Case #   

DEFENDANT                                                                                                         Division:


    COMES NOW the Defendant, by and through the undersigned attorney, and respectfully submits this supplement to his previous motion to suppress, motion in limine and motion for additional discovery and gives notice of the filing of the deposition of County Sheriff’s Sergeant Mark Patrol.  And as grounds therefore states the following reasons, more fully explained further on:
    1. Discovery shows the dog herein, “Razor” has an unacceptable pattern of errors and that he is not properly trained. And the following discovery still has not been provided to defense counsel: CSO Sergeant Patrol testified in deposition (referred to hereafter as “Patrol depo”) that the following records exist (which defense counsel does not have):
    A. Records showing if Razor has an identifying tatoo and (Patrol depo P 4, L 15)
    B. Records that would help Sergeant Patrol recall when was the last time Sereant Patrol (Razor’s trainer) last has any personal experience with Razor (P 12, L 17).
    C. Records showing the date and details of Razor’s recent medical problems with prostitus, diarrhea, etc., which caused pain to the dog and required medical attention (P 12, L 21).
    D. Records showing why Razor has no activity records at all for an entire month (February 1999) 3 months before the search in this case. (P 13, L 13).
    E. Records showing what drugs Razor was actually certified to detect (P 18, L 24).
    F. Records showing what tests Razor actually performed for OFFICIAL certification (P 19, L 3).
    G. The booklet that the United States Police Canine Association provided to Trainer regarding their testing for Razor (P 24, L 20) which seems to be different from the booklet that the OFFICIAL provided to defense counsel (P 26, L 4 & 13 & 21).
    H. Test sheets that Deputy Handler has OFFICIAL testing of Razor (P 25, L24).
    I. Records showing what tests Razor actually performed for CSO certification (P 40, L 19).

     2. Proper identification procedures are not followed for the dog at issue  (for example, the sheriff’s office did not tatoo this dog nor other of its dogs) and the training “certificate” & records inadequately identify the purported dog simply as “Razor” on the certificate.

    3. Even if a dog alerts to the rear of a vehicle (as here) that does not provide cause to search the glove compartment, as was done here.

    The evidence herein should be suppressed because the war on drugs has inspired the officers’ routine practice (as testified to in deposition by the officers in this case) of asking all people they stop (for any reason) to consent to a car search.  Upon every incorrect response (read that: whenever anyone denies consent to search) everyone in the car is punished by being detained to pursue a search anyway by using a drug dog (in this case a German Shepard named “Razor”).      In Crooks v. State, 710 So.2d 1041 (Fla.  2nd DCA 1998) Judge Altenbernd states in dicta “Deputy Deutsch testified at the suppression hearing that he asks the driver of every car that he stops whether a search may be conducted.  He does not, however, carry consent-to-search forms.  If this deputy is routinely stopping elderly drivers and out-of-state tourists for minor traffic offenses and then requesting to right to search their cars with his dog, there is a larger issue than the one addressed by this opinion.”
    This case is worse than Crooks.  Crooks involved a deputy who routinely rode with his drug dog present in his car, and the deputy would ask every motorist (who could remain in their car) to consent to a “search” using the dog to walk around the exterior of the vehicle. Defendant’s case involves deputies who do not have a dog present, and who are not asking for consent to a drug dog “search,” but are asking every motorist to exit their vehicle in traffic, for a genuine physical search of the interior of their car (even by two or more officers who may be present), including bags, the glove compartment, etc, and detaining motorists to wait for a dog if they refuse.
    Law enforcement invokes the dismal “war on drugs” to justify this behavior. The antidisestablishmentarianism in the war on drugs continues to descend to such shocking behavior in the land of the free and the home of the brave, and specifically in this case.
    At this time, and under these circumstances, it is important to note the officers’ state of mind as soon as they decide to pull someone over: The officers have already decided that they are going to perform a “search” with or without a drug dog.  As soon as the lead officer demands any comrade’s papers, he asks for consent to search, and the question can come in the same breath.  The request for the driver’s license and the search are the same routine now.   That state of mind is important regarding the government’s excuse that drivers are detained for a drug dog “only so long as a it takes an officer to write a traffic ticket.”  Under modern prohibition, the ticket is exiguous and tangential. Every traffic stop is actually and more importantly a “war on drugs” and a potential drug bust. The “War on Drugs” is more accurately dubbed the War on the Bill of Rights and upon all drivers.   The traffic ticket is a potemkin ticket. Writing a ticket is simply sleight of hand to distract or humor judges.      
    According to the officers herein, a surprisingly large percentage of the population consents. Further testimony would probably establish that all of the consent comes without any “consent to search” forms.  Further, there was no video or audio tape made in this case, and that is probably the case 90% of the time (or more) raising a question as to what type of conversation occurs between the officers and drivers who do “consent” (slowly, reluctantly or otherwise).  One theory: “If you don’t consent, then I am going to call a drug dog (and its going to take longer and be worse than if you cooperate now.)”  The internet contains many references to Pat Barber, a former prosecutor in Abilene, Texas, who was so incensed by routine car searches (and by civilian ignorance of their right to refuse) that he erected a roadside billboard reading “Just Say No To Searches.”
    Assuming for the sake of argument that a large percentage of detainees do “consent” to searches, the defendant would argue that (1) the routine use of a drug dog for refusals is unnecessary and (2) police officers should be required to obtain written consent (or have a recording of the conversation) in those cases involving “consent” perhaps with a “search Miranda” advising drivers of their right to refuse (which could also be a part of all “consent to search” forms).
    Further, the defendant would argue that the evidence in this case should be suppressed because (1) the courts should condemn the routine use of dogs upon refusals for routine searches of cars and / or (2) the use of drug dogs after refusals in traffic stops should be allowed by the courts only with additional articulable reasonable suspicion or justification (which did not exist in this case).

