DUI Appeal - Florida Drug Dog Sniff Not Reliable For Search

This is a non-DUI case, but since many DUI cases also involve drugs, DAD thought it might be of some value to the readers. In Wiggs v. State of Florida, --- So.3d ----, 2011 WL 3300139 (Fla.App. 2 Dist.) the defendant appealed his conviction for cocaine possession, alleging that the drug dog's sniff and alert did not establish probable cause to allow for a warrantless search of his vehicle. The appeals court agreed that the drug dog (whose name is Zuul) alert was insufficent to establish probable cause to search the vehicle, and reversed. The facts at the motion to suppress were as follows:
Just before midnight on August 14, 2007, a Sarasota County deputy stopped Wiggs' vehicle for running a red light on U.S. 301. The deputy detained Wiggs in order to prepare a warning citation. During the detention, a drug-detection dog named Zuul alerted to Wiggs' vehicle. A search of the vehicle revealed the cocaine that forms the basis for the charge in this case.

Wiggs filed a motion to suppress the cocaine in which he argued that Zuul's alert did not provide probable cause to search his vehicle. Wiggs challenged Zuul's reliability and cited evidence of numerous “false alerts” by the dog in the field. At the hearing on Wiggs' motion to suppress, the State presented testimony and documents regarding Zuul's training and field record.

Deputy Indico and Zuul had been summoned to seventeen vehicle stops between May and August of 2007. Ten of these encounters resulted in Zuul alerting on the vehicle with no discovery of drugs. Four post-alert vehicle searches, including Wiggs', resulted in the discovery of drugs. And three encounters ended with no alert.

Deputy Indico and Zuul completed an eighty-hour narcotics training course offered by the Sarasota Sheriff's Office as well as a 400–hour patrol course. In addition, Deputy Indico and Zuul were certified by the Florida Department of Law Enforcement (FDLE) and National Police Canine Association (NPCA). Deputy Indico and Zuul's training and certification process was completed on April 27, 2007.

Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.

To obtain NPCA certification Deputy Indico and Zuul had to meet specific NPCA training standards, which were admitted in evidence, and achieve 75 percent accuracy. The pair had to find narcotics in two out of four vehicles and from two out of three rooms within a building. The FDLE certification was for apprehension, tracking, and building searches but did not include any narcotics detection training.

After graduation Zuul and Deputy Indico continued to train on a weekly basis. They have been certified every year by the requirements set forth from the NPCA training standards. Deputy Indico kept monthly training and scent detection logs which the State introduced in evidence. The logs covered Zuul's initial training in February 2007 as well as his weekly training up until Wiggs' stop on August 14, 2007.

Deputy Indico also kept a monthly report of Zuul's field activity from April 2007 until August 2007, which the State introduced in evidence. On the positive vehicle alerts that did not result in a drug find, or unverified alerts, Deputy Indico documented any history the vehicle or its passengers had with drugs. Deputy Indico acknowledged that Zuul had not been trained to refrain from alerting to residual odors. Thus, it was important for Deputy Indico to document the history of the driver and vehicle on unverified alerts. Deputy Indico explained that he obtained the histories by interviewing the driver or passengers. If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert. Deputy Indico did not document the details of the alleged drug histories.

Deputy Indico began using Zuul to search for narcotics during vehicle stops on May 14, 2007. During the first stop Zuul alerted and a marijuana pipe was discovered. The next day, May 15, Zuul alerted on another vehicle, but nothing was found. Deputy Indico documented that the passenger admitted using cocaine at some time before the stop. On May 17, 2007, Zuul alerted to a vehicle, but no narcotics were found. The deputy documented that the vehicle had a “narcotics history.” Similarly, Zuul alerted on May 18, 2007, and nothing was found, but the driver admitted to smoking marijuana. On June 2 and 9 Zuul sniffed vehicles for drugs but did not alert.

