N.D.Iowa: Def overcomes presumption of reliability of new drug dog under Florida v. Harris

A USMJ under Florida v. Harris concludes that the defense successfully rebutted the reliability of a drug dog on the job only one month, and the alert based search was held without probable cause. United States v. Acosta, 2019 U.S. Dist. LEXIS 17946, 2019 WL 454247 (N.D. Iowa Feb. 5, 2019). (The opinion is long and detailed and too much for here. The court’s online version of the opinion is not yet online at the GPO website.) It is remarkable because a defendant actually prevailed. The FPD for the defense:

The evidence presented regarding Duke’s certification is less impressive than the evidence presented in Harris. In fact, the Court was offered very little information about MK9. Based on the record before me, I cannot conclude that MK9 is a “bona fide organization.” It may well be, but I was provided with insufficient information to reach that conclusion. See United States v. Diaz, No. 2:16-cr-00055-DCN, 2018 WL 1697386 at *18 (D.S.C. Apr. 6, 2018) (declining to find police dog training and certification center was a bona fide organization when the government provided no evidence about the center’s certification because “to do so would be to abdicate [the court’s] responsibility under Harris to evaluate a dog’s reliability”).

. . .

Harris explicitly permits a defendant to challenge the reliability of a certified dog:

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 (“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”).

Harris, 568 U.S. at 247.

For the reasons discussed below, I find that Defendant has overcome the presumption that Duke’s alert established probable cause for the search.