Brooks v. People

• Decision Date: 22 February 1999
• Docket Number: No. 97SC758,97SC758
• Parties: 1999 CJ C.A.R. 2353, 1999 CJ C.A.R. 999 Dwayne BROOKS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1105

975 P.2d 1105

1999 CJ C.A.R. 2353, 1999 CJ C.A.R. 999

Dwayne BROOKS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 97SC758.

Supreme Court of Colorado,

En Banc.

Feb. 22, 1999.

As Modified on Denial of Rehearing

April 12, 1999.

David F. Vela, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, for Petitioner.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Roger G. Billotte, Assistant Attorney General Criminal Enforcement Section, Denver, for Respondent.

Wells, Anderson & Race LLC, Mary A. Wells, L. Michael Brooks, Jr., Denver, Colorado, The Product Liability Advisory Council, Inc., Hugh F. Young, Jr., Reston, Virginia, Attorneys for Amicus Curiae, The Product Liability Advisory Council, Inc.

Justice MARTINEZ delivered the Opinion of the Court.

In this case, we consider the admissibility of expert testimony describing the scent tracking and purported identification of a criminal defendant by a trained police bloodhound. Specifically, we determine whether the "general acceptance" standard embodied in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), or the scientific validation factors enumerated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), are useful to analyze scent tracking evidence. ¹

We conclude that testimony on this subject is not susceptible to review under standards which were not designed for experience-based specialized knowledge. Accordingly, we decline to apply the Frye test or the Daubert factors. Instead, we hold that scent tracking evidence must be governed by a conventional CRE 702 and CRE 403 analysis, and we adopt the majority rule for assessing the reliability of such evidence.

The court of appeals found that the scent tracking evidence in this case was properly before the jury. See People v. Brooks, 950 P.2d 649, 653 (Colo.App.1997). Because our review of the record supports the court's conclusion, we affirm.

I.

Dwayne Brooks, the petitioner and defendant below, was charged with second degree burglary, ² attempted theft, ³ and possession of burglary tools ⁴ in connection with events that took place during the early evening hours of November 15, 1993. On the night in question, a resident called the police after he discovered someone breaking into the home of his neighbor.

Within minutes, several police officers arrived at the scene, taking cover some 100 to 120 feet away. The victim's house was illuminated by a nearby streetlight, and the ground was covered with several inches of new snow. After a few minutes, several witnesses saw the suspect exit the house and proceed toward the curb, but none were able to get a good enough look at his face to offer a conclusive identification. An officer aired the following description: a black male with a medium build, wearing dark pants, a gray jacket, and perhaps white gloves. Another officer gave a similar description, indicating a stocky black male wearing dark clothing. The neighbor who had called in the report believed that the burglar was wearing a dark colored ski suit. The height and weight estimations given by these witnesses varied.

The suspect walked away from the house, paused when police called for him to halt, and then ran in the opposite direction. As officers pursued on foot, the suspect darted between two houses and began jumping fences, traveling from backyard to backyard in the residential subdivision. One officer radioed for a "K-9" scent tracking unit and remained at the fence to point out the suspect's footprints in the fresh snow to the K-9 unit, while others followed the tracks.

Officer Jerry Nichols arrived with his dog "Yogi," a purebred bloodhound he had been training since about nine or ten weeks of age. This training consisted of exposing the dog to an object handled by a target individual, and then requiring that Yogi find this person. Positive reinforcement was apparently used to facilitate the process. Thus, when the dog successfully found the target, he was rewarded with a treat. As the training progressed, the trails were made longer and more difficult, with distractions and other irregularities added.

Yogi had been trained to "drop-trail." That is, he had the ability to continue following a scent even after being pulled off the original trail for a period of time. In training exercises, this would be accomplished by stopping the dog in the middle of a track, and waiting fifteen to twenty minutes before directing the dog to continue. According to Nichols, Yogi would successfully resume tracking, following the correct trail when tested in this manner.