    Defendant was detained and forced to wait an improper length of time, in dangerous conditions, for a drug dog to arrive.  This argument needs to be distinguished from the previous argument above which urges suppression regardless of the delay involved, and specifically on the grounds of suppressing a shocking routine practice of trying to search every vehicle for no reason whatsoever, and using drug dogs as a means to that end.  Argument #2 focuses on the detention in waiting for a drug dog.    
    Defendant’s car was stopped at 9 p.m. in a left turn lane in the middle of Hillsborough Avenue in Tampa just west of the Veteran’s expressway.  Defendant was ordered out of his vehicle and forced to stand on a narrow (~ 2 ft.) median in the middle of the road in the dark with traffic whizzing by on both sides of the defendant as he stood the entire time with his vehicle left to block a lane.  When he tried to reenter his vehicle for safety, and inquired if he could do so, he was ordered to stay outside.
    In United States v. Place,  No. 81-1617; 1983.SCT.2434 <>, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110, 51 U.S.L.W. 4844  (June 20, 1983) a 90 minute detention of a suspect’s luggage is sufficient to render the seizure unreasonable.  However Place also stated that the violation can be exacerbated by other conduct of law enforcement at the scene.      The length of detention of Defendant was improper, though probably less than 90 minutes, and was further exacerbated by the conduct of law enforcement at the scene.
    This case shows the charade that law enforcement has made of case law that purports to permit an officer to detain a person for a drug dog search only so long as it takes the officer to write a traffic citation.   All the times that are noted in the written records of police are convenient estimates: The traffic ticket states 9 p.m., the dog search record states 9:30 pm, and the arrest for drugs allegedly found states 9:45.  A 30 or 45 minute wait is too long to write a ticket, and too long to detain someone.
    Further, the deputies at the scene created terrifying conditions and endangered the defendant’s life, all for the unspoken goal - the “war on drugs” -not for a traffic ticket.  Although the time element is probably less than 90 minutes for Defendant, Defendant urges that the time element is irrelevant in his case, and that no time period should be tolerated in this case due to the life threatening conditions created by the officers involved.
    And there is another issue at work here: There is an incentive for law enforcement to create and / or maintain every danger, delay and inconvenience that arises in these charades because it has the additional effect of coercing motorists to give up their rights and consent to a search if for no other reason than fear of losing their lives.  

