U.S. v. Kennedy

• Citation: 131 F.3d 1371
• Decision Date: 03 December 1997
• Docket Number: No. 96-2290,96-2290
• Parties: 97 CJ C.A.R. 3062 UNITED STATES of America, Plaintiff-Appellant, v. Keiran George KENNEDY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1371

131 F.3d 1371

97 CJ C.A.R. 3062

UNITED STATES of America, Plaintiff-Appellant, v. Keiran George KENNEDY, Defendant-Appellee.

No. 96-2290.

United States Court of Appeals, Tenth Circuit.

Dec. 3, 1997.

Robert D. Kimball, Assistant United States Attorney, Albuquerque, New Mexico (John J. Kelly, United States Attorney, with him on the brief), for Plaintiff-Appellant.

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Albuquerque, New Mexico, for Defendant-Appellee.

Before ANDERSON, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Law enforcement officers seized over fifty pounds of marijuana from two suitcases carried by Defendant-Appellee Kieran George Kennedy after obtaining a search warrant based in part on a narcotics canine alert. Kennedy was indicted for possession with intent to distribute marijuana. The affidavit supporting the warrant described the drug dog as trained and certified to detect narcotics. However, the drug dog's handler had

not maintained proper records of the dog's reliability nor conducted periodic field training as instructed by the agency that had certified the dog. Kennedy moved to suppress the marijuana, claiming that the failure to mention the handler's poor record keeping and field training in the affidavit constituted a reckless omission of a material fact sufficient to invalidate the warrant. The district court agreed and granted Kennedy's motion, relying on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The government now appeals. We have jurisdiction under 18 U.S.C. § 3731. We reverse.

BACKGROUND

On August 18, 1994, a confidential source contacted Drug Enforcement Administration Special Agent Kevin J. Small ("Small"), stationed in Albuquerque, New Mexico, regarding Kennedy's behavior. The source reported the following information: a man traveling under the name of Kennedy purchased a one-way sleeper car roomette ticket with a credit card the morning of departure from Flagstaff, Arizona, to Chicago, Illinois; the man spoke with a British or Australian accent; the man had at least two suitcases, one of which was large and gray; after purchasing the ticket, the man stayed in his parked car, avoided contact with other passengers, and moved directly from his car to the train when it pulled in to the station for its brief stop. Most passengers wait in the station or on the train platform and mingle with other passengers. A law enforcement officer subsequently advised Small that Kennedy had left a rented car behind in Amtrak's Flagstaff parking lot and used a cellular phone for his reservation's callback number.

Based on this information, Small met the train when it arrived in Albuquerque later in the afternoon, accompanied by Albuquerque Police Detective Pat Castillo ("Castillo"). The attendant for defendant's sleeping car confirmed that a man fitting Kennedy's description had boarded the train in Flagstaff with a large suitcase stored in the sleeping car's common luggage area. The attendant identified a large gray American Tourister suitcase in the luggage area as Kennedy's bag. Small sniffed the bag. He noticed that the suitcase had a strong lemon scent that he believed to be consistent with deodorants or other substances used to mask the smell of narcotics. Castillo confirmed this observation.

Small called for Albuquerque Police Detective Rob Lujan ("Lujan"), the certified dog handler for the Albuquerque Police Department, and his dog Bobo. Small had worked with Bobo on ten to fifteen prior occasions. Bobo made an alert every time Small had worked with the dog, but two of those alerts turned out to be false--no seizable amounts of contraband were found. Once Lujan and Bobo arrived, Small had them check the sleeping car's common luggage area. Bobo alerted to Kennedy's gray bag. ¹

Small then knocked on the door of Kennedy's roomette and announced that he was a law enforcement officer. Kennedy, who spoke with a British accent, opened the door and agreed to speak with Small. Small taped the conversation. Kennedy identified himself, confirmed that he boarded in Flagstaff, and stated that he was bound for New York by way of Chicago and then to London by air. When Small asked Kennedy if he had any baggage, Kennedy said that he had been given a large gray suitcase stored in the baggage compartment to "drop" to someone who would meet him on the train. Kennedy said that a man named Will (he did not remember the last name) had given him the bag. Kennedy denied knowledge of the contents of the bag, said it was not his, and added that he had not packed the bag. Kennedy also told Small that Will had given him a second, smaller bag, and pointed out one of the bags in his room.

