has been carried out on behalf of the FBI, the federal Bureau of Alcohol, Tobacco and Firearms, the Texas Attorney General, and cities including Houston, Bellaire, Pearland, and Galveston.

Morse also said Fort Bend County “didn’t have any policy to violate people’s civil rights.”

The earlier suit stems from the death of Sally Blackwell, a 53-year-old Texas Child Protective Services worker who was abducted from her Victoria home and murdered on March 15, 2006.

A 25-year-old Victoria man, Jeffrey Grinsinger, pleaded guilty to kidnapping and killing the woman.

But before Grinsinger’s confession, former Victoria County Sheriff’s Capt. Michael Buchanek was one of at least two people named in local news reports as a “person of interest” in the case.

In June 2008, Easley filed a federal lawsuit saying Buchanek’s constitutional rights had been violated.

Easley said in the suit that “improbable cause and factual assertions” in a search warrant were used by Victoria County law enforcement officers, who then “began a course of harassment, distress and terror” upon Buchanek.

Seeking unspecified damages, the suit names as defendants the Victoria County Sheriff’s Department, Sheriff Michael O’Connor, the City of Victoria and several individual law enforcement officials, including Pikett.

Easley contended last summer that Pikett acted with Victoria law enforcement officers to “lead” his bloodhounds from where Blackwell’s body was found to a neighborhood near Buchanek’s house, over a winding 5.5-mile route.

“Pikett didn’t even know where he was going, so how could he be leading them?” Morse said. And he noted that the officers that supposedly colluded with Pikett have been dismissed from the case.

He added that he’d just taken his first look at Miller’s complaint and didn’t want to comment on the allegations.

But of the Buchanek lawsuit, Morse said he doesn’t believe Easley will be able to prove the allegations.

Morse said he noticed similarities in the two suits Easley filed, adding that the Victoria attorney “not only bends some of the facts, he pleads the same thing in both cases.”

1 year later, the search continues

MARSHALL - There is evidence of Brandon Swanson in or near the Yellow Medicine River, it just hasn't been found yet, three local sheriffs said earlier this week.

"There is evidence of him somewhere. We just have to find him somewhere," Yellow Medicine County Sheriff Bill Flaten said.

"I can't explain why we haven't found anything," Lincoln County Sheriff Jack Vizecky said. "Recently, a week ago, the river gave up a snapping turtle shell and from a distance of 30 feet that appeared to be a bone. I have a coon skull in my office. I saw a coon skull. I'd have certainly seen a human skull."

The river has given up nothing in the year since Swanson was reported missing. Swanson of Marshall was 19 when a cell phone call with his parents ended abruptly on May 14, 2008. His car was found in a ditch along the Lincoln and Lyon County line road near Taunton. Multiple searches in the past year have focused mainly on areas near the Yellow Medicine River in parts of Lincoln, Lyon and Yellow Medicine counties near Taunton and Porter.

The last official law enforcement-led search was around May 19, 2008, but law enforcement said they've continued to follow up on tips and leads that sometimes include calls to California and elsewhere.

"We continue to explore every opportunity to find him," Vizecky said.

"If we get any information, we follow up on everything. We have to," Mather said.

"There is no indication of foul play," Vizecky said. "Every indication is that some incident put him in peril, but there is no sign or evidence to suggest anything else was involved."

The three sheriffs said their departments have been involved in the case since early after Swanson was reported missing, but the Lyon County Sheriff's Department was the first to be given the missing persons report from Swanson's parents, Brian and Annette of Marshall.

But as the investigation indicated Swanson disappeared in Lincoln County, Vizecky and his department took the lead investigative role.

Swanson had called his parents to tell them his car was in a ditch near Lynd. The Swansons agreed to pick up their son and headed from Marshall toward Lynd.

"The last call to his parents ended about 3:12 a.m. (on May 14)," Vizecky said. Swanson had first called his parents at about1:54 a.m., Vizecky said.

Lyon County was contacted at about 6:29 a.m., Mather said.

The search started near Lynd and while deputies searched, the cell phone company was contacted. Eventually, Swanson's call was traced to a tower in Minneota. Swanson's car had been found in a ditch near Taunton at about 12:30 p.m. May 14, 2008, Mather said.

Lyon County Deputy Eric Wallen said the three hours between the last cell phone call and the missing persons report means three hours were lost in the search for Swanson.

"If (the parents) had called right away, we could have traced the cell phone call to a tower sooner and at least we could have found the car sooner," Wallen said. "We found the car nine hours after that last phone call ended."

DOG USE

When Swanson's car was found, a search dog from Chippewa County was used at the scene.

Wallen said law enforcement secured the car but moved outside the immediate area "so we didn't destroy the scent."

"The first bloodhound did not take," Vizecky said. The dog did not respond to Swanson's scent on an item. The dog did respond later to a second item said to be Swanson's, Vizecky said.

"The dog went to the Yellow Medicine River in Section II of Alta Vista Township," Vizecky said.

A dog team from Codington County, S.D., joined the search May 15.

The dog team indicated interest more north to Porter in Eidsvold Township but also showed interest in Section II of Alta Vista Township, Vizecky said.

"A Codington County cadaver dog on May 22 floated down the river and that dog gave an (interest) at a location southeast of the original dog indicated on May 15. About 600 yards away. And 600 yards in a river bed is about two hours," Vizecky said.

This dog has a history in Lincoln County and has found a body in Lake Benton, Vizecky said. But it had no experience in fast-moving water in a river, Vizecky said.

The search focused on areas of Lincoln County, where the three sheriffs said they still believe Swanson disappeared.

THE YELLOW

MEDICINE RIVER

Vizecky said he walked the river June 2 and the water level is much like it is today.

But the river was high and had overflowed its banks in some locations. Heavy rains fell in the first weeks of Swanson's disappearance which changed the level of the river, the makeup of the river and the landscape surrounding it.

