CAUSE NO. D-1-DC-11-''''''''''' STATE OF TEXAS IN THE 147th JUDICIAL. v. DISTRICT COURT OF

Transcription

1 CAUSE NO. D-1-DC-11-''''''''''' STATE OF TEXAS IN THE 147th JUDICIAL v. DISTRICT COURT OF '''''''''''''''''''' ''''''''''''''''''' TRAVIS COUNTY, TEXAS BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE TO THE HONORABLE JUDGE PRESIDING: NOW COMES '''''''''''''''''' ''''''''''''''''''''', Defendant in the above-styled and numbered cause, by and through undersigned counsel, and files Brief in Support of his Motion to Suppress Evidence based on the following: I. RECENT CASELAW ON DRUG-DETECTION DOGS A. Because a dog sniff does not constitute a search within the meaning of the Fourth Amendment, officers do not need reasonable suspicion for a dog sniff to take place. In 1983, the US Supreme Court in United States v. Place, held that a sniff test by a welltrained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment. 462 U.S. 696 (1983). Later, in Illinois v. Caballes, the Supreme Court determined that a dog sniff that gives rise to probable cause to search a vehicle where the dog is well trained and "'does not expose noncontraband items that otherwise would remain hidden from public view,'... during a lawful traffic stop...[and] does not rise to the level of a constitutionally cognizable infringement." 543 U.S. 405 (2005). There, the Court held that a dog sniff is not a search subject to the Fourth Amendment (because it does not compromise any legitimate interest in privacy ), and therefore the officers did not need reasonable suspicion for the dog sniff to take place. Id. at 408 BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 1

2 09 (holding the use of a well-trained narcotics-detection dog... during a lawful traffic stop, generally does not implicate legitimate privacy interests. ). B. Law enforcement may not unreasonably prolong a stop in order to conduct a dog sniff. The Court recognized a seizure that is justified solely by the interest in issuing a warning ticket to the driver may become unlawful if it is prolonged beyond the time reasonably required to complete that mission, but accepted the trial court's conclusion that the detention in that case had not been prolonged beyond the time reasonably required to complete [the officer's] mission. Caballes, 543 U.S. at Thus, although the Court made clear the officers could not prolong the traffic stop unreasonably in order to conduct the sniff, the dog sniff itself did not implicate Fourth Amendment concerns. Id. at 406. Once the purpose of a valid traffic stop has been completed and an officer's initial suspicions have been verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003). C. An alert by a drug-detecting dog provides probable cause to search. The Fifth Circuit has held that an alert by a drug-detecting dog provides probable cause to search. United States v. Dovali Avila, 895 F.2d 206, 207 (5th Cir.1990). D. Although the Fifth Circuit has held that a showing of a dog s training and reliability is not required if probable cause is developed as a result of a dog sniff, the US Supreme Court has recently taken up the issue. In United States v. Williams, the Fifth Circuit held that a showing of the dog's training and reliability is not required if probable cause is developed on site as a result of a dog sniff of a vehicle. 365 F.3d 399, 406 (5 th Cir. 2004); see also United States v. Sanchez Pena, 336 F.3d 431, 444 (5th Cir.2003) (stating that where the evidence indicates that a drug dog has been properly trained and certified, the dog's alert was reliable and established probable cause for a search of the vehicle). BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 2

3 However, a few months ago the US Supreme Court granted certiorari in Florida v. Harris. Florida v. Harris, 132 S.Ct. 1796, 182 L.Ed.2d 615, 80 USLW 3429, 80 USLW 3541, 80 USLW 3545, 81 USLW 3028 (U.S.Fla. Mar 26, 2012) (NO ). There, the Court will consider what evidentiary foundation is needed to show that an alert by a narcotics-detection dog provides an officer a reliable basis for probable cause to search a vehicle. In the lower case, the state court remarked that in dog-sniffing drug cases, the courts often accept the mythic dog with an almost superstitious faith. Harris v. State, 71 So.3d 756, 768 (Fla., 2001). The myth so completely has dominated the judicial psyche in these cases that the courts either assume the reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner. Id. The reliability of the dog is a crucial factor in a Fourth Amendment analysis because not all dogs are well-trained and well-handled, nor are all dogs temperamentally suited to the demands of being a working dog. Some dogs are distractible or suggestible, and may alert improperly. Many factors may lead to an unreliable alert. Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L.Rev. 1, 4 (2006). As pointed out in Harris, coupled with the concern for false alerts is the potential for handler error and handler cuing. Harris, 71 So.3d at Even the best of dogs, with the best-intentioned handler, can respond to subconscious cuing from the handler. If the handler believes that contraband is present, they may unwittingly cue the dog to alert regardless of the actual presence or absence of any contraband. Finally, some handlers may consciously cue their dog to alert to ratify a search they already want to conduct. Id. citing Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L.Rev. 1, 5 (2006). Relying on a stud identifying false alert rates as high as 60 percent, Justice Souter said in his dissent in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005): The infallible dog, however, is a creature of legal fiction... [T]heir supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 3

4 than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times. Caballes, 543 U.S. at (Souter, J., dissenting); see also Richard E. Myers II, Detector Dogs and Probable Cause, 14 GEO. MASON L.REV. 1, 2 (2006) (applying Bayesian analysis to demonstrate that relying on an alert by a properly trained dog as prima facie evidence of the presence of contraband is based on flawed statistical analysis). WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court suppress such matters at trial of this cause, and for such other and further relief in connection therewith that is proper. Respectfully submitted, SUMPTER & GONZÁLEZ, LLP 206 East 9 th Street, Suite 1511 Austin, Texas Telephone: (512) Facsimile: (512) By: David Gonzalez State Bar No david@sg-llp.com ATTORNEY FOR DEFENDANT ''''''''''''''''''' ''''''''''''''''''''' CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Defendant s Brief in Support of Motion to Suppress Evidence has been served upon the District Attorney s Office, via Hand Delivery, this the day of September, BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 4

5 BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 5

6 CAUSE NO. D-1-DC-11-''''''''''' STATE OF TEXAS IN THE 147th JUDICIAL v. DISTRICT COURT OF ''''''''''''''''''''' ''''''''''''''''''''' TRAVIS COUNTY, TEXAS O R D E R On, 2012, came on to be considered Defendant s Motion to Suppress Evidence, and said Motion is hereby: ( GRANTED ) ( DENIED ), to which the defense objects. SIGNED on, JUDGE BROWN BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE Page 6