Unconfirmed Accelerant Detecting Canine Alerts

NFPA | IAAI/CADA | Law Review Articles | Research Articles | Cases

Fire investigator and accelerant-detecting canine guidelines caution against relying on the subjective behavior of an accelerant-detecting canine, especially when laboratory samples of the item in question are returned as negative or inconclusive for ignitable liquid. Yet many courts have accepted the testimony of accelerant detecting canine handlers even when fire debris samples taken from the fire scene are negative.

NFPA

NFPA 921 (2014), 17.5.4.7.1, at 178
In order for the presence or absence of an ignitable liquid to be scientifically confirmed in a sample, that sample should be analyzed by a laboratory in accordance with 17.5.3. Any canine alert not confirmed by laboratory analysis should not be considered validated.

NFPA 921 (2014), 17.5.4.7.2, at 178
Research has shown that canines have responded or have been alerted to pyrolysis products that are not produced by an ignitable liquid and have not always responded when an ignitable liquid accelerant was known to be present.”

NFPA 921 (2014), 17.5.4.7.3, at 178
The canine olfactory system is believed capable of detecting gasoline at concentrations below those normally cited for laboratory methods. The detection limit, however, is not the sole criterion or even the most important criterion for any forensic technique. Specificity, the ability to distinguish between ignitable liquids and background materials, is even more important than sensitivity for detection of any ignitable liquid residues. Unlike explosive- or drug-detecting dogs, these canines are trained to detect substances that are common to our everyday environment. The techniques exist today for forensic laboratories to detect submicroliter quantities of ignitable liquids, but because these substances are intrinsic to our mechanized world, merely detecting such quantities is of limited evidential value.

These sections were first published in NFPA 921 through an emergency amendment in 1998.

NFPA 921 (2014) 6.3.7.8.2 at 70
It should be noted that many plastic materials release hydrocarbon fumes when they pyrolyze or burn. These fumes may have an odor similar to that of petroleum products and can be detected by combustible gas indicators when no ignitable liquid accelerant has been used. A “positive” reading should prompt further investigation and the collection of samples for more detailed chemical analysis.

IAAI/CADA

In 1994, the International Association of Arson Investigators (IAAI) released its position paper on the value of unconfirmed ADC alerts.  While recognizing the efficiency of using a well-trained ADC to identify areas where the presence of an ignitable liquid is suspected, the position paper makes it clear that an unconfirmed ADC alert lacks the reliability needed to be of any value in a courtroom.

International Association of Arson Investigators (IAAI) Forensic Science Committee. IAAI Forensic Science Committee Position on the Use of Accelerant Detection Canines. The Fire and Arson Investigator. 1994;45:22–23.

IAAI emergency amendment language is published in the 1998 edition of NFPA 921. Now found in NFPA 921, 2014 edition, at sections 17.5.4.7.1, 17.5.4.7.2, and 17.5.4.7.3, at 178.

In a 2012 position statement, the Canine Accelerant Detection Association (CADA) states:

“The Canine Accelerant Detection Association (CADA) does not support, nor do we recommend, Accelerant Detection Canine Handlers testifying in criminal or civil court to the presence of an ignitable liquid without having received confirmation through laboratory analysis,” and, “…our position is that no Prosecutor, Attorney or ADC Handler should ever testify or encourage testimony that an ignitable liquid is present without confirmation through laboratory analysis.”

CADA’s position on “Testifying to Negative Samples,” available at: http://cadafiredogs.com/

Law Review Articles

Bruce L. Ottley, Beyond the Crime Laboratory: The Admissibility of Unconfirmed Forensic Evidence in Arson Cases, 36 New Eng. J. on Crime & Civ. Confinement 263 (2010) (stating, “Several courts have admitted the testimony (usually offered in the form of expert testimony), or indicated that they would admit it, if the proper foundation were established”).

“Shifted Science” Revisited: Percolation Delays and the Persistence of Wrongful Convictions Based on Outdated Science, C. Plummer and I. Syed, Cleveland State Law Review, Vol. 64 (2016).

Research Articles

M. Kurz et al., Evaluation of Canines for Accelerant Detection at Fire Scenes, 39 J. Forensic Sci. 1528, 1528 (1994)

R. Tindall, K. Lothridge, An Evaluation of 42 Accelerant Detection Canine Teams, 40 J. Forensic Sci. 561, 561 (1995)

M. Kurz et al., Effect of Background Interference on Accelerant Detection Canines, 41 J. Forensic Sci. 868, 868 (1996)

S. Katz et al., Unconfirmed Canine Accelerant Detection: A Reliability Issue in Court, J. Forensic Sci 329-333 (1998)

L. Lit et al., Handler beliefs affect scent detection dog outcomes, Animal Cognition, 14(3), 387-394 (2011)

Cases

State v. Sharp, 395 N.J. Super. 175 (Law Div. 2006), the court relied on NFPA 921 and other scholarly literature in accordance with the NFPA guide, finding that evidence of an ADC’s alert to certain locations at a fire scene that was uncorroborated by laboratory testimony must be barred.  Id. at 186.

In United States v. Hebshie, 754 F. Supp. 2d 89 (D. Mass. 2010), the United States District Court vacated a conviction of arson, in party because of the scientific literature regarding false ADC detections.  Specifically, the court noted that the failure of defense counsel to object to ADC evidence uncorroborated by a laboratory analysis under Daubert severely prejudiced the defendant’s case.

Commonwealth of Kentucky v. Robert Yell, 242 S.W.3d 331 (Ky. 2007) and the recent (12/28/2016) opinion in that case (Commonwealth of Kentucky v. Robert Yell, Logan Circuit Court, Case Number 04-CR-00232), as well as the Innocence Network Amicus Curiae brief submitted in that case, copies in the dropbox folder.

And see generally

United States v. Hildenbrandt, 207 F. App’x 50 (2d. Cir. 2006);

Goldstein v. Allstate Ins. Co., No. 95 Civ. 8783, 1998 U.S. Dist. LEXIS 18288 (S.D.N.Y. 1998);

Farm Bureau Mut. Ins. Co. V. Foote, 14 S.W.3d 512 (Ark. 2000);

Reisch v. State, 1993 Del. LEXIS 229 (June 4, 1993);

Carr v. State, 482 S.E.2d 314, 318 (Ga. 1997);

People v. Acri, 214 Ill. Dec. 761, 662 N.E.2d 115, 117 (App. Ct. 1996);

State ex rel. E. K., 766 So. 2d 661 (La. Ct. App. 2000);

Commonwealth v. Crouse, 855 N.E.2d 391(Mass. 2006);

People v. Jackson, No. 272776, 2008 Mich. App. LEXIS 958 (Ct. App. May 13, 2008);

Maier v. Allstate Ins. Co<., 838 N.Y.S.2d 715 (App. Div. 2007);

People v. Dix, 662 N.Y.S.2d 879 (App. Div. 1997);

State v. Abner, 2006-Ohio-4510 (Ct. App.);

State v. Webber, 716 A.2d 738 (R.I. 1998);

Fitts v. State, 982 S.W.2d 175 (Tex. App. 1998);

State v. Schoulz, 58 P.3d 879 (Utah Ct. App. 2002);