"The terrain is rugged out there," Flaten said. "That river is full of downed trees. Every day the river is different."

"A sand pile that wasn't there yesterday will be there today," Mather said.

"I was walking the river and saw a search dog disappear from sight into a sink hole and then appear again on the other side," Vizecky said.

"Who knows how big those sink holes are," Mather said.

Swanson could have been trapped in a sink hole in the river, they said.

His body might have covered with trees and other debris during the searches. If covered tightly enough, the debris would trap any scent he'd have, Vizecky said.

OTHER SEARCHES

Airplanes and helicopters have also been used in the search.

"We had them fly the tree tops over the river, Mather said. "Jack and I went up outside the original search area."

While deputies and volunteers worked on the physical search, other deputies continued the investigation by talking with Swanson's friends and others and following up on information.

"We interviewed a lot of people, some multiple times," Mather said.

Soon after Swanson was reported missing, his name, DNA and other information was entered into a computer network for missing persons.

"That was right off the bat," Mather said.

The network allows for law enforcement in other areas to be informed of the missing person.

The sheriff's department also had posters of Swanson made that were distributed to law enforcement and others.

"There are a lot of rumors and innuendos out there," Vizecky said. "You follow up on the information you get."

BRANDON'S LAW AND OTHER VOLUNTEER SEARCHES

Swanson's parents have worked with legislators to pass Brandon's Law, which they have said will create a uniform more aggressive response from law enforcement when a young adult or adult in dangerous circumstances disappears.

Mather said Lyon County did what Brandon's law wants law enforcement to do in terms of gathering DNA and other evidence and submitting to a network for missing persons.

The response in Swanson's case was a joint effort, Flaten said.

But law enforcement can only be as aggressive as resources allow, Flaten said.

"We've got limited resources," Flaten said. Local sheriff's departments may have 10, seven or fewer full-time deputies, Flaten said,

The Swanson family has worked with at least two volunteer search coordinators. The most recent coordinator heads a team of volunteers who have worked on various search-and-rescues in Minnesota and elsewhere.

The searches after May 19 have not been headed by any sheriff's department, the three sheriff's said, but they do work with volunteers.

Flaten said the most recent team is searching an area of Yellow Medicine County and is cooperating with the sheriff's department.

Flaten said the team is skilled and has its own method of approaching searches. "...we haven't found Brandon yet, but clearly we are identifying more areas where he's not..."

FUTURE SEARCHES

Vizecky said he can't say for certain if any more law enforcement-led searches will be conducted for Swanson.

Each day Swanson is missing, "it increases the possibility the evidence will be more spread out," Vizecky said.

While he is uncertain of an organized search, law enforcement will continue to monitor the river and continue to investigate, Vizecky said.

"We want to work together to bring this to an end," Mather said.

"There is not one deputy or law enforcement here that does not want to find him," Flaten said.

How man’s best friend can help him evict his nastiest bedmate

The apartment, a vast three-bedroom on the Upper West Side, is the kind most New Yorkers would clamor to live in, were it not for its current occupants. Enter Radar the beagle, indifferent to the incongruity between the space and his mission. “Find the B’s,” instructs his handler, Carl Massicott of Advanced K9 Detectives, a service based in Milburn, Connecticut. The apartment’s owner, a father of two who works in finance, anxiously oversees the investigation. If Radar can pinpoint the source of the problem, which has plagued the master bedroom for nine months, targeted applications of pesticide and steam—as opposed to total fumigation—may yet save the day.

Pepe Peruyero teaches Nudie,
a Chinese crested terrier mix,
to paw where she finds bedbugs.

Image credit: Eric Zamora

Then, worst fears are realized: Radar halts in front of the 5-year-old’s bedroom closet. Tupperware boxes containing the trappings of childhood are methodically withdrawn—a bin of Legos here, blocks there. Radar sniffs right by them, then decisively paws a shoebox. Sure enough, a single bedbug, plump with blood, is hunkered down within. “This one’s fed recently,” Massicott confirms, while the apartment owner runs his fingers through his hair, stricken. Radar, wagging his tail, accepts a bit of kibble as a reward.

Radar’s professionalism is a testament to Pepe Peruyero, owner of J & K Canine Academy in High Springs, Florida, who trained the dog for four months, then sold him to Advanced K9 for $9,500. (“That includes a week of handler training,” Peruyero explains. “It’s a package deal.”) Peruyero boasts that his program trains dogs to distinguish the legitimate threats of live bugs and eggs from the dead bugs, cast skins, hatched eggs, and fecal matter whose detection can prompt unnecessary pest bombing.

Bedbugs, largely eliminated from developed countries after World War II, are back, and harder to kill than ever. The less-than-quarter-inch bugs and their miniscule eggs live in mattresses, books, crevices in the floor. The little suckers (pun, alas, intended) can go more than a year without feeding. And unlike termites, which cluster in the thousands, bedbugs can make trouble in very small numbers; if a single female survives an extermination, she and her hatching eggs will reinfest the space. Pest-control companies consider bedbugs their biggest challenge. After the banning of DDT and other harsh pesticides, exterminators have had to rely on something called Integrated Pest Management, an “environmentally sensitive,” multipronged approach. They can, for example, bake bugs to death by warming a room to 130 degrees using industrial-strength heaters; use mega vacuum cleaners to suck the bugs out; or apply Cryonite, a carbon-dioxide snow that freezes the fluids in the insects’ cells, causing instant death.

Bedbug dogs don’t actually do anything to bedbugs. But if the idea is to use less pesticide, dogs may be your best bet. A controlled experiment by entomologists at the University of Florida found that dogs were 98 percent accurate in locating live bedbugs in hotel rooms. In a hotel or apartment building, dogs can determine which rooms require attention, avoiding the telltale stench of mass fumigation and saving thousands of dollars by treating only the affected rooms. (Not that the dogs are cheap: they typically cost about $325 an hour.) According to recent field research, one trained dog-and-handler team is more effective at detection than trained humans alone, and accomplishes the job in significantly less time.