The appeals court discussed the state of drug dog alerts under Florida law and wrote:

"The [Florida Supreme] court explained that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” Id. at S166–67. The court reasoned that the certification and training of drug-detection dogs was not subject to a uniform statewide or nationwide standard. Id. at S167. Additionally, the fact of the dog's training and certification did not account for the possibility of false alerts, handler error, and alerts to residual odors. Finally, allowing the fact that a dog has been trained and certified to provide a prima facie case of probable cause would improperly place on the defendant the burden of production of evidence solely within the control of law enforcement. Id.

Thus, the supreme court adopted a “totality of the circumstances approach” that places the burden of producing evidence to establish the dog's reliability on the State. Id. at S168.

The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability."

In concluding that this particular dog did not establish sufficient p.c. to search, the court stated:

"Here, the State presented evidence of Deputy Indico and Zuul's national training and certification which included the NPCA training standards that were met. The State established that Zuul had to be at least 75 percent accurate in his certification training and never alerted on any blank vehicles during training. Through Deputy Indico, the State provided details regarding Zuul's police training, including discussion of the various environments and distractions.

The State also produced Zuul's field performance records. However, the dog's field performance records were problematic. Zuul had conducted seventeen vehicle sniffs in the field and alerted fourteen times. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul's alerts uncovered narcotics, Zuul's field accuracy rate is four out of fourteen, or approximately 29 percent. This accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert."

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Drug Arrest Reversed Illegal Drug Dog Sniff

In Pfeiffer v. State of Texas, Not Reported in S.W.3d, 2011 WL 1734065 (Tex.App.-Texarkana) the defendant unsuccessfully challenged the validity of his continuing seizure in order to bring a canine unit to the scene following a lawful traffic stop. The facts were described as follows:

On March 22, 2007, on Highway 37 North, about a mile north of Clarksville, Red River County, Texas, State Trooper Matthew Kuhelengel stopped Lavern A. Pfeiffer's truck because the truck did not have mud flaps. Kuhelengel questioned Pfeiffer about his identity, place of residence, and travel destination. The officer twice told Pfeiffer that he was going to give him a warning about the mud flaps, and after checking Pfeiffer's license through dispatch, determined that he had no outstanding warrants. Upon further questioning by Kuhelengel, Pfeiffer admitted that he “got a DWI” thirty years prior. Pfeiffer then denied Kuhelengel's subsequent requests for permission to search the vehicle. Noting that Pfeiffer was “talking a lot,” “very nervous,” and that he had been “arrested a bunch of times,” Kuhelengel requested a canine unit and continued to detain Pfeiffer until it arrived. After the dog showed a positive response on the rear passenger door, a crude pipe was found in the rear floorboard and a bottle of methamphetamine was found in the front console. Pfeiffer was arrested and charged with possession of a controlled substance.
Pfeiffer argued that the warrantless search violated his Fourth Amendment rights because it lacked requisite cause and because he was illegally detained after the traffic stop was completed. The trial court denied Pfeiffer's motion. Pfeiffer pled guilty and received a ten-year probated sentence. On appeal, Pfeiffer argues that “his continued detention by the police was without sufficient cause, rendering the later search of his vehicle invalid.”

On appeal, the court agreed with the defendant and reversed. The court summarized the law on prolonged detention as follows:
"During a routine traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Caraway, 255 S.W .3d at 307. If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex.App.-Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg, J., concurring)). Once the officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that another offense has been or is being committed. Id. at 245."
The appeals court found that during the stop, Pfeiffer was unquestionably very nervous, and he tended to ramble when questioned. However, without more, the facts and circumstances present did not give rise to reasonable suspicion to allow the detention to be prolonged once the purpose for the original stop had been completed.

EDITORS NOTE: Had the drug dog arrived during the time that the initial purpose of the stop was still unfolding, the 'sniff' would have been lawful and the subsequent search upheld. See Illinois v. Caballes. The above case is all about the LENGTH, rather than the SCOPE, of detention.


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