Matheson v. State

• Decision Date: 01 August 2003
• Docket Number: No. 2D00-1611.,2D00-1611.
• Citation: 870 So.2d 8
• Parties: Gary Alan MATHESON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

870 So.2d 8

Gary Alan MATHESON, Appellant, v. STATE of Florida, Appellee.

No. 2D00-1611.

District Court of Appeal of Florida, Second District.

August 1, 2003.

Rehearing Denied March 5, 2004.

James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Gary Alan Matheson maintains the State failed to prove that an alert by Razor, a narcotics detection dog in service to the Hillsborough County Sheriff's Office, furnished probable cause to search his vehicle. He advanced that position during his prosecution for drug offenses in a motion to suppress the contraband discovered and seized during the search. When the circuit court denied the motion, Matheson pleaded no contest to three counts of possessing a controlled substance and one count of possessing drug paraphernalia. He reserved his right to appeal the denial of his dispositive motion to suppress. We reverse.

PROCEEDINGS BELOW

At the suppression hearing it was related that in May 1999 Razor was called upon to sniff Matheson's car after deputies stopped Matheson for a traffic infraction. During the traffic stop the deputies had made what they described as a routine request for permission to search Matheson's car. Matheson had declined; hence, the deputy called for Razor's assistance.

The State offered the testimony of Razor's handler, Deputy Greco, who recounted that he arrived at the scene as another deputy was writing Matheson a traffic citation. Deputy Greco testified that he followed his normal routine by taking Razor to the driver's side door of Matheson's car and quickly walking the dog around the car in a clockwise direction. Razor did not alert on this first pass. Deputy Greco then walked Razor slowly around the car, allowing him to linger at the "seams." This time, Razor scratched and bit at the edge of the car's hatchback, which Deputy Greco recognized as Razor's alert behavior.

Deputy Greco advised his colleagues that Razor had alerted. They then entered Matheson's car and searched it. In the rear of the car they discovered a bag containing drug paraphernalia, including syringes and spoons. In the glove compartment the deputies found hydrocodone tablets, morphine tablets, and methamphetamine.

On the evening that Deputy Greco walked Razor around Matheson's car, he had been a canine handler for about twenty-one months. He testified that he had taken training both in canine patrol handling and in narcotics detection. He and Razor had been assigned to each other since both began their services in canine patrol in August 1997. Prior to Razor's sniff of Matheson's car, he had been certified to detect marijuana, cocaine and heroin. He subsequently was certified to detect methamphetamine.

On cross-examination, Deputy Greco acknowledged that he had not maintained a record of Razor's false alert rate. In fact, he often left the scene of a sniff after advising deputies that Razor had alerted, and thus never learned whether the alert had led to the discovery of contraband.

At the conclusion of Deputy Greco's testimony, the State rested. The circuit court agreed that the State had made a prima facie showing that the search of Matheson's car was supported by probable cause.

The defense then presented the testimony of Razor's trainer, Sergeant Olive. He testified that Razor completed a thirty-day course of training by the Hillsborough County Sheriff's Office in October 1997 and a one-week program under the auspices of the United States Police Canine Association in June 1998.

During questioning about the specifics of the HCSO and USPCA training regimens, Sergeant Olive testified that Razor had received no training to discourage him from alerting to "dead scents," those being residual odors of drugs that are no longer present. Sergeant Olive also confirmed that the Sheriff's Office did not maintain records of Razor's success rate. When explaining this, he maintained that it would be impossible to assess a dog's reliability "in the street" because the dog might alert on dead scents. Sergeant Olive asserted that he would not consider an alert on a dead scent to be a false alert because the dog had done what he was conditioned and certified to do, i.e., alert to the odor of contraband.

