W.D.Ark.: Dog alert unreliable because of handler cues and other things and search suppressed

The stop and its continuation was with reasonable suspicion. Ultimately, the dog’s alert was not reliable on the totality. No one factor was enough to find the dog alert unreliable, but collectively they were. The dog was “off his game,” had never dealt with an alert in 90º heat, and the dog on video was unintentionally responding to handler cues. United States v. Heald, 2016 U.S. Dist. LEXIS 24465 (W.D.Ark. Feb. 25, 2016):

Any one of the above factors alone would not be sufficient to render Bosco’s supposed alert unreliable. The mere fact that it was hot out is alone not enough; that Bosco previously only worked in the cool of the night is alone not enough; that the heat admittedly affected Bosco’s performance is alone not enough; that Bosco was often not paying attention is alone not enough; that his supposed alert was not how he was trained to indicate is alone not enough; that Officer Hernandez was off his game and distracted is alone not enough; that he could not readily determine whether Bosco alerted is alone not enough; that he later changed his version of how Bosco alerted is alone not enough; that there was some possibility of unintentional cueing is alone not enough; and that the sniff lasted an abnormally long time is alone not enough. But, taking all of these facts together, and viewing them in the totality of the circumstances, a reasonable person would not think that Bosco’s actions created a reliable alert, such that a search would reveal contraband.

These factors, to be clear, lead the Court to two related conclusions. First, that there is insufficient evidence to conclude that Bosco actually alerted to the presence of narcotics. Second, that even assuming arguendo that Bosco’s jump did constitute an alert, it was not sufficiently reliable to establish probable cause. Accordingly, law enforcement’s subsequent search of Heald’s vehicle violated the Fourth Amendment. The evidence found as a result of that search—including the physical evidence in the vehicle, the evidence later found on Heald’s cell phone, and any incriminating statements made by Heald following the search—must be suppressed pursuant to the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961).

In closing, the social cost of suppressing evidence, and potentially letting a factually guilty person walk free, is not lost on this Court. Nor, however, is the social cost of allowing the police to search a person or his property in violation of the Fourth Amendment. The well-established exclusionary rule settles the constitutional balancing of these social ills. In such cases, the Fourth Amendment must, indeed, prevail.

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