“You see this?” says John Russell of New Jersey’s Action Termite & Pest Control, pointing into an overstuffed Manhattan closet where one of his dogs, a black Lab named Sara, has indicated a problem. “Clutter! That’s why bedbugs are so hard to find.” The apartment’s tenant, who has lived in his one-bedroom for 34 years, hovers nearby. When Sara noses one of the many jackets within, the tenant grabs it. “I’ll just throw it out,” he says, ushering the garment into the hallway.

Sara isn’t one of Peruyero’s dogs, but a graduate of a competing outfit, the Florida Canine Academy, which claims to have been the first to enter the bedbug business, and also certifies teams to detect bombs, drugs, money, weapons, termites, and arson. Florida Canine’s trainees, selected for their work ethic, drive, and desire to please, are taught to gesture with their nose, because, “dogs who give the paw,” the owner, Bill Whitstine, says scornfully, “can scratch furniture or end up spreading the bugs around.”

Rival trainers commonly accuse each other of failure to teach dogs to distinguish between live and dead bugs. The National Entomology Scent Detection Canine Association sprang up in 2006, partly in response to “false alerting” problems among bug-sniffing dogs. “We were really concerned that a few dogs improperly trained could tarnish the whole industry,” the president, J. Louis Witherington, told me. Still, disagreement persists about the best way to train and accredit bedbug dogs.

“A lot of programs have been successful training narcotic dogs, bomb dogs, arson dogs,” Peruyero says. “But it’s a totally different world with bedbug dogs. The only thing tougher is training dogs to detect melanoma.”

‘Dedicated’ volunteers, dogs find Zinkhan’s body

The Atlanta Journal-Constitution

Sunday, May 10, 2009

Law enforcement officers spent two weeks looking for George M. Zinkhan III. In the end, it was a trained team of civilian volunteers and their dogs that found his body.

The former University of Georgia professor was wanted as a suspect in the April 25 killings of his wife and two men outside a theater in downtown Athens. The search ended Saturday morning in a rural part of western Clarke County, when cadaver dogs found Zinkhan in a shallow grave police believe he dug before firing a bullet into his head.

The grave was covered in enough debris and dirt to ensure, as the Athens-Clarke County police chief noted at a press conference Saturday, that Zinkhan would not be easily found.

A dog and handler team with Alpha Team K9 Search and Rescue located Zinkhan hours after the start of its search Saturday.

“We try to look at a search through the eyes of a person who’s lost,” said Stuart Sample, Alpha Team’s founder and president. “If it’s a child, they’ll try to find water. If it’s a person with Alzheimer’s, they’ll try to get home.

“We tried to look at it as a despondent person would,” who may seek more cover, he said.

The Athens-Clarke County Police and U.S. Marshals turned to the search team on Thursday for help. The Dallas-based team is made up of about nine dogs, each trained to detect by scent, plus 15 handlers and support staff.

A team of volunteers and two cadaver dogs spent 10 hours Friday searching the dense woods for Zinkhan. When one of the dogs — a 5-year-old German Shepherd named Circe — showed some behavior changes, causing the handlers to believe she was on to something.

They decided to cll off the search for the day and return on Saturday when the dogs were rested.

Saturday’s search lasted about 10 minutes. Madison, a 7-year-old Australian Shepherd, did what she trained two years to do when she led the volunteers to Zinkhan’s buried body at 9:50 a.m.

The team normally does not participate in law enforcement efforts that might put the teams in harm’s way. Dog and handler teams help look for missing children, people who have wandered off, and those people believed to be dead.

“Typically, we do not do fugitive work, unless there is the expectation that the person is deceased,” Sample said. “Our guys will only deploy for lost or missing persons, or persons likely to be deceased.”

Handlers and their dogs responded to an average of two to three requests for help a month, Sample said. The teams do not charge for their services.

The cost of training a search dog can run as much as $5,000. A nonprofit organization, the search team has been operating for five years. The handlers foot the bill for training expenses, Sample said.

“We tell people it takes 18 to 24 months to properly train the right dog to be able to do search and rescue work,” Sample said. “We’ve washed out a lot of dogs of good character and a tremendous amount of drive, that don’t have what we need.”

Handlers and their dogs spend about 15 hours a week on basic training alone, more hours on specialized training.

“At the operational level, they are truly the tip of the sword,” Sample said of the dogs, which he called some of the best trained and qualified in the country in their roles.

“As volunteers, that’s very difficult to maintain,” he said. “We take a lot of time from our families, and in some cases our jobs.”

Sample said the volunteers are dedicated to their roles and want to use their training to give back to the community.

“These are some of the most dedicated, toughest people you’ve ever met,” he said. “They never quit, they will never give up, and they will give every part of the heart and soul to a search effort, to bring somebody home.”

Why reliance on sniffer dog evidence may throw us off the scent in trials

Almost a decade ago, a man was convicted and imprisoned solely on the basis of sniffer dog evidence, but could it have been a miscarriage of justice?

On the night on 11 January 1999, the occupier of a house in Stoney Barton, Westleigh, Devon, discovered an intruder in his house and telephoned the police.

A police dog handler who attended the scene later gave evidence in court stating that the animal had gone straight from the house and stopped beside a car parked half a mile away.

Inside it was Alvyn Oldfield, who told police that he had been sleeping rough in a nearby barn. He said that it was cold and he had sought shelter inside the car, which he found unlocked, and denied any involvement in the burglary.

Oldfield chose not to give evidence at the trial. The handler told the court that the dog had followed a track from the house and that it had stopped at the car because that was where the scent trail ended. There was no other incriminating evidence in the case.