Small arrested Kennedy and removed the bags from the train. Bobo then alerted to Affiant requested Albuquerque Police Detective Rob Lujan and his canine "BOBO" to check the common luggage area of car 430. "BOBO" checked the luggage in the luggage area and he alerted to the gray large American Tourister hardsided suitcase. "BOBO" is a certified narcotics canine with the Albuquerque Police Department and is trained to alert to the odors associated with marijuana, Heroin, Cocaine, and/or Methamphetamine.

the smaller bag that had been seized from Kennedy's roomette. Small prepared a search warrant application for the bags, mentioning Bobo's alert to the suitcase and reciting Kennedy's story about his role as "courier" for the bags. The relevant portion of the search warrant application read as follows:

(emphasis added). ²

Based on Small's affidavit, a magistrate judge issued the warrant. The large gray bag contained more than thirty pounds of marijuana, and the smaller bag held twenty pounds of marijuana for a combined total in excess of 58 pounds. Small also found $5,000 in cash in Kennedy's personal belongings. Kennedy was indicted for knowing possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(D).

Seeking to suppress the seized contraband, Kennedy initiated discovery proceedings regarding Bobo's training and history in the hope of showing that Bobo was so unreliable that the warrant should be invalidated. ³ The discovery process revealed that Bobo and Lujan had been trained as a team and certified by Global Training Academy ("Global") in San Antonio, Texas, in November, 1993. Bobo received a 96% success rating from Global. Global's manual instructed Lujan to keep proper records of Bobo's activities and Lujan, however, ignored Global's directives. Lujan did not keep records of Bobo's field work. Lujan also field trained Bobo only sporadically, contrary to Global's instructions. The available records revealed that Bobo alerted 56 times from the November, 1993, certification up until August 18, 1994, the date of the incident in question. ⁵ He accurately alerted in 40 of those cases and falsely alerted in the remaining 16 (a 71.4% success rate). ⁶ Bobo was recertified by Global in September, 1994, one month after his alert to Kennedy's luggage, with a success rate of 96%.

                periodically field train Bobo to ensure Bobo's continued reliability.  Global's continued assurance of Bobo's accuracy depended on Lujan following these instructions. 4  Over time, if not properly monitored, a dog may fall out of its trained behavior and begin responding to a handler's cues rather than to actual detection of a narcotic odor.  A drug dog will lose its effectiveness in the field and may revert to old, bad habits if not continually trained.  Accurate record keeping is essential to insure the dog's reliability until the dog is recertified
                

Kennedy moved to suppress the marijuana seized from the bags. Kennedy argued that Lujan's failure to follow Global's instructions impermissibly tainted the magistrate judge's probable cause determination by fatally undermining the claim in the affidavit that Bobo was a trained and certified narcotics canine. The district court initially denied Kennedy's motion, although the court did find that Lujan had been reckless in failing to mention to Small his poor record-keeping and training habits and that the omission of those facts from the affidavit was significant. However, the court did not find that Lujan's recklessness tainted Small's affidavit and thus refused to invalidate the warrant. On Kennedy's motion to reconsider, however, the district court reversed course, holding that Lujan's recklessness could be imputed to Small. Consequently, the district court ruled to suppress the marijuana. The government now appeals pursuant to 18 U.S.C. § 3731.

DISCUSSION

We find that the magistrate judge had sufficient probable cause to issue a warrant to search Kennedy's luggage. Though Lujan's training and record keeping were shoddy at best, we conclude that Small did not omit any material facts that would have altered the magistrate judge's probable cause determination by failing to mention Lujan's shortcomings. Had Small included all of the information revealed at the suppression hearing regarding Bobo's reliability and Lujan's sloppy conduct, a reasonable magistrate judge still would have issued the warrant.

We review de novo a district court's determination of reasonableness under the Fourth Amendment. United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). We review the reasonableness of a warrant to determine "whether the issuing magistrate ... had a 'substantial basis' for finding probable cause," giving "great deference" to the issuing magistrate judge's decision. United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.1996) (en banc) (citation omitted). We review a district court's factual findings in ruling on a suppression motion for clear error. Hernandez, 93 F.3d at 1498. The government does not contest the district court's factual findings and we find adequate evidence in the record to support those findings. Thus, we adopt those...