Background:
The following case story synopsizes a successful motion to suppress. Motions to suppress can be difficult to win. However, with effective attorney-expert collaboration and a broad analysis that includes legal, behavioral, and biological/scientific arguments, victory is possible.
The Traffic Stop and Search:
In Texas, a police officer made a traffic stop of a Land Rover, allegedly for tinted windows that exceeded allowable limits. However, the officer failed to fulfill the mission of the traffic stop, even after backup assistance arrived. Instead, the officer began by requesting identification and then removing the driver and his Boston Terrier from the vehicle. He next conducted a prolonged field interview, followed by an exterior K9 search.
During the search, the K9 physically contacted the vehicle with its paws and snout. Moreover, the K9 never sat, the indication behavior required of the dog in all his training runs. Yet, the officer determined the dog detected narcotics, whereupon he allowed the dog inside the vehicle. While inside the vehicle, the K9 stood over a spot in the hatch area of the Rover. The officer interpreted the dog’s behavior as a second alert.
A subsequent interior search by backup officers seized 2 kilos of cocaine. Interestingly, the backup officers located the cocaine within a small bag placed on the rear seat. Officers did not find contraband in the hatch area.
The Motion to Suppress:
The driver’s criminal defense attorney filed a motion to suppress, for which he hired CPT’s expert services. The CPT expert reviewed body and car cam videos of the vehicle search, a video of another search conducted by the same handler/K9 team, 6 months of training logs, pertinent certifications of the handler and dog, and police reports pertaining to the event.
CPT then assisted the attorney in formulating strategy for arguing violations of the driver’s 4th and 14thAmendment rights. The CPT expert also documented training errors from prior to the event, handling errors pertinent to the event, and reasons why the dog’s training program neglected to prepare the K9 for detecting the odor of large quantities of cocaine.
Legal Rationale for a Motion to Suppress:
In his report, the CPT expert cited case law from Terry v. Ohio, Rodriquez v. USA, Illinois v. Caballes, USA v. DiGiovanni, Commonwealth of Kentucky v. Clayborne, Felders v. Malcolm, Idaho v. Dorff, and others. Applying case law, the delay of the traffic stop was not “de minimus.” The officer extended the stop to conduct a criminal investigation upon a hunch. Ignoring traffic violations while performing a lengthy field interview breached precepts ruled upon in Terry, Rodriguez, DiGiovanni, and Clayborne. The officer facilitating his K9’s entry into the driver’s vehicle constituted a warrantless search. The warrantless search violated principles described explicitly in Felders v. Malcom. And the officer allowing his dog to physically contact the vehicle during the exterior search constituted intermeddling and trespass, as described in Dorff, since the search went beyond the allowances for a free-air sniff permitted in Caballes.
The defense attorney appreciated CPT expert Mark Spivak’s knowledge. Mark’s subject expertise saliently extends beyond the knowledge typically possessed by a canine behavioral expert. Moreover, the breadth of Mark’s legal and canine behavioral knowledge facilitated a more thorough and powerful argument for suppressing evidence.
Scientific Rationale:
Upon examining the evidence and conducting pertinent online research, the CPT expert prepared a detailed report. In addition to the legal arguments listed above, Mark’s report included procedural and scientific information that strengthened the motion to suppress. The CPT’s expert’s experience in canine neuroscience and olfactory research proved beneficial. Accordingly, the report included a scientific review of the biological and cognitive process of canine olfaction, optimal training protocols, and scientific explanations for the dog’s failures.
The Hearing:
Mark and the attorney used the report as a foundation for pre-hearing prep. The report was useful for preparing Mark’s forthcoming testimony. Likewise, the report was practical for preparing attorney questioning of State law enforcement and expert witnesses.
Based upon trial prep strategy, Mark planned to testify regarding the biology and psychology of scent detection, verbal cuing by the handler, illegal procedural errors by the handler, and reasons the dog may fail to cognitively recognize field samples as a target odor when the sample differs in packaging, mixture, concentration, degradation, and/or quantity from the sample repeatedly used in training. However, after hearing the constitutional evidence presented by the attorney, the judge halted further testimony. Our motion to suppress proved successful.