In his summing up, the judge directed the jury to consider the handler's evidence "with circumspection" because a sniffer dog might not always be reliable and was not subject to cross-examination. These are the only directions a judge is required to give in relation to tracker dog evidence.

Research suggests that there are many factors that can influence the performance of a tracker dog. Unlike the direction given by a trial judge in relation to visual and voice identification by human witnesses, the jury is not told which factors may lead to error by the dog.

Andrew Taslitz, professor of law at the University of Pittsburgh, published a comprehensive analysis of the use of canine evidence in North America in 1990. He concluded that such evidence is imbued with mythical qualities about a dog's abilities and is likely to be overvalued, misunderstood and misused by jurors.

No mention was made in the judicial direction of the possibility that the handler may have been mistaken in his interpretation of the dog's behaviour. But the accuracy of dog tracking can only be appreciated through an understanding of the science of scent and the biology of canines. And police dog handlers do not claim to have any expertise in such disciplines.

The jury convicted Oldfield and he was sentenced to three years' imprisonment. In February 2000, he was refused permission to appeal. The court of appeal based its decision on the fact that the trial judge had followed the guidelines on tracker-dog evidence laid down in the case of Pieterson and Holloway (1995), by directing the jury to look at the evidence of the dog handler with circumspection.

In Pieterson and Holloway, the evidence of the tracker dog was peripheral to the prosecution case. In Oldfield's case, the dog handler's testimony was the only evidence to consider because the defendant chose not to testify.

It has taken several legal committee reports and a mountain of scientific research to bring miscarriages of justice based on visual and voice identification to light, and for appropriate rules to be drawn up on their admissibility. How long will it be before identification based on canine scent is subject to such rigorous analysis?

Amber Marks is the author of Headspace: On the Trail of Sniffer Dogs, Wasp Wardens and Other Dumb Friends in the Surveillance Industry

Pot seizures made at San Luis, Ariz., port of entry

Marijuana with a collective street value of more than $336,000 was seized in separate cases at the U.S. port of entry at San Luis, Ariz., last week, U.S. Customs and Border Protection said.

The largest of the four seizures kept more than 83 pounds of pot off the street on April 27 when CBP officers found the pot, wrapped in 38 packages, concealed in the dashboard of a Chevrolet Malibu driven across the border by a 23-year-old U.S. woman, CBP said.

The pot was found after a narcotics detector dog alerted officers to the possible presence of drugs.

The marijuana was valued at $132,880.

The smallest seizure also came that day when officers found four pounds of pot in the rear seat area of a Jeep Cherokee driven to the port from Mexico by a 20-year-old U.S. male. That seizure also came after a drug-sniffing dog found the scent of drugs, CBP said.

Teresa Small, a spokeswoman for the port, said CBP officers aren't sure if the pot was intended for personal use or for distribution. It was valued at $5,632, an amount CBP said is smaller than the typical marijuana seizure at the San Luis border crossing.

Twenty packages of pot weighing more than 47 pounds and valued at $75,504 turned up April 28 in a search of a Chevrolet Silverado truck, CBP said. The driver, a 40-year-old Mexican man, was arrested, while two passengers were released.

On Thursday, an 18-year-old U.S. man was arrested after 30 packages of marijuana weighing more than 76 pounds was found in the quarter panels of a Chevrolet Nova he had driven across from Mexico, CBP said. The pot, found in a search prompted by a drug-sniffing dog's alert to officers, was valued at $122,000, CBP said.

All four unidentified drivers of the vehicles involved in the seizures were turned over to county officials for prosecution, CBP said.

Robbery charges dismissed in attack of DeWitt County woman

YOAKUM - An aggravated robbery charge against a 42-year-old Yoakum man accused of attacking two elderly women was dropped Monday.

"The victims could not identify Mr. (Calvin Lee) Miller in the live line up. In view of that, we chose to dismiss the case," said Michael Sheppard, district attorney for DeWitt County.

Miller was charged with robbing a 66-year-old Yoakum woman in her home in late January.

On Monday, Justice of the Peace Peggy Mayer signed an order dismissing that charge.

"After due consideration of all attendant circumstances of the case, the state believes that prosecution at this time will not serve in the best interest of criminal justice," Sheppard wrote in the motion to dismiss.

Miller is still being held in the Lavaca County Jail on a charge of aggravated sexual assault. He is charged with sexually assaulting a 79-year-old Yoakum woman in her home in late February.

Sheppard said a drug possession charge also remains active against Miller. He was charged with having cocaine in his possession when Yoakum police officers arrested him in March.

"We're grateful," Miller's attorney Bill Caraway said of the dismissal.

Caraway said he hopes to meet with Lavaca County district Attorney Heather Hollub this week when she is in Hallettsville on other court matters.

Sheppard said officers did have evidence - initial identification and scent evidence - to implicate Miller.

Lavaca County had exonerating evidence in its case - the DNA did not match the evidence collected from the victim - but DeWitt County did not, so that raised the need for the line up. The line up was conducted at the Victoria County Sheriff's Office on Friday with the help of Victoria Sheriff T. Michael O'Connor.

The district attorney said if further evidence is developed against Miller or any other suspect, the case could be filed again.

If the charges are dropped in Lavaca County, it means that "clearly they don't have the attacker in custody and that is very distressing and concerning for the Yoakum Police Department and Texas Rangers who are working very hard on the case," Sheppard said.

Yoakum residents should be very careful and keep their doors locked, he added.

The two women lived near each other and were both attacked early in the morning in their homes.

Yoakum straddles DeWitt and Lavaca counties.

Canine Identification Requires Kelly Hearing—Court of Appeal

Evidence of scent identification by a trained dog matching a criminal defendant in a lineup to crime scene evidence cannot be admitted without a hearing to determine the scientific reliability of the technique, this district’s Court of Appeal ruled Friday.