Out of 480 training sessions, Yogi had failed to track on fourteen occasions, most of which Officer Nichols attributed to handler error. Nichols also kept a record of Yogi's performance in "real-life" tracks. Out of some 390 such deployments, Nichols reported confirmed finds by Yogi in 214 cases. A find was considered "confirmed" if it was supported by independent corroborating evidence.

Yogi was led to the footprints left by the suspect in this case, and the dog began following the trail. During the chase, when Yogi would reach a fence, Officer Nichols would pull him from the trail, move the dog to the other side, and allow him to continue tracking. ⁵ As the officers and Yogi approached one such fence, a man fitting the general description of the suspect aired earlier jumped from some shrubbery on the other side and ran.

Eventually, Yogi led Nichols to a garage attached to another private residence in the subdivision. The other officers who had been following the suspect's footprints arrived at this location as well. While officers did not immediately see anyone, they noticed Yogi sniffing near a pickup truck parked inside. An officer used a flashlight to illuminate the floor under the truck and discovered the defendant Dwayne Brooks hiding beneath the vehicle. Brooks was wearing a gray jacket like that reportedly seen on the suspect, and he fit the general description aired by officers earlier. The jacket Brooks wore was also consistent with the description of the individual flushed from the shadows during trailing efforts.

Brooks struggled with the officers as they attempted to take him into custody. He also refused to provide any personal information, supplying the alias "Mark Scott" instead of his name. During a frisk for weapons, officers discovered two large screw-drivers in the jacket Brooks was wearing, and a Glade "plug-in" air freshener was found in his pocket. The air-fresher was identified as having been taken from the victim's residence, as were a gold ring found on the floor where Brooks was found hiding and a necklace subsequently discovered on his person. The screw-drivers were consistent with pry-marks found on the door of the victim's home.

Once Brooks was under control, the officers attempted to confirm whether he was the individual Yogi had been trailing. Officer Nichols led Yogi back into the garage where Brooks was standing handcuffed among several police officers. Yogi approached Brooks, nuzzling and pawing him, while slobbering and apparently anticipating a treat. According to Nichols, this was consistent with Yogi's training. Based on the dog's behavior, Nichols concluded that Brooks was, in fact, the person whose trail Yogi had been following.

Following arrest and the filing of charges, Brooks entered a plea of not guilty and submitted various pleadings, including a motion to suppress "dog evidence." Specifically, the defense sought to exclude any reference whatsoever to Yogi's involvement in the case, especially the purported identification of Brooks as the source of the scent being tracked.

The defendant maintained that scent tracking should be viewed as scientific evidence and excluded under either Frye v. United States, 293 F. 1013 (D.C.Cir.1923) or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Following an extensive hearing the trial court found that Frye did not apply. Relying on Daubert, however, the court stated that testimony about Yogi's training and performance could only be considered "specialized knowledge ... in the loosest sense of the term," and would not support the "gloss of expertise" under CRE 702 because no "scientific method" had been offered to explain how dogs track a particular scent. Although it concluded that the evidence would not be allowed as expert testimony under CRE 702, the court qualified its ruling by finding that Officer Nichols might be permitted to testify about the scent tracking and his observations of Yogi as a lay witness pursuant to CRE 701. This question was left for consideration by a visiting judge who would actually be conducting the trial in Brooks' case.

The second judge disagreed with the earlier court's reliance on Daubert, and made a finding at a subsequent hearing that the testimony of Officer Nichols was admissible as expert testimony under CRE 702. However, in deference to the earlier ruling, the second judge decided to admit the evidence only as a lay opinion under CRE 701.

At trial, Nichols discussed Yogi's training and qualifications as detailed above, and related the events leading up to Brooks' arrest on the night of the crime. He gave his opinion that Yogi had identified Brooks as the person who had left the tracks attributed to the perpetrator. Nichols also spoke briefly regarding his own "theory" about bloodhound tracking, relating his view that the dogs can pick up scents left in the form of skin cells shed by humans as they move. He conceded, however, that no one had been able to establish precisely how the dogs were able to track.

Brooks was convicted on all counts, and sentenced to a term of fifteen years in the Department of Corrections. He challenged his convictions before ...