U.S. v. Outlaw, P-00-CR-198.

• Decision Date: 14 March 2001
• Docket Number: No. P-00-CR-198.,P-00-CR-198.
• Citation: 134 F.Supp.2d 807
• Parties: UNITED STATES of America v. Freeman Charles OUTLAW
• Court: U.S. District Court — Western District of Texas

134 F.Supp.2d 807

UNITED STATES of America v. Freeman Charles OUTLAW

No. P-00-CR-198.

United States District Court, W.D. Texas, Pecos Division.

March 14, 2001.

Kelly Wayne Loving, Assistant U.S. Attorney, Alpine, TX, for Government.

Charlotte Harris, Assistant Federal Public Defender, Alpine, TX, for Defendant.

ORDER ADOPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING DEFENDANT'S MOTION FOR A DAUBERT HEARING AND MOTION TO SUPPRESS EVIDENCE

FURGESON, District Judge.

Before the Court is the Magistrate Judge's Proposed Findings of Fact and Recommendation, filed November 16, 2000 in the above-styled matter. The Defendant filed specific objections to the findings on January 8, 2001. After conducting a de novo review, the Court is of the opinion that the Defendant's Motion for Daubert Hearing and Motion to Suppress Evidence and should be DENIED.

STANDARD OF REVIEW

A district court reviews de novo a magistrate judge's report and recommendations when either party makes specific objections within ten days of receipt of the report. 28 U.S.C. § 636(b)(1). If no objections are filed, the court reviews for findings and conclusions that are either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219 (5th Cir.1989). The Defendant timely filed specific objections and, therefore, this Court conducts a de novo review of the Magistrate Judge's report and recommendations.

Facts and Procedural History

On April 21, 2000, the Defendant Freeman Charles Outlaw was a passenger on a Greyhound bus that was stopped at the Sierra Blanca checkpoint. Border Patrol Agent Marquez boarded the bus and conducted an immigration inspection of the passengers. At the same time, Border Patrol agent Navarro conducted a canine inspection of the bus's cargo area. Gerri, the canine used for the inspection, alerted Agent Navarro, Gerri's handler, to a black, hard-shelled suitcase. Attached to the suitcase was a claim tag with the name "O. Freeman." After none of the passengers came forward to claim the suitcase, agents conducted a physical inspection of the passengers' tickets to determine the suitcase's owner. Agent Navarro identified the Defendant as having the ticket matching the claim stub for the suitcase.

The Defendant was asked to step off the bus and was questioned about the suitcase. According to Agent Navarro, the Defendant stated that the suitcase contained only clothes. Agent Navarro also testified that the Defendant agreed to allow the agents to search the suit case. The suitcase, however, was locked and Defendant told Agents that he did not have the combination to the suitcase's lock. Agent Navarro then proceeded to open the suitcase using a pocket knife. A search of its contents uncovered two, one gallon plastic jars containing, what field tests revealed to be, PCP. Agents then placed the Defendant under arrest.

Defendant moved to suppress the evidence uncovered as part of the April 21, 2000 stop arguing several violations of his constitutional rights. First, the Defendant argues that his continued detention at the checkpoint after the completion of the immigration inspection amounted to an illegal detention and seizure. Second, the Defendant contends that the canine inspection was an unlawful search. Third, the Defendant asserts that the physical search of his luggage violated his Fourth Amendment rights because it was done without a warrant, probable cause, or his valid consent. Finally, the Defendant argues that he was interrogated without presence of counsel in violation of his Sixth Amendment right to counsel. In addition, the Defendant filed a Motion for a Daubert Hearing to challenge the qualifications and reliability of Gerri, the dog used in the canine search.

The Defendant's Motion to Suppress Evidence and Motion for a Daubert Hearing were referred to United States Magistrate Judge L. Stuart Platt by order of this Court filed September 6, 2000. A hearing was held before the Magistrate Judge on October 3, 2000. After careful consideration of the Defendant's Motions, case law, and evidence, the Magistrate Judge issued a recommendation that both of the Defendant's Motions be denied. The Defendant timely filed specific objections to the Magistrate Judge's recommendation. Though Defendants makes numerous objections, they fall into several broad categories: (1) the Magistrate Judge erred in his determinations and findings of fact relating to the issue of the reliability of the canine alert that led to the continued detention of the bus and the eventual search of Defendant's suitcase; (2) the Magistrate Judge erred in determining that the continued detention of the bus and its passengers by Border Patrol Agents after the completion of the immigration inspection did not violate Defendant's Fourth Amendment right against unreasonable seizures; and (3) the Magistrate Judge erred in finding that the Defendant gave his valid consent for Border Patrol agents to search his suitcase.

