by Bill Lewis II
If a tree falls in the forest and no one is around to hear it, does it make a sound? No, according to the research, because the definition of sound is “something that you hear.” If no one’s there to hear the tree fall, then the tree doesn’t make a sound. This answer is valid as long as no details are observed technically.
If a K9 handler gives a verbal announcement providing the suspect an opportunity to surrender prior to a K9 deployment and the suspect does not hear the announcement, has an announcement been legally made? Yes, but we must be prepared to prove that an announcement was made in the event we later must defend our actions in court.
Unfortunately, we have jurors who do not always believe police officers so we must make it a practice to seek independent confirmation of K9 announcements whenever possible and require it as a policy. As a K9 supervisor, one of the things I wanted to know about following a K9 apprehension was evidence of civilian witness statements confirming that an announcement was given before a deployment to include the suspect if he was inclined to provide that information. These announcements are powerful defenses to prove we provided an opportunity for the suspect to voluntarily change the course of his evasive actions and non-compliance so that he could avoid contact with our police dog.
We have case law that says we must give warnings to suspects prior to deploying police dogs (Kuha v. City of Minnetonka) and other less lethal tools and those warnings should include the consequences of non-compliance, e.g., injury, pain and/or a dog bite. There are some “tactical consideration” and time sensitive exceptions.
We do not have case law that specifically states suspects must actually hear the warnings or announcements. Common sense dictates that the purpose of giving an announcement is to provide an opportunity for surrender and if you believe the suspect can’t hear the warning, what purpose does it then serve? The announcement serves as a legal notice, similar to “knock and notice” prior to serving a warrant. Whenever possible, and based on the size of the search area and tactical considerations, additional K9 announcements should be given as a search continues.
I served as an expert witness [in 2011] on behalf of an agency being sued in Federal Court involving a K9 deployment where the suspect was bit. The suspect (who later became the Plaintiff) claimed he was not the suspect that officers saw running from the car holding a handgun and he testified he did not hear any K9 announcements before the dog was deployed. After the deployment, the K9 handler contacted three witnesses who said, and it was documented in his report, that they heard the announcements in English and Spanish. The three witnesses later recanted in court and testified they did not hear the announcements.
Confirmation of the announcements was provided through testimony of the handler and assisting officers. However, our independent confirmation was presented via one of the suspects who was initially detained from the same car the Plaintiff fled and later testified in his deposition that he could hear the announcements. And, a recorded 9-1-1 call regarding a potential location of the suspect before the deployment also confirmed that announcements were being made in the neighborhood.
Fortunately, we prevailed in court and won this case. There were other circumstances and lessons learned from this incident, but I am going to focus on and address those related to K9 announcements. This case served as notice that the handler, supervisors and officers on scene must be more diligent in their efforts to secure evidence that “proves” that announcements are being given prior to a deployment and then properly document that evidence in related reports.
Lesson # 1 – Announcements
This agency had a policy which read “Prior to deploying a canine team, an announcement shall be made.” It also addressed the exceptions. More importantly, particularly in consideration of going to court and our liability, it specified the purpose of giving an announcement which allows a suspect or other persons within the containment area the opportunity to surrender or make their presence known to officers on scene to avoid an encounter with the police dog.
This agency also had the ability to give pre-recorded announcements over the patrol K9 car public address (PA) systems so a handler (or other officer) could play the announcement as he drove within the containment area or on the perimeter prior to the deployment. In my opinion, this agency goes above and beyond the normal announcement requirements that most agencies require and they continue to do so.
I recommend that your K9 announcement be written in your policy or operational manual. And, if you sometimes use officers other than the handler to make the announcements, the handler should retain and be able to provide a (laminated) copy of the announcement at the scene and later in court if necessary.
Lesson #2 – Announcement Confirmation
This agency had a policy which read “Containment personnel shall confirm hearing the canine announcements prior to initiating a search.” Although the policy does not specify if everyone on the containment shall individually confirm, it could be implied and raised as an issue. However, it would be important and recommended per this policy to document in a report and record via police radio (if possible) the personnel who confirm and their respective locations in key positions along the containment area.
There are some agencies that have a practice of allowing the person giving the announcement to key the police radio on the frequency which is being recorded as they give the K9 announcement and then confirm via radio that containment or perimeter personnel have heard the announcement. The confirmations should also be recorded in a report by other than the handler.
There are some handlers that activate their personal recorders prior to making their K9 announcements and record their announcements. When doing so, these actions should be documented in a report and recordings placed into evidence.
Lesson # 3 – Witness Interviews
As I mentioned previously, three witnesses were contacted by the handler in our case regarding the announcements and they later recanted in court. I’m sure you’ve experienced or heard about witnesses changing their stories later in criminal or civil court. The handler should not ideally be the one canvassing the neighborhood and soliciting witness statements because it could be considered self-serving and prejudicial, particularly if statements are not recorded and it is proven or alleged later that the deployment was not justified or out of policy. However, if the handler (or assisting officer) is directed to conduct interviews, those interviews should be recorded and placed into evidence and detailed in a report.
At the scene following a deployment, handlers, officers and supervisors tend to be more focused on the suspect, medical attention and the crime that caused the dog to be deployed. When considering the potential for civil liability, agencies should prepare their criminal case to prepare for a potential civil case. Handlers and field supervisors need to think “civil liability” and get the evidence that may assist their defense later, like independent confirmation of announcements and recorded witness statements.
Most suspects will claim they did not hear the K9 announcement and it is possible based on the environment and conditions that exist at the time the announcement is given. Some of these suspects experience the same auditory exclusion that officers experience during highly stressful situations. Other suspects (who later become Plaintiffs) are simply untruthful, street-wise and refuse to admit they heard the announcement.
Author’s Update 2017; Whenever possible, handlers should try to establish verbal contact with a suspect either before, during or after a deployment. I like incorporating something like “make yourself known” as part of a K9 announcement to attempt contact prior to a deployment a with a suspect (or innocent person within the search area) and provide opportunity for peaceful surrender. By doing so, especially if a suspect responds verbally, you establish that your announcement is being heard. If the suspect responds verbally during or after a dog bite, and you are giving verbal directions for an arrest, you are establishing that the suspect can hear you – and your announcement. If a suspect responds verbally, I also like to have a handler ask “Do you understand?” after directions are given to eliminate any claim by the suspect that he/she did not understand what was being told to them.
We (as handlers) must prepare for and always believe we may be facing a jury in the future who will want uncontroverted evidence that we provided “the Plaintiff” with an opportunity to surrender by giving an announcement that was clear, loud, and audible before our police dog was deployed.
Bill Lewis II © February 2011
This article was first published in “K-9 Cop Magazine” (March/April 2011).