CA11: False drug dog alerts don’t undermine reliability for a probable cause determination; recertification is key

The drug dog’s certification records shows reliability for the sniff. The fact there was an error rate doesn’t undermine probable cause. The dog’s recertification process is more an indicator of reliability than field performance where errors are likely for all dogs. United States v. Trejo, 551 Fed. Appx. 565 (11th Cir. 2014) (note: footnote 6 revised on rehearing 2014 U.S. App. LEXIS 5410 (11th Cir. March 24, 2014):

Here, the training that Trooper Jordan and his canine Barny completed is sufficient to support a presumption that Barny’s alert was reliable absent credible evidence to the contrary. Indeed, Jordan and Barny’s training is quite similar to the training programs the Supreme Court considered in Harris. In Harris, the certification and training program for the initial certification was offered by state police departments and the refresher course was offered by “a private company that specializes in testing and certifying” narcotics detection dogs. Id. at 1054. The Supreme Court discussed both of these programs with approval. Id. at 1058. Here, the original certification course was offered by the Florida Highway Patrol and run by one of the State Troopers. And although Trejo questions the legitimacy of the organizations under whose standards Jordan and Barny were annually recertified, the recertification course was taught by the very same instructor who offered the initial course. That the district court did not declare the certifying organizations-the Florida Highway Patrol, the International Forensic Research Institute, and the National Forensic Science Technology Center-to be “bona fide” in so many words makes no difference. And even if the certifying organizations were not “bona fide” within the meaning of Harris, the evidence clearly established that Barny and Jordan had “recently and successfully completed a training program,” and so the presumption of reliability was permissible absent a timely challenge to the adequacy of the training program.

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As Trejo’s case came to the trial court, Barny had successfully completed drug-detection courses each year for the three years leading up to the search of Trejo’s vehicle and maintained his proficiency through weekly training courses. Such a training record, viewed alone and unchallenged before the trial court, is sufficient to establish a drug detection dog’s reliability. See Harris, 133 S. Ct. at 1058.

Trejo’s cross-examination focusing on Barny’s field performance failed to rebut the government’s case for Barny’s reliability. Cf. id. As the Supreme Court noted in Harris, records of a dog’s field performance in most cases have “relatively limited import.” Id. at 1056. Because of the risk that field data “may markedly overstate a dog’s real false positives,” a dog’s performance in controlled testing environments-where Barny’s performance was exceptional and nearly flawless- is a better measure of a canine’s reliability than field performance. Id. at 1056-57. As a result, even considering the proffered field error rate, the positive alert from a drug detection dog with an excellent training record, coupled with the BOLO indicating that Trejo’s Tahoe was suspected of transporting narcotics, established a “fair probability” that drugs would be found in the vehicle. This is all that probable cause requires. See Virden, 488 F.3d at 1322.