The Court now conducts a de novo review of the issues and findings specifically objected to by the Defendant.

DISCUSSION

I. Defendant's Motion for a Daubert Hearing and Objections to the Reliability of the Canine Inspection

A. Daubert hearing is not the appropriate procedural vehicle to challenge the reliability of a canine inspection.

The Defendant filed a Motion for a Daubert Hearing pursuant to FED. R. EVID. 104(a). The Defendant's proffered purpose for a Daubert hearing is to determine whether the government may call any witness to testify about the canine alert. In actuality, the Defendant seeks to challenge the reliability of Gerri and the handler, Agent Navarro, so as to prove that Agent Navarro did not have probable cause to continue to detain the passengers nor to conduct a search of the Defendant's suitcase.

A Daubert hearing is the wrong procedural vehicle through which to challenge the reliability of a canine alert. A Daubert hearing presupposes that "the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact issue." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The purpose of a Daubert hearing is to determine whether expert testimony meets the threshold of reliability so that the trier of fact may rely on such testimony to determine a fact issue. An example of a fact issue embraced by Daubert is whether or not a certain chemical caused a plaintiff to develop cancer. In contrast, the purpose of allowing Agent Navarro to testify that Gerri alerted to the black suitcase is not to prove that the chemicals found were actually an illegal narcotic; rather, the testimony is intended to establish that Agent Navarro had an articulable basis for believing that the suitcase contained contraband items and that the owner was involved in illegal activity. It is not a fact issue as contemplated under Daubert. Therefore, a Daubert hearing is not warranted. Instead, the Court will directly address the Defendant's challenge to the reliability of the canine alert.

B. The canine inspection team was trained and reliable for the purpose of establishing probable cause.

At the evidentiary hearing, Agent Navarro described the training procedures that Gerri and he underwent at the United States Border Patrol National Canine Facility located in El Paso, Texas. According to Agent Navarro, canines complete approximately four weeks of training prior to being paired with a handler. Once the canine is paired with a handler, both the handler and the canine undergo an additional two weeks of training as a team. The canine and handler team must then successfully pass a certification test before being placed in the field. Agent Navarro testified that, pursuant to these procedures, he and Gerri received certification for the detection of concealed humans, cocaine and its derivatives, marihuana and its derivatives, heroin and its derivatives and methamphetamine on March 15, 2000. However, Agent Navarro acknowledged that Gerri and he were not certified to detect the presence of PCP, the controlled substance found in the Defendant's suitcase. In addition, as Defendant points out, Agent Navarro lacked specific knowledge regarding the training procedures including the minimum quantity of drug for which the dog is trained to detect, what distractions were used during certification and training searches and whether controlled negative testing was conducted during training that would indicate the number of false positives Gerri had during training.

The Defendant further challenged the reliability of the canine inspection team with testimony from his expert witness Dr. Dan Craig, D.V.M. A central theme of Dr. Craig's testimony was that the reliability of a particular drug dog could be determined only if records of both the dog's training and success and failure rate in the field are maintained. Prior to the evidentiary hearing held before Magistrate Judge Platt on October 3, 2000, Defendant filed a Brady request asking for any training records for Gerri. This request was denied. At the hearing, Agent Navarro testified that he did not keep field records of Gerri's actual success and failure rate, specifically, of the instances of false alerts. Since there were no training or field records to examine, it was Dr. Craig's opinion that it was not possible to establish Gerri' reliability as a drug detection dog. Defendant argues that the government's failure to produce training records and field work record for Gerri and Agent Navarro preclude a finding that the canine alert was reliable. Absent this showing of reliability, the Defendant contends that the alert in this case was insufficient to establish probable cause. The Court disagrees.

1. The reliability of a canine alert may be challenged for the purpose of proving that agents did not probable cause to conduct a search or seizure.

To be clear, in so far as the...