Writing for Div. One, Justice Robert M. Mallano said it was error for Superior Court Judge Francis J. Hourigan III to allow the canine evidence matching Jeffrey Dewayne Mitchell to shell casings recovered at a murder scene without conducting a hearing under People v. Kelly (1976) 17 Cal.3d 24,

Under Kelly, proponents of evidence based on new technology must show it has achieved general acceptance in the relevant scientific community, establish the qualifications of the expert testifying, and prove the procedures were correctly employed.

Mallano noted that instead of evaluating the match detected by Reilly, the nine-year-old Labrador retriever used by the Los Angeles Sheriff’s Department to match Mitchell to the casings, under the Kelly test, Hourigan relied on cases involving dogs which tracked the scent of suspects. The justice pointed out that one of those cases—People v. Malgren (1983) 139 Cal.App.3d 234—required for admission a showing not possible in Mitchell’s situation.

Tracking Evidence

“The parties do not dispute that under well established law dog tracking or trailing evidence does not involve a scientific technique within the meaning of Kelly,” Mallano wrote. “But the differences between this type of evidence and evidence derived from scent identification lineups require a dramatic revision of the final element of the Malgren test, that ëthe trail had not become stale or contaminated.’”

Mallano said he wasn’t questioning the possibility that Reilly was capable of detecting scents as much as several months old, even on items that had been subjected to heat or fire, and of alerting when encountering an individual who had handled them, as the dog’s trainers claimed. But he said the case was the first in which California’s appellate courts had considered that type of scent evidence.

The justice declared:

“We do not suggest that Reilly’s feats are beyond belief. Canine ability to discriminate scent has a physiological, and therefore in its most fundamental sense, a scientific basis....

“Nevertheless, we are concerned in this case with the possibility that the scent of the shell casings found at the scene of the shooting may have been affected by the heat and pressure of being fired from a gun, the passage of time between when the casings were purportedly touched by defendant Mitchell, the conditions under which the casings were stored, and collection of the casings’ scents by the scent transfer unit. Dog handlersÖ testified that a scent will remain on an object for two to four months after it has been touched and that Reilly had succeeded in lineups conducted with objects that had been burned beyond recognition or surgically sterilized. But no effort was made to present information from any academic or scientific sources, let alone peer review journals, regarding these testimonial assertions. Thus, we are left with anecdotal rather than scientific explanations of Reilly’s capabilities.”

Scientific Evidence

Nor, Mallano said, had any scientific evidence been presented—either at the trial court level or on appeal—to support the claim that each individual has a unique scent.

“If each person’s scent is unique, it may be analogized to DNA,” the justice observed. “In contrast to the unsubstantiated claim of uniqueness here, the uniqueness of each person’s DNA as expressed by the statistical probability of a random match between two people was the subject of extensive litigation under Kelly.

Even if Kelly did not apply, Mallano said, a foundational showing greater than that presented before Hourigan, which largely involved Reilly’s training and record of success in matching items to persons who had touched them, would be required before scent lineup evidence should be admitted.

“In tracking and trailing, there is a history of canine performance which provides the basis for the fifth Malgren element—that this type of evidence will be admitted if it is shown that the dog was put on a fresh trail,” Mallano declared. “For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person’s odor, beyond the mere experiences of one trainer and one dog.”

The justice added that the Kelly requirements would also apply to establishing the scientific validity of the scent transfer unit, a device described as a “essentially a modified dust buster” used by Reilly’s handlers to transfer scent from the shell casing to a gauze pad, which was then given to Reilly to sniff.

But Mallano said the erroneous admission of the scent evidence was harmless in view of the quantity of other testimony linking Mitchell to the 1999 gang shooting that led to his first-degree murder conviction. He noted that a co-defendant, against whom the evidence was similar and if anything weaker, was also convicted.

It was not reasonably probable the jury would have acquitted Mitchell if the scent evidence had been excluded, Mallano said.

Justice Reuben A. Ortega and Presiding Justice Vaino Spencer concurred. The case is People v. Mitchell, 03 S.O.S. 3789.

This breakthrough electronic nose was able to identify the presence of cancer cells with an accuracy of 92 percent.

While the Sense of Smell Lab has put its focus on developing products such as the innovative aromapod, research into the power of this sense is gaining prominence in many facilities and universities across the globe.

New research by a team of Israeli scientists, who have been working with olfaction and a cure for cancer, believe they are a step closer to diagnosing this disease at an early stage.

The majority cancer patients who survive for a year or more are those who discover the presence of cancerous tissue early on. They usually respond well to treatment and live to tell their journey.

Some forms of cancer evade detection even when the proper scanning methods are used and come to light when it’s often too late to save the patient’s life. For people who have lost a loved one to cancer, the question often asked is – why wasn’t this detected earlier, in time to save his or her life?

The new olfactory device is modeled on the olfactory system of the dog and is capable of detecting cancer in the early stages by sniffing the breath of patients. Cancer tumors emanate molecules that circulate through our blood to the lungs and leave the body when we exhale. The electronic nose is capable of detecting the presence of this molecule and therefore able to detect the presence of cancerous tissue in the early stage of development.

The results of the clinical trials, carried out on 100 patients, some whom had cancer and others who didn’t, showed that the electronic olfactory device was able to identify the presence of cancer cells and to pinpoint the location and nature of the tumor with an accuracy of 92 percent.

Spokesman for the team said that while the research is in its early stages, the news comes as a ray of hope for the millions of people who live in dread of succumbing to the disease. The test is also a breakthrough, since it is non invasive and it takes very little time as opposed to a scan or fluid test.

This news is a welcome to the research for a cancer sure and gives more credence to the power of our olfactory system to detect disease.

