State v. Laveroni, No. 4D04-2443.

• Court: United States State Supreme Court of Florida
• Writing for the Court: Klein
• Citation: 910 So.2d 333
• Decision Date: 14 September 2005
• Docket Number: No. 4D04-2443.
• Parties: STATE of Florida, Appellant, v. Ronald LAVERONI, Appellee.

910 So.2d 333 STATE of Florida, Appellant,
v.
Ronald LAVERONI, Appellee. No. 4D04-2443. District Court of Appeal of Florida, Fourth District. September 14, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.

Michele A. Lucas of the Law Offices of McDermott & Lucas, P.A., Daytona Beach, for appellee.

Page 334

KLEIN, J.

The state appeals an order granting defendant's motion to suppress drugs found in a car after a narcotics detection dog indicated the presence of drugs. We reverse the order, which was based on the failure of the state to prove the reliability of the dog under Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), because that issue was not raised in the motion to suppress, and certify conflict with Matheson.

A citizen informed a detective, with whom she was acquainted, that the defendant would be selling narcotics at a certain bar between 8:00 p.m. and 10:00 p.m. on a particular night, and described him, his vehicle, the Tennessee license tag, and a name plate on the front of the car. The detective observed the car arrive and saw the defendant enter the bar and quickly leave. As the defendant drove away he almost caused an accident with another car, which had to swerve to avoid him, and the detective called for another officer to assist him in stopping defendant because of the reckless driving he had observed. Defendant was then stopped, and after he refused to allow the detective to search his car, the detective requested another officer to bring a narcotics dog. The officer and the dog arrived while the detective was still writing the citation, and drugs were found in a search of the car after the dog alerted at the open driver's window.

The only argument advanced by defendant at the hearing on the motion to suppress was that there had been an unreasonable delay between the stop and the arrival of the narcotics dog; however, the evidence did not support that theory and the court did not suppress on that ground. The court, on its own, after the parties rested, raised the issue of whether there was sufficient proof that the narcotics dog was qualified so as to establish probable cause under Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003). In Matheson, the court held that proof that a narcotics dog has been trained and certified is insufficient in and of itself to establish probable cause based on a dog alert, explaining:

[W]e conclude that the fact that a dog has been trained and certified, standing alone, is insufficient to give officers probable cause to search based on the dog's alert. One Florida case has recited additional factors that must be known in order to conclude that an alert by a narcotics detection dog is sufficiently "reliable" to furnish probable cause to search. In State v. Foster, 390 So.2d 469 (Fla. 3d DCA 1980), the Third District identified these factors as

the exact training the detector dog has received; the standards or criteria employed in selecting dogs for marijuana detection training; the standards the dog was required to meet to successfully complete his training program; the "track record" of the dog up until the search (emphasis must be placed on the amount of false alerts or mistakes the dog has furnished).

Foster, 390 So.2d at 470 (quoting Hansen, 13 San Diego L.Rev. at 417). We agree with this list of factors, and we especially join in the Foster court's emphasis on the dog's performance...