When charged with a narcotics offense, the chain of evidence often includes an alert of a drug dog. A significant proportion of traffic stops that balloon into drug busts involve a canine sniff of the vehicle. The sniff justifies a further search, uncovering drugs, paraphernalia, and/or large amounts of cash. The defendant may attack the alert of the drug dog, though this will seldom work unless there has been a very long delay before the dog was produced, or perhaps if the only thing uncovered in the subsequent search is a large amount of cash. In moving to suppress the drug dog evidence or the fruits of that evidence, the accused may request funds from the court to retain his own expert when he cannot afford one. Such a request was made by Willard Wayne Howard in a case arising in Tennessee.
The facts of U.S. v. Howard are as follows. On December 12, 2005, officers of the Bradley County, Tennessee, Sheriff’s Department pulled over Antonio Benitez, who was driving a Volkswagen Passat. Five kilograms of cocaine were discovered in a secret compartment in the car, but this search was not at issue in the case. Benitez was taken to the sheriff’s office where one of the cell phones that had been found in the car rang and was answered by a deputy. The deputy told the caller that he worked for a towing company and that the Passat had been wrecked. He gave the caller the cell phone number of another deputy, but said that the number was that of the towing company. Amy Cornwell, Benitez’s girlfriend, called that number and said that she and her stepfather would drive to Tennessee to pick up the Passat. Two days later she arrived with Willard Howard in a Chevrolet Suburban. She went to the wrecking company where a deputy named Renner was impersonating an employee. Renner said that he had found a secret compartment in the Passat but that he would not tell the police if she gave him $500. She said she did not know what he was talking about. Renner arrested her anyway, Other officers arrested Howard and led a drug detection dog named Titan around the Suburban. Titan alerted at the rear door of the car. A search revealed nearly $100,000 in cash.
A magistrate determined that the arrest of defendant was illegal, and denied Howard’s motion for an appointment of an expert. The federal district court for the Eastern District of Tennessee held that the evidence from the search of the Suburban could still be admissible if Titan’s alert was an independent source for the search of the vehicle, i.e., was not dependent on the illegal arrest. Based on this conclusion, Howard moved for reconsideration of the denial of the motion for appointment of an expert. The expert Howard wanted was Robert Gonzalez, who had for five years been the Branch Manager of the 37th Security Forces on Lackland Air Force Base in Texas. In this capacity, Gonzalez managed all military working dogs on the base. He was also selected by the Air Force Headquarters Security Police to be the Team Leader, trainer, and coordinator of the U.S. Customs Canine Drug Interdiction Force for Puerto Rico. Gonzalez was clearly qualified, but the issue was whether the court should pay for him since Howard apparently could not. (It is not explained whose cash the $100,000 was or why Howard was in need of funds.)
Howard argued that an expert was needed to determine if the National Narcotic Detector Dog Association (NNDDA) had an acceptable certification process, to determine the dog’s performance and training records, and to determine if Titan had reliable alerts. Titan was certified by the NNDDA. The court then considered what use Gonzalez could be to Howard in this regard and said that there was no evidence that Gonzalez had experience with this particular organization, though he had considerable experience with detection dogs. Implicitly the district court signaled that it saw no point in a dispute between a large national organization and an expert with a different background. Nor could Gonzalez describe the alerts of Titan, a dog with which he had never worked.
The magistrate subsequently determined that the independent source doctrine applied to admit the search of the Suburban. U.S. v. Howard, 448 F.Supp. 889 (ED TN 2006); magistrate’s report and recommendation (2007). The NNDDA website provides certification standards for police dogs, narcotics detection dogs, explosive detection dogs, and cadaver dogs. As of 2006, the NNDDA had between 2,500 and 3,000 handler members.
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