Conviction Overturned for Excessive Redaction of Training Records and Performance Reviews: Vehicle Sniffs in a Post-Harris-Jardines World

In an opinion issued early this month, Ninth Circuit Judge Diarmuid F. O’Scannlain said that the case required the court “to explore emerging parameters for the constitutional use of drug-detection dogs.”  What is emerging is how courts will be interpreting Harris and Jardines, the two Supreme Court cases concerning narcotics-detection dogs decided last spring.   The Ninth Circuit clearly wants law enforcement to understand that Harris does not mean that courts will be rubber stamping drug dog reliability by accepting mere assertions of certification and adequate training. 

Stop at Border Patrol Checkpoint

On February 28, 2010, Jonathan Thomas approached a Customs and Border Patrol checkpoint in southern Arizona.  (As a winter resident of Arizona, I can attest that such checkpoints are a way of life whenever one drives anywhere within 50 miles of the Mexican border.)  Border Patrol Agent Christopher LeBlanc was on duty with his drug-detection dog, Beny-A, who, in addition to drugs, was trained to detect concealed humans.  LeBlanc and Beny-A were about 15 feet from the inspection area when Thomas’s truck passed them and the dog began to demonstrate what Thomas referred to as “alert behavior.”  This meant that the “dog’s tail and ears went up, his posture and breathing pattern changed, and he started ‘air-scenting.’”

Thomas was directed to a secondary inspection point where he and his three children exited the truck.  LeBlanc and Beny-A began a pass of the truck.  According to the opinion:

“The dog was ‘in odor’ throughout, meaning he was very animated and excited. Near the gas tank on the passenger side the dog exhibited more alert behavior. Beny–A is trained to perform what is known in the trade as an 'indication' when he discovers contraband: he ‘rock[s] back into a sit.’

“When the team came upon the toolbox, LeBlanc cast his hand low-to-high. In response, Beny–A jumped up and placed his paws on the vehicle and pressed his nose against Thomas's toolbox. LeBlanc testified that the dog then tried to sit, but that he did not allow him to complete that trained indication. Next, LeBlanc returned Beny–A to his kennel, obtained Thomas's keys, and searched the locked toolbox. Inside was a blanket and, underneath, bundles of marijuana weighing about 150 pounds. Thomas was arrested, advised of his Miranda rights, and transported to the Tucson Border Patrol station.”

We have discussed the risks associated with using hand motions to bring a dog’s attention to objects that might be sniffed, including pictures of how this can cue a dog.  See How to Prevent Cueing Arguments from Getting Canine Evidence Thrown Out in Court, Deputy and Court Officer, 3(2), 36-38 (2011).  Probable cause would be more clearly established if a dog is allowed to complete the alert. There can be reasons for stopping a dog from completing an indication, such as a physical barrier, an ailment in a dog’s leg, etc., but the defense should always carefully examine such claims.

Thomas was indicted for possession of marijuana with intent to distribute (21 U.S.C. 841(a)(1), (b)(1)(C)).  A superseding indictment 14 months later added a charge of conspiracy to possess marijuana with intent to distribute (21 U.S.C. 846).  Thomas moved to have the indictment dismissed on the ground that the Speedy Trial Act 70-day rule (18 U.S.C. 3161(c)(1)) had been violated. 

Thomas also argued for suppression based on the search of the toolbox.  He claimed that this search violated the Fourth Amendment because the drug dog’s failure to indicate meant probable cause had not been established.  He also objected to receiving heavily redacted training and performance evaluation records concerning Beny-A and his handler.  The district court judge ruled that the government’s limited disclosures satisfied its discovery obligations and denied the motion to suppress.  After a two-day trial, Thomas was found guilty of conspiracy and the court sentenced him to 30 months of incarceration. 

Appeal to the Ninth Circuit

The circuit court rejected the Speedy Trial Act argument, then proceeded to Thomas’s Fourth Amendment argument.  The court said that this involved three separate assertions:

1. Agents invaded a constitutionally protected area by directing the drug dog to jump “up and put his paws and nose on the toolbox in the truck bed, and stay … like that, refusing to move.” 
2. The government failed to disclose adequate evidence of the proficiency of Beny-A and his handler to justify the search of the toolbox.
3. Beny-A’s failure to indicate by sitting meant that the agents lacked probable cause for the search.

The government responded that Beny-A’s contact with the truck was not a Fourth Amendment search.  The second argument, however, proved key. 

Truck Bed and Toolbox as Areas Constitutionally Protected

The argument concerning constitutionally protected areas is based on U.S. v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 191 (2012), and Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 945 (2013).  Jones held that installation of a GPS-tracking device to the exterior of a car was a search subject to the Fourth Amendment’s requirement of reasonableness. The Ninth Circuit described Jardines as having “held that the use of ‘a trained police dog to explore the area around the home in hopes of discovering incriminating evidence’ implicated the Jones principle.”  The court was unwilling to issue a specific rule concerning the significance of Jardines to a vehicle situation, saying only:

“[I]t is conceivable that by directing the drug dog to touch the truck and toolbox in order to gather sensory information about what was inside, the border patrol agent committed an unconstitutional trespass or physical intrusion.”

