Wednesday, August 28, 2013

Brady Alert - Sniffer Dogs

A NEW TOOL for DISCOVERY:      In Florida v. Harris, 133 S.Ct. 1050, 1057 (2013) the U.S. Supreme Court recently held that trained and certified sniffer dogs can provide probable cause to search. The Court also stated that a court’s presumption that a dog's alert provides probable cause is “subject to any conflicting evidence offered.” Id. Kentucky’s 115-year-old decision in Pedigo v. Com., 103 Ky. 41, 44 S.W. 143 (Ky. 1898) also requires a proper foundation for introduction of sniffer dog evidence at trial to include 1) the dog's scent tracking record; 2) the qualifications of its handler, and 3) the dog’s training and history. Debruler v. Com., 231 S.W.3d 752, 756 (Ky., 2007).

Operative language from Florida v. Harris includes the following:

A defendant [may] cross-examin[e] the testifying officer or [introduce] his own fact or expert witnesses. 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. [and may present] evidence of the dog's (or handler's) history in the field… (“[T]he defendant can ask the handler… on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). … circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.
Florida v. Harris, 133 S. Ct. 1050, 1057-58, 185 L. Ed. 2d 61 (2013)

MOVE for DISCOVERY and PRESERVE OBJECTIONS:  Harris provides defenders with authority to explore not only the reliability of a sniffer dog’s past usage, but also the training of both the dog and the handler.  We can do this pre-trial or at trial.  Also NOTE: The 9th Circuit recently found a Brady violation where the state had knowledge of the dog’s previous mistaken alerts, and failed to disclose it to defense counsel. Aguilar v. Woodford, 09-55575, 2013 WL 3870727 (9th Cir. July 29, 2013).
Contributed by Susan Balliet