CA6: Turning off dashcam when drug dog arrived “concerning” but not fatal to the dog sniff

CSLI was obtained by a warrant with probable cause defendant was involved in drug dealing, and that’s nexus between the cell phone and the crime. When the car was stopped, there was at least reasonable suspicion and the stop was not unreasonably extended. The officer’s turning off the video when the dog arrived was “concerning” but not fatal to the dog search. United States v. Hunt, 2017 U.S. App. LEXIS 24499 (6th Cir. Dec. 5, 2017):

3. Does the Lack of Dashboard Camera Footage Taint the Canine Search?

As mentioned earlier, Trooper Boven turned off the dashboard camera when Deputy Osbun arrived. The United States Supreme Court has explained that, when assessing probable cause to conduct a search subsequent to a positive canine alert for narcotics, a flexible “totality of the circumstances” test applies. Florida v. Harris, 568 U.S. 237, 244, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013). A defendant must have the opportunity to challenge evidence of the dog’s reliability, however, whether by cross-examination of its handler or by introducing his own fact or expert witnesses. Id. at 247.

Defendant contends that the lack of a visual record of the search undermines his ability to challenge the legitimacy of the canine alert to narcotics. First, there are no records maintained of the dog’s prior performance in the field. Second, Deputy Osbun recalled up to six false alerts at the suppression hearing, which defendant contends is a significant number given that dogs are deployed only when the presence of drugs is suspected. Third, the lack of dashboard camera footage makes it nearly impossible for defendant to challenge whether Deputy Osbun’s interaction with the dog may have influenced its subsequent alert. Finally, defendant characterizes the missing video footage as “spoliation” for which the government must be held responsible.

The district court thought otherwise with respect to spoliation, which “requires something more than failing to capture all the information you would have the ability to capture.” Rather, spoliation contemplates destruction or loss of evidence that has already been created. With respect to Deputy Osbun’s testimony, the district court noted that the deputy testified about how he conducted searches in general and in this case specifically. Defendant had the opportunity to cross-examine Deputy Osbun about his method and thereby challenge the legitimacy of the search.

The missing footage is concerning but not fatal to the search. Harris relies on a commonsense, totality of the circumstances test. As the district court observed, defendant had the opportunity to question Deputy Osbun about his method of conducting canine searches, thereby satisfying Harris, 568 U.S. at 247. In our view, defendant had sufficient opportunity to contest the canine search and it was therefore properly considered in the probable cause determination.