Fort Bend County Loses the "Scent Lineup" Issue Again

Last year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a "scent lineup" to match a suspect's body scent to the scent of certain evidence from the crime scene.  See the post HERE.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler's methodology that the court noted were:

• He carries around his "blind" non-supect scent samples (called foil samples) in ziplock bags;
• His foil samples are old samples, while the scent sample of the suspect is fresh;
• He does not do negative runs where the sample of the suspect is excluded;
• He uses multiple dogs during each test rather than allowing the dogs to work alone; and
• He is mostly self-taught and his methodology is something he created. 

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler's "scent lineup" evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

Something Doesn't Smell Right: CCA Reverses Capital Murder Conviction Due to Unreliable Dog-Scent Lineup Evidence

In August 2004, Murray Wayne Burr was found murdered in his home.  One of the those suspected of committing the murder was Richard Lynn Winfrey.  Winfrey remained a suspect even when the police investigation concluded that blood, hair, and DNA samples obtained at the crime scene excluded him as a match.  Without any evidence linking Winfrey to the murder scene, the Texas Rangers called upon a dog handler with the Fort Bend County Sheriff's Office.  The dog handler then conducted a "scent lineup" using three bloodhounds.

This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including [Winfrey].  The dogs were "pre-scented" on the scent samples obtained from the victim's clothing.  The dogs then walked a line of paint cans containing the sent samples of the six white males.  All three dogs alerted on the can containing [Winfrey's] scent sample. 

When this scent identification was later admitted at Winfrey's capital murder trial, he was convicted and sentenced to 75 years in prison.

After the 11th Court of Appeals affirmed the conviction and sentence, the Texas Court of Criminal Appeals granted to review to address whether it was proper for the Court of Appeals to rely upon a dog scent lineup in determining that the evidence was legally and factually sufficient.

"Identifying someone's scent at a crime scene is not an indication of complicity," the CCA explained.  The Court also noted, as originally stated by Supreme Court Justice Souter, that "[t]he infallible dog, however, is a creation of legal fiction."  The CCA then went on to identify courts around the country that have held that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.  Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.  Like the Supreme Court of Washington, we believe that [t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.

Finding it "undeniable" that the jury and the Court of Appeals found the dog scent lineup evidence compelling, and further finding that there was no corroborating evidence placing Winfrey at the scene of the crime, the CCA reversed the lower court of entered a judgment of acquittal.

Takeaway:  "[W]hile [dog scent lineup] evidence may raise a strong suspicion of [a person's] guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.