While writing my previous article, Passing the smell test, about the lack of accountability surrounding drug sniffing dogs, I was astonished to find out that many of these warrant-less searches reaped evidence less than half of the time. I know that much of my previous article was based on cases out of the Chicago area. I wanted to see how my local departments fared.
I have pulled public records on a few occasions in the past. I’ve always done so verbally, and given my name, though the records were always rather benign. I deal with legal matters for work on a regular basis, though I am not an attorney. A hobby of mine is studying law. Specifically, statutes that deal with my day to day life, and had reviewed open records laws several times. One statute explicitly states it is unlawful to refuse a record request because the requester refuses to give his name. I thought I’d test that out.
On February 23, 2012 I submitted requests to Deputy Chief John Olsen of the Janesville Police Department, who is the custodian of records, and to Sergeant Wayne Hansen of Rock County Sheriff’s Department, who is according to the RCSD website, in charge of the K9 unit.
By March 8, 2012 I had had a few back and fourths with both departments. They both insinuated I was getting my eyes nowhere near those records without all of my information on their respective forms. Both forms appear to be something drafted quickly by an administrative assistant on Microsoft Word. In other words, these departments were attempting to, “Promulgate (make up) an administrative rule” which is contradictory to law.
What is a “Substantiated Search?
According to the JPD, a substantiation can be made in three different ways. The first way is with physical evidence. This would be, in most cases, a bag of weed in the vehicle. The cop would take the bag of weed and forward it to a prosecutor who would, in turn, present it in court. This is obviously the easiest way, and in my opinion the only reasonable way, to determine if a dog sniff was correct. Physical evidence substantiations are by far the rarest.
Residue is the second possible method. According to JPD, if an officer is able to collect minute amounts of contraband, they will put it in a tester and see if it turns colors. I’m told this “Residue” is not enough to bring a possession charge. Regardless of whether the tester turns colors the officer disposes of the tester but writes it down as a good warrant-less search. I would love to know what percentage this method represents, but with the difficulty I’ve had from both of these departments, I simply don’t have time to obtain those numbers.
The third method, which is the most common way for officers to “substantiate” a warrant-less drug search of a car is “Admission.” I understand this to be when a warrant less search subject admits to having contraband in the car at some time in the past. I don’t understand why after a suspect is removed from a vehicle by threat of violence, he would spontaneously say, “I carried a pot cigarette in the car back in 2007.” I imagine the conversation going something like; “Tell ya what, my dog hit…I’ll let you go for the failure to signal ticket if you “Admit” there used to be drugs in the car.”
Rock County Sheriff’s Office
Wayne Hansen from the Sheriffs Office replied first. His response email addressed me as “John”. Why put my name in quotations? Did he not believe my name is John (which it is)? He told me to fill out a form which required my full name and address. It also asks for my date of birth. Why does a police department need my date of birth to fill a records request? I responded by telling him I didn’t need to fill this out and cited a few statutes. That’s where Gary Groelle got involved.
Gary is the “Custodian of Records” for RCSO. Of course he’ll know the law, I assumed. Unfortunately I got the same run around. He wants nearly enough of my personal information to open a credit line in my name.
Bill Lueders is the President of the Wisconsin Freedom of Information Council (FOIC.) I contacted him March 24 after I had run out of options with Gary Groelle of RCSO. Via phone, I explained my plight and he agreed to call Gary. At this point, JPD was at least communicating with me and I felt they were going to adhere to law. Bill explained that rapport with a records custodian can be helpful but acknowledged that by the letter of the law, I was immediately entitled to the records as I had requested.
I’ll be honest, I knew FOIC was serious about what they do. According to their website, wisfoic.org, they’ve been supporting transparency by government for more than 30 years. What I really wanted was for him to tell me he gave a serious ass-chewing to this government agency that takes nearly 50% of my property taxes but can’t spend 45 minutes familiarizing itself with Chapter 19 (Open record laws) of the State Statutes.
That didn’t happen. He contacted me a day or 2 later to tell me Gary Groelle would comply with law. March 28, a month and three days after my original request, I got the following email.
I’ve spoken with Bill Leaders reference your open records request. I am prepared to mail the report to you immediately, w/o payment first….The cost is .35 per page, there is just this one page.
Well thanks Gary. You’re not going to charge a 35 cent fee, which is considered excessive, in advance, for a record that’s 4 weeks late. Well done sir.
According to FOIC a fee in excess of actual cost, or 25 cents, is excessive and suspicious. I informed him of this and he sent a document via email the following day. But of course Gary didn’t send the document I requested.
I continued begging, and April 3, 2012, he finally filled my request.
Janesville Police Department
Despite an assertion from John Olsen of JPD that his agency was devoted to transparency, he idled and loafed. A simple request such as this taking more than 10 business days in WI is considered questionable at best. 45 days for this nominal request, in my opinion, is derelict.
I spent 6 weeks sending legal demands for the records from Custodian of JPD Records Deputy Chief John Olsen with no results. Eventually I contacted a local City Councilperson Tom McDonald (Actually I sent a mass email to the entire city council and the Chief of JPD.) He is also a local attorney and promptly responded to my plea for help. Not sure why he could do in 2 days what I had attempted for six weeks but I finally got my records.
After weeks of begging for records open to the public, my request was finally filled by JPD. Deputy Chief John Olsen informed me that The Janesville Police K9 unit recovers evidence from warrant-less searches initiated by dogs 37% of the time. He informed me that during the most recent 89 warrant-less searches, physical evidence was recovered only 33 times.
I had asked the Sheriff’s Department for 12 months worth of data. I believe they gave me info from only March 2012. I was happy to get at least something. I was given data which included 18 warrant less searches. How many drug arrests came out of that? Just 3. According to the records, 8.5 times out of ten times no contraband was discovered. Or in other words, his dog is 16% accurate.
This summer The US Supreme Court will decide in “Harris v. Florida” if police need to prove their dogs’ accuracy. In “Jardines v. Florida” the court will decide if police can walk a dog up to our front doors to establish probable cause for a search. I haven’t smoke pot in 20 years and have never done any other drugs.
I would expect that if some random man rifles through my property without a warrant he’ll be more accurate than a flip of a coin. Unfortunately, that’s not the situation here in Rock County WI.