The defense submitted the expert testimony of Dr. Dan Craig, a veterinarian and animal behavior specialist whose background included extensive consultation with the United States military and other agencies regarding their detection dog programs. Dr. Craig testified that the HCSO training procedures used with Razor were too simplistic to make him reliable at detecting narcotics for six reasons. First, Razor received inadequate training for searching vehicles. Second, Razor was not trained with small quantities of drugs. Third, training officers failed to plant novel odors during Razor's training searches. Fourth, Razor was not subject to controlled negative testing, in which all objects or locations have no drugs present. Dr. Craig said that this type of testing indicates a false response rate and reveals whether the handler or the dog is guessing. He added that preventing the handler from knowing whether drugs will be present during a training exercise reveals whether the handler is consciously or unconsciously prompting the dog to alert. Dr. Craig asserted that this type of testing is essential and should be performed periodically on a random basis. Fifth, Razor was not given extinction training, which would have discouraged him from alerting to common items that are sometimes associated with drugs, such as plastic bags used for packaging. Sixth, there was no evidence that Razor's training included "stimulus generalization," which conditions a dog trained on one class of drugs to detect all drugs in that class.

Addressing Razor's USPCA certification, Dr. Craig testified that there were a number of flaws in the USPCA certification procedures that rendered this certification insufficient evidence of Razor's reliability. First, the USPCA did not perform controlled negative testing. Second, the USPCA limited the dog's search time to ten minutes, which is shorter than "real world" searches. Third, the USPCA required only a seventy percent proficiency, which Dr. Craig considered insufficient. Fourth, the USPCA failed to focus on the dog's ability to detect narcotics, but analyzed the ability of the dog and handler as a team. Therefore, according to Dr. Craig, the USPCA could not truly certify the dog's individual ability to detect narcotics. Fifth, Razor was not certified to detect methamphetamine, and his training did not prepare him to reliably detect this substance.

DISCUSSION

Under the Fourth Amendment, a law enforcement officer may not search a place within the ambit of a person's legitimate expectation of privacy unless the officer has probable cause to believe that a search of that place at that time will uncover evidence of a crime. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002),

cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). Whether applying for a search warrant beforehand or justifying a warrantless search after the fact, it is the State's burden to show that the search will be or was justified by probable cause. See Doorbal v. State, 837 So.2d 940, 952 (Fla.),

cert. denied, ___ U.S. ___, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Doctor v. State, 596 So.2d 442, 445 (Fla.1992).

In this case the State contends that it met its burden based on the testimony of Deputy Greco. It maintains that by proving Razor was trained and certified, it established prima facie that Razor's alert gave the deputies probable cause to believe Matheson's car contained contraband. This position finds support in several courts, including the United States Sixth Circuit Court of Appeals and the Georgia Court of Appeals. Those courts have held that a certification that a dog has been trained is prima facie proof of the dog's reliability which then may be rebutted by the presentation of evidence regarding the dog's performance or training. See United States v. Hill, 195 F.3d 258, 273 (6th Cir.1999)

; United States v. Diaz, 25 F.3d 392, 395 (6th Cir.1994); Warren v. State, 254 Ga.App. 52, 561 S.E.2d 190, 194-95 (2002); Dawson v. State, 238 Ga.App. 263, 518 S.E.2d 477, 481 (1999). "Although the dog's `credibility' may be undermined by evidence of its lack of training or past unreliability, the ultimate determination as to whether the dog is sufficiently reliable to support a determination of probable cause is for the trial court as the trier of fact." Dawson, 518 S.E.2d at 480.

When the evidence presented, whether testimony from the dog's trainer or records of the dog's training, establishes that the dog is generally certified as a drug detection dog, any other evidence, including the testimony of other experts, that may detract from the reliability of the dog's performance properly goes to the "credibility" of the dog. Lack of additional evidence, such as documentation of the exact course of training, similarly would affect the dog's reliability. As with the admissibility of evidence generally, the admissibility of evidence regarding a dog's training and reliability is committed to the trial court's sound discretion.

Diaz, 25 F.3d at 394.

"Prima facie" means that the proponent has fulfilled his duty to produce evidence and there is sufficient evidence for the court to consider the issue. Charles W. Ehrhardt, Florida Evidence § 301.2 (2002). Thus, the proposition advanced by the State is that the fact that a dog has been trained and certified to detect narcotics, standing alone, justifies an officer's reliance on the dog's alert to establish probable cause to search. But our review of the record and of pertinent literature convinces us that this is not enough.

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