E.D.Tex.: Dog’s unproductive alert excluded under F.R.E. 403; dog not challengeable via Daubert motion

The government proved the “well-trained” drug dog by training and certification and general lack of false positives sufficient for probable cause. However, the fact of an alert to a dresser in defendant’s house where no drugs were present is excluded from trial under F.R.E. 403 as more prejudicial than relevant. United States v. Pierre, 2012 U.S. Dist. LEXIS 76411 (E.D. Tex. May 10, 2012):

Here, the Court finds that any testimony about Bartje’s alert on the dresser would confuse the issues and cause Defendant undue prejudice. In this case, the Government must prove that Defendant was involved in the distribution – not merely personal use – of cocaine and marijuana. Based on the testimony presented at the hearing, although Bartje’s alert may have been reliable as an indicator that drugs were once present near the dresser, there is nothing about the alert that would show the amount of drugs that once were there, the amount of time that had passed since they were there, or the kind of drugs present. Any probative value Bartje’s alert might have is outweighed by the risk that the alert was to an amount or type of drug not a part of the charged conspiracy and for a time period not within the charging indictment. Because the alert cannot define the who, what or when — and because there is no possibility of examining or cross-examining Bartje as to the who, what or when of the alert — any testimony about it would confuse the issues and unduly prejudice Defendant.

A Daubert motion is not the way to challenge a dog sniff because a dog is not an expert witness. A motion to suppress is required. n.1:

The Court notes that Defendant has challenged the introduction of the evidence of the canine alert through three different motions: a Daubert motion, a motion in limine and this motion to suppress. As this Court has previously noted, the Fifth Circuit has stated that, “a Daubert hearing is the wrong procedural tool to challenge the reliability of a drug detection dog.” U.S. v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars ($369,980) in U.S. Currency, 214 Fed. Appx. 432, 435, 2007 WL 143240, 3 (5th Cir. 2007); see also U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001). See Dkt. 504. Because the Fifth Circuit has made this express statement, the Court declined to conduct a Daubert analysis as originally requested by Defendant (and ultimately denied by this Court), although factually this case — involving the requested exclusion of essentially a lack of physical evidence — does appear to be one of first impression in this Circuit. In U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001), after rejecting Defendant’s challenges to a canine alert based on Daubert, the District Court instead turned to directly to whether the reliability of the canine inspection at issue. Without any express guidance to the contrary by the Fifth Circuit, the Court will adopt the Outlaw court’s approach herein.