    Case law reveals that the investigative procedure of subjecting luggage to a “sniff test” by a well trained narcotics detection dog does not constitute a “search.” (emphasis added)  United States v. Place,  No. 81-1617; 1983.SCT.2434 <>, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110, 51 U.S.L.W. 4844  (June 20, 1983).  
    The dog in this case was not a well trained narcotics detection dog, and there are other reasons why the search was conducted in an improper fashion:
    A. The dog’s accuracy cannot be established by records in order to justify the search herein. Or if the dog’s accuracy can be determined, then the dog’s false positive rate is too high to provide a basis for a search.
    The dog’s certification is not credible.  The certificates of training (attached hereto) purport to certify a dog that is identified on the certificate only as “razor.”  The certificates do not bear any photograph of the dog, do not attempt to even describe the dog or its breed, and do not refer to any tatoo or other identifying method for the dog.  The certificates do not list any drugs for which the dog is supposed to be “certified.”  The Sheriff’s office does not routinely tatoo their dogs (Trainer depo P 4, L 15), and does not use any credible method for independent identification of its dogs.  The “certificate” and the process it represents is so crude and unprofessional that it proves the dog is not properly certified or trained.  There is not even any professional attempt made for verifying that the dog represented to the court as “razor” today, is the same dog that was on the street on the date herein, or even the same dog referred to years ago in the training “certificates” as “razor.”  
    B. The drug dog in this case was handled under conditions that were unacceptably dangerous, uncontrolled, and inherently unreliable.  The dog was used in the middle of Hillsborough Avenue at night with cars whizzing by in both directions.   The dog incorrectly pawed the rear of the vehicle, and the only substance the handler believed had been found upon which the dog would paw was “chips & crumbs” 10 feet away in a plastic bag in the glove compartment.  Because the dog incorrectly pawed at the rear of the vehicle, supposedly because of “chips & crumbs” of contraband 10 feet away in a plastic bag in a glove compartment, then the dog could have been pawing due to any car driving by that emitted any odor of any contraband, or any odor of any contraband that might have been left by the road next to, or under, the defendant’s vehicle.
    C. The handler and arresting officers believed that the substance found afer the dog search was cocaine, however  tests revealed that the “cocaine” was allegedly methampetamine.   The dog is not trained to provide different alerts for different drugs.
    D. The dog has been trained on “pseudo drugs” which are not illegal, and thus the dog will alert on “pseudo drugs” and substances used to make pseudo drugs, which are not illegal.

    E. The dog has been trained to alert to substances that often have Methyl Benzoate in them, and Methyl Benzoate is not illegal.
    F. The dog will alert to drugs on money and money is inherently unreliable to provide evidence of probable cause due to the extensive transmission of contraband odors on American currency.  In this case, $300 dollars in cash was present.
    G. The drug dog herein (and all drug dogs) should not be considered an independent basis to search, at least without other corroborating evidence. All dogs are inherently unreliable, so much so that their handlers try to constantly re-train and practice the dogs in an effort to suppress their natural unreliability.
     All dogs are inherently unreliable and should not be considered an independent source of basis for search.
    In rejecting the testimony regarding the use of the drug dog in this case, the court should consider rejecting the use of drug dogs in all cases.   The use of drug dogs in Court is based on a fiction. It is based on the fiction that the dog is trying to “tell” the handler that drugs are present and that the handler can understand what the dog is “saying.”  On the contrary, the handler is simply hoping that the dog will react with stimulus / response behavior that the handler has tried to coax from the dog, and that the handler must constantly try to re-coax from the dog with repetitive attempts at training.  The dogs don’t know what they are “doing,” nor what they are “saying.”  
    Drug dogs are on the same mental level as dogs that sniff and urinate on every bush and pole repeatedly, that go berserk around a female dogs, and  that chase fake rabbits around Derby Lane.
    The many problems in training drug dogs suggest a very good reason why many dog handlers (including Razor’s keepers) do not keep scientifically coherent documentation or videotapes of their dog’s track record in the field  -because it would not be helpful at all.  
    Worse yet, Defendant’s case involves “chips & crumbs” of alleged methamphetamine found in a glove compartment after the dog allegedly “alerted” to the rear of the suspect vehicle. (It is distasteful to use the term “alert” which is a euphemistic fiction designed to give these dogs unwarranted credibility).   
    In Defendant’s case, an “alert” is created when the trainer plays with his dog with a rolled up towel in an effort to “reward” the dog (make the dog “happy” -whatever that means in the electrical chaos of a dogs so-called “mind”).  That is all done in the presence of drugs under circumstances where the dog trainer hopes the dog will develop a behavior that the trainer will be able to see and interpret as evidence that drugs are nearby -all on the theory that the dog will respond predictably in order to be rewarded by “happily playing” with a rolled up towel.
    Some trainers have avoided using tennis balls as a dog’s toy because any time a dog  sees or detects a tennis ball (e.g. in a suspect’s car) the dog will paw.   The same problem would arguably exist with the  towel in this case, and anything that would look or smell like the rolled up towel in or around the defendant’s car.      
    The dog in this case can supposedly paw for contraband, yet a big problem is that the dog uses the same pawing for every marijuana, methamphetamine, cocaine, heroin, or relevant type of contraband. The dog cannot distinguish substances or signals.  And the “signal” the dog uses is simply pawing -as if it wants to get at something (a towel, a ball, a bone, the smell of food).  It is a completely unremarkable behavior exhibited by all dogs everywhere.
    Based on the foregoing, the defendant asks the Court to grant his previously filed motion to suppress, motion in limine and motion for additional discovery.

Rex Curry
Attorney At Law
P.O. Box 8816
Tampa, FL 33674-8816
813 238-5371