SUPPLEMENT TO DEFENDANT’S PREVIOUS
MOTION TO SUPPRESS
MOTION IN LIMINE
& FOR MORE DISCOVERY
& NOTICE OF FILING THE DEPOSITION OF THE HCSO SERGEANT
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
1: THE EXPERT (A DOG) IS A NAZI THANKS TO THE WAR ON DRUGS
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
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).
2: THE EXPERT (A DOG) CAUSED AN IMPROPER DETENTION / WAIT
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
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
In United States v. Place, No. 81-1617; 1983.SCT.2434
<http://www.versuslaw.com>, 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.
3: THE EXPERT IS A REAL DOG
(A DOG & HIS BOY: THE IMPROPER USE OF AN UNQUALIFIED ANIMAL)
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 <http://www.versuslaw.com>,
462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110, 51 U.S.L.W. 4844 (June
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
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
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.
CERTIFICATE OF SERVICE
Attorney At Law
P.O. Box 8816
Tampa, FL 33674-8816
On SNIFFER DOGS, DRUG DOGS, NARCO DOGS, POLICE DOGS, DRUG DETECTION
DOGS, BOMB DOGS, EXPLOSIVES DOGS, NARCOTICS DOGS, Training, handling, trainers,