Police dogs win in state's high court

Score one for the dogs.

The state’s top court Monday unanimously said a trial judge was correct in allowing a Richland County jury to hear evidence that a now-retired Columbia police tracking dog named Aurie located an armed robbery suspect in 2004.

Aurie, a German shepherd, found Gary A. White a short time after the robbery with the gun believed used in the robbery, the S.C. Supreme Court said in its ruling. White was convicted in 2005 and, because of the state’s “two strikes” law, was sentenced to life in prison.

White in his appeals contended the dog tracking evidence wasn’t reliable. But the Supreme Court disagreed.

“There was ample evidence concerning the training and reliability of the dog, Aurie,” Justice John Kittredge wrote for the court, noting the dog and his handler at the time of White’s trial had been partners for more than seven years and had conducted about 750 “tracks” together.

The court’s ruling for the first time established guidelines for S.C. judges to use in determining whether police dog tracking evidence is reliable, said those familiar with the case.

“It’s a victory for police dogs in the state of South Carolina,” said Columbia police Sgt. Andre Williams, who oversees the department’s K-9 unit. “It’s a huge case.”

The ruling comes as Columbia city officials are debating whether to do away with the police department’s K-9 and mounted patrol units. A total of 13 dogs and three horses could be laid off by July 1 because of budget shortfalls within the police department, The State newspaper reported Sunday.

Williams said he hopes Monday’s ruling will cause city officials to fund the K-9 unit. Most City Council members polled by The State said they would likely retain the dogs, though not the horses.

“It just goes to show how important a canine is to police work,” Williams said.

LaNelle DuRant, a state appellate defender who handled White’s appeal, said that although she was “disappointed in the end result” of Monday’s ruling, she agreed with the court’s establishment of guidelines in determining the reliability of dog tracking evidence.

“When you’re sending somebody away for life, it needs to be reliable,” she said.

DuRant described the case as a “novel” legal issue in South Carolina, noting other states have established similar guidelines for dog tracking evidence.

Aurie and his former handler, Officer Richard Gunter, tracked White, then 22, to a nearby wooded area a short time after the April 19, 2004, robbery at a convenience store at Garners Ferry Road and Old Woodlands Road, Williams said.

The court in its ruling gave this account of the robbery:

White, who drove to the store with two other men after midnight, held a gun to the neck of a store clerk while one of his accomplices stole cash, lottery tickets and an 18-pack of beer. A drunken White fell unconscious momentarily before being awakened by his accomplice and forcing the clerk toward the door.

A city officer who was pulling into the store lot spotted the clerk flagging him down, and one of the robbers, who later was identified as White, running away. Gunter and Aurie arrived on the scene about 30 minutes later and followed a scent trail to find White nearby “sleeping next to some bushes, gun in hand.”

A Richland County jury in June 2005 convicted White of two counts of armed robbery and one count of kidnapping, according to court and State Law Enforcement Division records. Circuit Judge James Barber sentenced White, who had a prior armed robbery conviction according to SLED records, to life in prison without parole under the state’s “two-strikes” law for violent offenders, DuRant said.

The state Court of Appeals later upheld the conviction.

The approximately 13-year-old Aurie, which the Supreme Court noted descended from a “bloodline of known police and military working dogs,” remains with his former handler, Gunter, after retiring in 2007, Williams said.

“He’s still in good health,” Williams said, adding, “He’s spoiled rotten.”

Elderly Woman Sexually Assaulted

Norwalk (myFOXla.com) - A partially blind woman in her 80s was sexually assaulted on Friday in her Norwalk condominium by a man who broke a window to gain entry.

The woman was assaulted about 5 a.m. in her condo in the 13900 block of Bayside Drive, near Rosecrans Avenue, said Lt. Jenny Ha of the sheriff's Norwalk Station.

He said a "scent dog" helped search for the rapist.

About 4:30 p.m., sheriff's deputies served a search warrant at another condo in the complex, said Lt. John Gannon of the Norwalk station. Deputies were led to the other condo by "evidence found outside the condo" where the sexual assault occurred.

No one was at home when the warrant was served, Gannon said.

Because no one was there, deputies broke in to search the apartment.

The man who committed the assault wore dark clothing and was described as a white man about 20-25 years old with a thin build, Ha said.

The suspect reportedly broke a window to enter the street level of the woman's condo. The woman, who was asleep upstairs, heard a noise and went downstairs to investigate.

The woman was taken to a hospital for examination.

Bart Whitaker Speaks Out in Jailhouse Interview About Plot to Kill Family

Sugar Land, Texas, is an idyllic, upper-class suburb 40 minutes southwest of Houston. But in December 2003, the quiet community was shattered when a family of four was ambushed by an armed intruder as they entered their home.
After Bart Whitaker flees to Mexico, cops find proof linking him to murders.

Today, Sugar Land native Bart Whitaker is on death row in Texas, convicted of capital murder and sentenced to lethal injection for masterminding a plot to murder his parents and brother. And he came very close to getting away with it.

“I wanted them dead,” Whitaker, 29, told ABC News. “It was my idea.”

By all accounts, Bart Whitaker and his younger brother, Kevin, were as close as two brothers could be. Bart and his father shared a passion for distance bicycling, and the family went on vacations to places like Cancun, Mexico. To outsiders, there seemed to be a lot of love in the family.

The evening of Dec. 10, 2003, began with a special announcement at the Whitaker residence. Bart Whitaker told Kevin and his parents, Kent and Tricia Whitaker, that he had finished his final exams at nearby Sam Houston State University and would be graduating. To honor his achievement, his parents presented him with a Rolex watch, and that night the family went to a popular restaurant to celebrate. The family snapped photos over a festive dinner and congratulatory dessert. But secretly, Bart knew that even as he smiled for the camera, an intruder had quietly entered their home and was waiting for their return. If everything went according to his plan, in less than 30 minutes his brother, mother and father would all be dead.

