S.D.Cal.: Dog alert shown not reliable in an immigration checkpoint case

“In this case, the Highway 86 checkpoint [at El Centro, CA] is a permanent checkpoint operated solely by Border Patrol agents. During the past three year period, there were approximately 1,746 apprehensions at the checkpoint, including 1,579 immigration-related apprehensions and 167 drug-related apprehensions. The record shows that the primary purpose of the checkpoint is to check for aliens, and all vehicles are stopped. The record shows that the checkpoint is well-identified, and the stop involved minimal intrusion. There is no evidence that the checkpoint was operated for any purpose other than immigration enforcement.” It is not an unconstitutional roadblock. The search of defendant’s trunk, however, is suppressed because the government did not show the dog alert for humans or drugs was positive or reliable. United States v. Summers, 2015 U.S. Dist. LEXIS 170865 (S.D.Cal. Dec. 22, 2015):

The Government did not present evidence to establish that Boeli was trained to distinguish cars with concealed human smell but ignore or differentiate other human smell in the same vehicle. While the Government presented Performance Standard Score Sheets indicating that the team practiced finding concealed humans, Defendant presented evidence that the training records were not reliable and the certifications were not completed by an independent agency.

In this case, Agent Miranda based his determination of probable cause solely upon Boeli’s initial alert behind the trunk as shown on the video. Agent Miranda testified that Boeli indicated interest in Defendant’s vehicle when his body tensed and his demeanor changed. Agent Miranda testified that he continued to search to see if he could get Boeli to pinpoint the source of his interest. Agent Miranda testified that Boeli did not sit at the trunk area and did not back up and bark at the trunk area. Defendant’s expert testified that the initial alert behavior shown on the video is no more than interest behavior and does not indicate that dog has found the odor that he is trained to find. The Government presented no further evidence to rebut or otherwise explain this testimony.

“The question … is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal … evidence of a crime.” Florida, 133 S.Ct. at 1058. In this case, the Court concludes that the Defendant has presented a credible challenge to the alert behavior and the reliability of the dog training by cross examining the testifying officer and by introducing expert testimony. The Court concludes that the Government has not proven that the evidence of Boeli’s behavior at the trunk of Defendant’s vehicle meets the probable cause standard.