US v. Hare

• Decision Date: 13 May 1996
• Docket Number: No. 1:95CR174-2.,1:95CR174-2.
• Citation: 932 F. Supp. 852
• Parties: UNITED STATES of America v. William Bruce HARE, John Timothy Majors, and Tamorra Lynn Pinkston.
• Court: U.S. District Court — Eastern District of Texas

932 F. Supp. 852

UNITED STATES of America v. William Bruce HARE, John Timothy Majors, and Tamorra Lynn Pinkston.

No. 1:95CR174-2.

United States District Court, E.D. Texas, Beaumont Division.

May 13, 1996.

Joseph Batte, Assistant United States Attorney, Beaumont, TX, for U.S.

Thomas Burbank, Frank J. Maida & Associates, Beaumont, TX, for William Bruce Hare.

James DeLee, Attorney at Law, Port Arthur, TX, for John Timothy Majors.

Dan Cogdell, Boyd & Cogdell, Houston, TX, for Tamorra Lynn Pinkston.

ORDER

HEARTFIELD, District Judge.

Pending before the court is Defendant Timothy Majors' Request for Additional Discovery of the certificate and kennel papers of the drug alert dog 165 which was used to establish probable cause to open the trunk of Majors' Buick automobile.

Fifth Circuit case law is unclear on the subject of what evidence is required when a dog alert establishes probable cause. One Fifth Circuit case addressed the issue of whether "the training and reliability of a drug dog prior to reliance on a sniff test is required to justify a warrantless search." United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995). A showing of training can be met by producing certification and periodic recertification of the dog's structured training. Proof of reliability involves past performance records, including instances where the dog alerted and whether the alert was accurate positive or false positive. See United States v. Wood, 915 F.Supp. 1126 (D.Kan. 1996). The Williams court found the argument foreclosed by United States v. Daniel, 982 F.2d 146, 151-52 & n. 7 (5th Cir.1993) and held that a showing of the dog's reliability is not necessary if probable cause is developed on site as a result of a dog sniff of a vehicle. However, the holding did not mention anything about the dog's training or certification. Williams, 69 F.3d at 28. The court refused to follow the Sixth Circuit standard requiring a showing of both training and reliability. See United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir.1994) (holding that "to support a determination of probable cause, the training and reliability of the dog must be established."). Thus, Williams explicitly answered only part of its inquiry. Reliability of the dog need not be shown. Williams left unanswered the question of whether proof of the dog's training must be shown.

The case law advocating the use of canines to detect narcotics consistently refers to "trained" dogs. See United States v. Wright, 706 F.Supp. 1268, 1275 (N.D.Tex.1989) citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Therefore, it appears that some showing of training must be made. This does not...