The court noted that not every constitutional violation leads to the application of an exclusionary rule.  Police, for instance, may reasonably rely on binding precedent.  Davis v. U.S., 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).  The Supreme Court, in Illinois v. Caballes, 543 U.S. 405, had held that “the use of a well-trained narcotics-detection dog” on a motor vehicle did “not rise to the level of a constitutionally cognizable infringement.”  Indianapolis v. Edmond, 531 U.S. 121, had said that an exterior sniff of an automobile is permissible in part because it “does not require entry into the car.”  The Ninth Circuit also referred to Justice O’Connor’s oft-repeated description, in U.S. v. Place, 462 U.S. 696, of the dog sniff as sui generis, and her conclusion that using such a dog to sniff luggage was not “a search requiring probable cause.” 

Because of these prior cases on which the border patrol agents could have relied in performing the sniff and opening of the toolbox, they “acted in accord with then-binding precedent” and, therefore, “the marijuana seized is not subject to exclusion on the basis of an unconstitutional trespass or physical intrusion.”  In effect, the Ninth Circuit left the question of whether such a sniff might involve a constitutionally protected area for a case in which the stop occurred after Jardines was handed down.

Reliability of Drug Dog

Thomas also challenged Beny-A’s reliability, arguing that it was improper for the government to supply him with only heavily redacted records concerning the training and experience in narcotics detection of the dog and the handler.  The Ninth Circuit summarized the records that were produced:

“Such records show that LeBlanc and Beny–A had attended yearly certification programs from the Border Patrol and were up-to-date at the time of the search. Biweekly logs, called green sheets, were also produced. The team's performance during eight-hour-controlled evaluations was scored on a scale of one to six—the higher the score, the worse the performance. At least one record analyzed at the suppression hearing revealed marginal performance in ‘search skills.’ The team received a 3.50. Had it been one-tenth of a point higher it would have been ‘a failing score.’ The redactions obscure comments on nearly every page of the records. As to what is beneath the blacked-out paragraphs, the defendant, district judge, this court, and even the Border Patrol's custodian of records are entirely in the dark.”

The court noted that it had dealt with discovery of police canine records ten years earlier.  In U.S. v. Cedano-Arellano, 332 F.3d 568 (9^th Cir. 2003), it had held, in response to a discovery request in a motion to suppress, that the government had to supply the defendant with the handler’s log, training records and score sheets, certification records, and training standards and manuals pertaining to the dog.  This, according to the 2003 decision, was important for the defendant to prepare “effective cross-examination of the dog’s handler.”  Further, under U.S. v. Cortez-Rocha, 394 F.3d 1115 (9^th Cir. 2005), these disclosures are mandatory if the government seeks to rely on a dog alert as the evidentiary basis for a search.

The Ninth Circuit saw the Supreme Court’s decision in Harris, 133 S.Ct. 1050 (2013), as echoing its own perspective in that Justice Kagan stated that a defendant must be afforded the opportunity to challenge “evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witness.”  The court quoted Justice Kagan’s examples of how a defendant could attack a dog’s reliability:

“The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings.”

The Ninth Circuit therefore saw these remarks as non-exclusive examples.  Even if there was some sensitivity that justified redacting the records, the Ninth Circuit noted that this could have been dealt with by an in-camera review.  There may in fact be good reasons for some redaction of records, though mostly field records, such as the need to protect the privacy of individuals involved in an investigation or to keep specific deployment protocols confidential, but these reasons can be described and discussed in chambers.

The government also argued that even if there was a violation of Thomas’s rights, the error was harmless. Because no court had access to the complete records, the Ninth Circuit concluded that it could not be said that the records would not have changed the ultimate determination that the agents had probable cause to support the search.  Therefore, the harmless-error argument failed. 

Lack of Formal Alert

Thomas also argued that because Beny-A “never completed his trained indication—the sitting discussed earlier—his behavior was an insufficient basis for searching the toolbox.”  The court accepted the analysis of the Tenth Circuit in U.S. v. Parada, 577 F.3d 1275 (10^th Cir. 2009), which had held that a dog did not have “to give a final indication before probable cause is established.”  In that case “rapid deep breathing, body stiffening, and upbreaking from the search pattern” were sufficient.   The Ninth Circuit stated that “[e]vidence from a trained and reliable handler about alert behavior he recognized in his dog can be the basis for probable cause.” 

Conclusion

The Ninth Circuit reversed, holding that “the government’s failure to turn over a full complement of dog-history discovery was an error that was not harmless….”  On remand, the government would have the chance to establish the dog’s reliability by producing an adequate record.  If the government could establish consent to the search, that would allow reinstating conviction.  “If not, a new trial without the evidence of the marijuana will be appropriate.”  We all know that is not going to happen, so the government’s best shot appears to be to turn over all the dog’s records and ask for an in-camera review if some of the material really is sensitive. 

The case is an important extension of Harris, as it says that the government cannot turn over redacted training records in discovery and expect the defense and a trial judge to accept without argument that what it is given must be taken as adequate.  

There have already been at least a dozen cases interpreting various issues left open in Harris and Jardines.  We will soon be examining the impact of these cases on police and prosecutorial practice in a law review article we are preparing on what Judge O’Scannlain aptly calls the “emerging parameters for the constitutional use of drug-detection dogs.”   

U.S. v. Thomas, No. 11-10451, 2013 WL 4017239 (9^th Cir. 2013).

This blog was written by John Ensminger and L.E. Papet.