“I don’t really know a better term for how I was feeling, other than I was on auto-pilot,” he said. “I wasn’t even aware of myself.”

“We had a wonderful time before dinner and then packing up and driving over to the restaurant, and all the way home,” Kent Whitaker said.

When the family arrived home, Bart, knowing what awaited his family inside the house, ran down the driveway, saying he needed to take his cell phone out of his car.

“Kevin opened the door, stepped in, was shot,” recalled Kent Whitaker, who survived the attack and still lives in the home. “Tricia … stepped up to the door, was shot. I looked in the door and was shot.”

Bart says he ran into the house and pretended to try and catch the shooter. They wrestled a bit and then Bart was shot in the arm, to make him appear to be a victim.

“It was to distance me from the guilt,” he said. “But also I think on an internal level it was me realizing that there was no way that I could come out of this physically unscathed.”

A neighbor called 911, and responding officers found 19-year-old Kevin Whitaker dead where he fell, a single bullet in his chest. Tricia Whitaker died of a single gunshot wound soon after being airlifted to the hospital. Investigators Question Burglary Theory

Kent Whitaker survived his gunshot to the arm. Also wounded, Bart made a convincing fourth victim.

After clearing the house, police initially thought they were dealing with a burglary gone awry.

“When the dispatcher told me that four people had been shot, I initially thought she was joking with me,” said Sugar Land homicide Sgt. Marshall Slot, the lead investigator on the case. “The crime scene that I was investigating was a burglary gone bad, where the victims were shot by the suspect and the suspect fled the scene.”

Slot scanned the crime scene for any clues that might help him find the killer. He found drawers pulled open as if by a burglar, a gun safe that had been pried open, four spent shell casings and a 9-mm handgun with four bullets missing from its clip.

But Slot’s investigation led him to one dead lead after another. Police tracking dogs picked up a scent in the house and followed it outside, but only to a dead end. Crime scene investigators found no fingerprints. They took the gun back to the crime lab for a closer examination, but a palm print they found wasn’t big enough to identify one particular person. “It seemed like every piece of evidence that we collected, we ran into dead ends,” said crime scene investigator Max Hunter. “Left and right.”

Bart Whitaker had good reason to believe he’d gotten away with murder, but Slot was beginning to doubt that the crime was the result of a burglary gone bad.

For one thing, he said, the dresser drawers were pulled out but not rifled through. There was no evidence of a break-in, and the only thing missing from the house was Bart Whitaker’s cell phone.

“The burglar leaves the gun, leaves all the electronics, but takes a cell phone that we couldn’t find in the scene,” Slot said. “That was a real oddity that stuck out in everybody’s mind.”

As journalists descended on the story, one detail reported in a local paper raised a red flag for Slot: Bart Whitaker had not, in fact, graduated from Sam Houston State University. Actually, he had not even attended the school.

Soon after, a Sugar Land police officer recalled that he’d been called to the Whitaker house once before, two years earlier, regarding an allegation that Bart had threatened his parents’ life.

“It was something that a friend overheard Bart talking to his roommate about, and they concluded that it was a misunderstanding that was based on the friend drinking and that there was nothing to it,” Kent Whitaker said.

“All those little pieces set off bells and whistles in our heads — just thinking, we need to start looking at the son,” Slot said. Sugar Land Murder Suspect Flees to Mexico

When they were released from the hospital, Bart moved back home to be with his father. For the next seven months, he spent every free moment with his father, studying the Bible, while the investigation made little progress.

He said he didn’t come clean to his father, who had pledged to forgive the shooter, because he was “a coward.”

“I didn’t want to cause that pain on me primarily, and on anyone else, secondarily,” he said. “So, I just was weak.”

Then late one night, a man walked into the Sugar Land police station and introduced himself as a former friend of Bart Whitaker’s. His name was Adam Hipp.

Hipp revealed that Bart had hatched a second, previously unknown murder plot that was aborted at the last minute — a plot in which Hipp was recruited to be the shooter.

“One of the plans that he laid out to me that he and Bart had discussed was the exact mirror image of the actual crime,” said Slot.

Once Hipp’s story was verified, there was a new urgency to warn Kent Whitaker about his son. Slot encouraged Kent to move out of the home, but he refused.

“We feel wholeheartedly that he is responsible for this, and that you are living with a murderer,” Slot recalled telling Kent Whitaker. “That you are living with a man who intended to murder you.” In July 2004, Bart Whitaker fled the country and headed to Cerralvo, Mexico, a town about 50 miles south of the border. Using the name “Rudy Rios,” he befriended people and began showing up at church and turning on the charm for a guitarist he met there named SindyLu Salinas.

The two began a relationship, and Salinas said the Rudy Rios she knew was very romantic. She brought her new boyfriend home to meet her parents, and he was an immediate hit. Her father, Homero Salinas, even hired “Rudy” to work at the family’s furniture store.

Back in Sugar Land, the investigation seemed like it had gone cold, until another break in the case — this time, a big one: In August 2005, a man named Steven Champagne, who lived a few doors down from Bart Whitaker, said he wanted to come clean and tell police what he knew about the case. He confessed to assisting in the crime and provided the entire story of what happened on that December 2003 night.

Champagne told investigators that Bart had set up the crime and lured his family to dinner to celebrate his fake graduation from college. As the Whitakers celebrated, Champagne said he watched from a car in the parking lot. Meanwhile, Bart’s roommate, Chris Brashear, hid in Bart’s SUV outside the Whitaker home. Champagne detailed how Brashear entered the house with the key and disabled the alarm with the code Bart had given him. Champagne said he followed the family home and parked on a nearby street and waited.

