By CHRISTOPHER GOFFARD, Times Staff Writer, St. Petersburg Times see related editorial http://sptimes.com/2003/08/19/Opinion/Sniff_search.shtml
An appeals court throws out a Hillsborough case, saying no evidence was presented to show a drug-sniffing dog's "track record."
TAMPA - Hillsborough sheriff's deputies deployed their drug-detecting dog, Razor, to sniff around the car when they stopped motorist Gary Alan Matheson for a traffic infraction on Hillsborough Avenue.
The German shepherd signaled the presence of drugs, which deputies used as probable cause for the May 1999 search. The search revealed morphine and methamphetamine.
After failing to get the evidence suppressed in court, Matheson pleaded no constest to drug-possession charges. He received probation in 2000.
This week, however, the 2nd District Court of Appeal threw out the case against Matheson, saying the state had not presented any evidence of the dog's "track record" of sniffing out drugs.
The Sheriff's Office acknowledged that it did not keep records of Razor's success rate in the field and that the dog had no training to distinguish between actual drugs and "dead scents" from drugs no longer present.
In its unanimous ruling, the appeals court also noted that Razor had received only five weeks of drug-sniffing training, whereas the Customs Service puts its dogs through a 12-week course and teaches them to disregard residual scents.
The Customs Service requires its dogs to have a perfect record; only half of the dogs complete the program. But the certification program Razor attended requires only 70 percent success.
The court's ruling, which also affects law enforcement in Pinellas County, does not forbid drug searches by dogs or declare them uniformly unreliable. But without better training, the court ruled, Razor should not have automatically been considered reliable enough to give deputies probable cause for the car search.
"However much we dog lovers may tend to anthropomorphize their behavior, the fact is that dogs are not motivated to acquire skills that will assist them in their chosen profession of detecting contraband," wrote Judge Stevan Northcutt.
Local law agencies say it's too early to speculate on the ruling's impact.
Susan Shanahan, the assistant attorney general who is handling the appeal for the state, said the state probably will ask the 2nd District Court of Appeal for a rehearing.
"The opinion's not final, and policies won't necessarily change until that opinion is final," she said.
The case would potentially have far-reaching implications and could influence cases nationwide, Shanahan said.
Some people are already celebrating the ruling.
"It'll change the way they do their training and record-keeping," said Tampa lawyer Rex Curry, Matheson's defense attorney. He argued Matheson's motion to suppress the drug evidence.
Curry said defense lawyers from across the country already are asking him for copies of his suppression motion for use in their own cases involving drug-sniffing dogs.
"The whole defense community's really barking about this," he said.
Hillsborough Sheriff's Office spokesman Lt. Rod Reder said the office will examine the ruling.
"We hope this really can be overturned," Reder said. "We find the dogs to be a very powerful and fair tool in the war on drugs."
In the past year, the 10 dogs the Sheriff's Office uses for drug searches and routine patrol handled 1,595 calls. Of those, 378 were drug searches of houses and cars, Reder said.
St. Petersburg police officials didn't want to comment on the decision, saying they needed time to research its implications.
Deputies in charge of the Pinellas County Sheriff's Office canine unit have been developing a system to track their dogs' success rates, said Detective Tim Goodman, an agency spokesman.
A supplement noting whether the dog was successful during a search goes into each report, Goodman said. Deputies have been working on making a master list to track the performance of the dogs. Goodman said the agency also tracks how the dogs perform in training exercises.
- Times staff writers Chris Tisch and Leanora Minai contributed to this report.- From the St. Petersburg Times. All rights reserved 08/07/2003