Saturday, April 23, 2011

Fla. justices throw out evidence found by drug dog

By BILL KACZOR (Associated Press)

TALLAHASSEE, Fla. -- Citing a lack of state standards for
drug-sniffing dogs, the Florida Supreme Court on Thursday tossed out
evidence a canine detected against a Panhandle man.

It was one of two warrantless search and seizure cases the justices
decided Thursday. Both set new guidelines for such cases.

While the 5-1 drug dog decision will make it more difficult for
police to obtain evidence, the 5-2 ruling in the second case should
make it easier. That opinion upheld evidence that police obtained
through human surveillance in a South Florida drug case.

"Because a dog cannot be cross-examined like a police officer on the
scene whose observations often provide the basis for probable cause
to search a vehicle, the state must introduce evidence concerning the
dog's reliability," Justice Barbara Pariente wrote for the court.

Given the lack of statewide standards for single-purpose,
drug-detecting dogs, training certificates and records aren't enough,
Pariente wrote.

Prosecutors also must present other evidence including field
performance records and an explanation of each dog's training as well
as evidence concerning the experience and training of the officer
handling the dog. Further, it's the state's responsibility to prove a
dog is reliable, not the defendant's burden to show otherwise.

Chief Justice Charles Canady dissented.

"The majority demands a level of certainty that goes beyond what is
required by the governing probable cause standard," Canady wrote. He
added the dogs will need "to be virtually infallible."

The U.S. Supreme Court approved drug-sniffing dogs to check vehicles
during routine traffic stops in 2005, but their accuracy has remained an issue.

The Oregon Supreme Court also set reliability criteria in a pair of
rulings earlier this month, and a Chicago Tribune analysis of
Illinois data in January showed the dogs are wrong more often than
they are right.

Just last week, the Florida Supreme Court ruled in a separate case
that police must get a warrant before using drug-sniffing dogs at the
front door of a home.

Attorney General Pam Bondi said she would appeal that ruling to the
U.S. Supreme Court, but her office had no immediate comment on the
latest ruling.

It reversed a 1st District Court of Appeal decision that had upheld a
judge's refusal to suppress drug evidence obtained against Clayton
Harris during a 2006 traffic stop in Liberty County southwest of Tallahassee.

Sheriff's Deputy William Wheetley's dog Aldo alerted to the driver's
side door handle after Harris refused to consent to a search of his truck.

Wheetley then found more than 200 pseudoephedrine pills under the
driver's seat and 8,000 matches in eight boxes on the passenger's
side. A later search turned up muriatic acid in a toolbox.

All three items are used to make methamphetamine. Harris admitted he
was addicted to meth and "cooked" it at his home in Blountstown. He
pleaded no contest and received a two-year prison sentence, but he
reserved the right to appeal the denial of his suppression motion.

The state presented evidence Aldo had been trained to detect several
types of drugs including meth, but Pariente noted the list did not
include pseudoephedrine. Also, two months later, Wheetley again
stopped Harris for a traffic infraction and Aldo again alerted to the
door handle, but this time no illegal drugs were found.

Pariente pointed out that only Aldo's successes were noted in his
training records, not his failures, so there was no way to determine
his effectiveness.

In the surveillance case, the majority upheld Anthony Hankerson's
cocaine conviction and 10-year prison term.

The opinion by Canady reversed a 4th District Court of Appeal ruling
that evidence found on Hankerson should have been suppressed. The
appeal court cited a prior appellate court ruling that a single
suspicious event was not enough to establish probable cause for a
search without a warrant.

In Hankerson's case, a Delray Beach police officer saw him give
objects to three people in exchange for money in quick succession.
Based on that information, another Delray Beach officer stopped his
vehicle and found a bag of cocaine in one of his shoes.

The search was justified because the first officer saw three
transactions, not just one, Canady wrote.

In dissent, Pariente argued those exchanges were a single transaction
because they took place in a matter of seconds and could not justify
a search. Justice James Perry concurred with her dissent.

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