“[Brashear] said Bart’s brother had walked in first,” Champagne recalled in his confession. “And, when Chris shot him, he said before he shot him he thought he smiled. And then Chris shot his mom and then shot Bart’s dad in the shoulder. And then, he acted like he wrestled around with Bart and shot Bart in the shoulder.” Bart Whitaker: ‘I Am What I Am’

A minute later, he told cops that Brashear joined him in the car and they fled the scene.

“Bart said his family was worth a lot of money,” Champagne said, explaining his motivation. “He said he would give us some money — I mean millions of dollars.”

Having the confession was one thing, but Slot still had no physical evidence to link Bart to the murders. But then Champagne dropped a bombshell. He explained that he and Brashear had thrown a bag full of evidence off of a bridge into a nearby lake.

A police dive team was able to dredge up a soggy duffel bag full of decomposing evidence. Though the bag had spent two years at the bottom of the lake, detectives were able to obtain a DNA profile of Brashear on the mouth of a water bottle. Among the other items in the bag was a badly damaged cell phone. A high-tech data reconstruction process at a lab in the U.K. identified Bart Whitaker as the owner.

“This is the Eureka moment,” Slot said. “This is definitely when we said, ‘We’ve got it.’”

Slot had the physical evidence he needed to link Bart to the murders, and he obtained an arrest warrant. But he didn’t know that his chief suspect was hiding in Mexico until he got a phone call from a man named Rudy Rios, a bus boy at the country club near the Whitakers’ Sugar Land home. Rios told Slot that he had sold his identity to Bart Whitaker and helped him escape.

Whitaker was arrested in Mexico without incident on Sept. 22, 2005.

In March 2007, a jury convicted Bart Whitaker of the capital murder of his mother and his younger brother. He was sentenced to death by lethal injection. The shooter, Brashear, received life in prison without parole. The getaway driver, Champagne, got 15 years for his role.

“How do I reconcile what Bart did to his family?” Slot said. “I’m only left with the conclusion that Bart Whitaker is a sociopath — a true sociopath.”

Bart’s reaction to that assessment: “Well, then I am what I am.”

At his son’s sentencing, Kent Whitaker took the witness stand to plead for his son’s life, but to no avail. The jury sentenced Bart to death. And when that day comes, Kent said that he plans to be there, supporting his son to the end.

“He’s an amazing man,” Bart said. “And, whether or not I’m a person incapable of love, I am a person capable of feeling a very deep respect for that man.”

Incredibly, Kent Whitaker remains steadfast in his ability to forgive. He’s even written a book, “Murder by Family,” in which he tracks the pain, the tears and the faith that carried him through it all. He also details the letters between father and son, including a letter he wrote to Bart that ends with, “My son, I love you. All is forgiven.”

Bank robbery suspect set to appear in court

A Waynesboro man is due in court today on charges that he made a bomb threat at SunTrust Bank last month before robbing a teller of less than $1,000.

Stuart Henry Veney III, 29, of North Charlotte Avenue, faces up to life in prison for one charge of entering a bank while armed to commit larceny. A charge of making a bomb threat carries a maximum 10-year sentence.

Waynesboro police arrested Veney early March 11, just 34 hours after the SunTrust heist, which closed down Broad Street for two hours while Virginia State Police worked to detonate a “disruption shot” inside the bank to disarm what was believed to be a bomb. The suspected device, however, was not explosive.

Police initially responded to the bank before 4 p.m. on March 9 after a man wearing a dreadlocked wig entered, demanded money and indicated he had a bomb. He left a black case and a note and ran out the bank’s back door toward Main Street.

He was carrying less than $1,000, police said. No employees or officers were injured.

In part, police credited tipsters for the quick arrest. Numerous phone calls and some written messages were delivered to police in the case, said Waynesboro police Sgt. Kelly Walker. A Department of Corrections bloodhound also successfully tracked the suspect’s scent from the bank for about a quarter-mile. Also helpful was the recovered robbery note.

Only once in the past 30 years have Waynesboro police failed to solve a bank robbery, Walker said. On that occasion, the case lacked video evidence.

Veney remains in custody at Middle River Regional Jail in Verona. If, during his 2 p.m. hearing today, a judge finds sufficient evidence, Veney’s case will move to a grand jury May 11.

Court records since 1993 show Veney convicted of marijuana possession, forgery, larceny by false pretenses, petty and grand larceny and obstructing justice in jurisdictions including Waynesboro and Augusta, Albemarle and Rockingham counties.

Federal prosecutors to seek death penalty for Wade

by Channel 2 News staff
Thursday, April 30, 2009

ANCHORAGE, Alaska -- Federal prosecutors said in a court filing Thursday that they would seek the death penalty for Joshua Wade, who is accused of murdering his neighbor, nurse Mindy Schloss, in 2007.

Wade, 29, is charged with kidnapping, torturing and murdering Schloss, who lived next door to Wade. He is also charged with one federal count of felony carjacking for stealing Schloss' car.

The FBI also says Wade stole $1,000 from Schloss, using her bank card just days after she went missing.

Alaska is not a death penalty state, but carjacking becomes a federal crime, according to statutes, when the offender does so intending to kill or seriously harm the victim.

Other factors in the prosecutor's decision to seek the death penalty include lack of remorse from Wade, his status as a violent sex offender and low hopes of any rehabilitation.

Prosecutors also plan to bring up another murder case in court.

Court documents show prosecutors plan to prove Wade raped and killed another woman, Della Brown, in September of 2000.

A jury acquitted Wade of Brown's murder, but did find him guilty of tampering with evidence.

Schloss disappeared in August of 2007. Police found her body the next month with a gunshot wound to the head near Wasilla on a road off of Knik Goose Bay Road.

Wade was arrested after a standoff in east Anchorage in September of 2007.

If convicted and sentenced to death, Wade would be the first Alaska criminal executed since 1950.

Wade's trial is scheduled to begin this fall.