PLEASE R IS E . PLEASE BE S EA TE D .

THE LAST C ASE O N T HI S MORNING'S DOCKET IS S TATE O F FLORIDA VERSUS MAT HESO N. THE P ARTIES ARE READY ?

YES, YOUR HONOR .

MISS SHA NAHA N , YOU MAY PROCEED.

THANK YOU . CHIEF J US TI CE P AINT. GOOD MORNING. MAY IT PLEASE THE COURT , M Y NAME IS SUSAN S HANA HA N F OR THE STATE OF FLORIDA. THE R ESPONDENT IN THIS CASE WAS STOED FOR A TRAFFIC INFRACTION. UPON BEING STO ED , THE CANINE UNIT WAS CALLED.

COUNSEL, YOU H AVE A V ER Y SOFT A ND D ISTI NC T V OI CE , B UT WOULD YOU RAISE T HAT UP JUST A LITTLE BIT?

ABSOLUTELY , YOUR HONOR. IS THAT BETTER? THE R ESPONDENT IN THIS C AS E WAS STOED FOR A TRAFFIC INFRACTION. UPON BEING STOED, A SAY N INE UNIT WAS CAL LE D CONSISTING OF H IL LS BO ROUG H OFFICER DEP UT Y G RE CO A S WEL L AS HIS C AN INE OFF ICER , W HICH WAS THE DOG R AZ OR.

LET M E JUS T STO P Y OU THERE AS FAR A S A F EW F AC TS . THE DEFENSE IN THIS C AS E IS NOT T AKING ISSUE W ITH WHETHER OR NOT A DOG S NI FFED THE SEARCH, W HICH I S THE ISSUE IN FRONT OF THE SUPREME COURT.

THAT IS CORRECT.

OR THAT THE DET EN TI ON W AS UNDUALLY L ENGT HE N - - UND UL Y LENGTHENED SO T HE EVIDE NC E COULD COME IN.

THAT IS CORRECT.

THE SOLE ISSUE I S W HETHER OR NOT RAZOR, THE D OG , W AS VERY SHARP ON THAT DAY.

THAT'S C ORRECT. WHETHER HE W AS --

I HAD TO G ET T HA T O UT.

THAT'S C ORRECT AND HE WAS , BY THE WAY. NO , Y OU - - THA T I S CORRE CT . HE DID ALERT T O T HI S V EHIC LE A ND UPON ALERTIN G , T HE VEHICLE WAS SEARCHED AND THEY DID FIND METHAMPHETAMINE, MOR PH INE AND HYDRO C OMPA NY D ON BIL LS . THEY ALSO FOUND E VIDE NCE O F DRUG PARAPHERNALIA.

AS I'M UND ERST ANDING THE STATE'S C ONTE NT IO N I T I S THAT IF T HE STA TE P RESE NTS EVIDENCE THAT IS DOG HAS BEE N CER TIFI ED T HE N T HA T ITSELF IS S UFFICIENT T O ESTABLISH PROBABLE CAUSE?

THE STATE'S POS IT ION I S THAT IF THE DOG I S P RO PE RL Y TRAINED A ND C ER TIFI ED .

NOW, IF Y OU G ET INT O T HAT IT HAS TO S HO W P RO PERLY TRAINED BECAUSE I KNOW SOME OF OUR EARLIER CAS ES W HERE BEFORE THE CERTIFICATIONS CAME IN , THEN W OU LDN' T Y OU IN TERMS O F T HE A CTUA L PRELIMINARY SHOWING , HAV E T O S HOW MORE T HAN JUS T T HAT THEY HAD THESE CERTIFICATIONS. YOU'D HAVE TO SHOW WHAT THE TRAINING WAS THAT THE DOG WENT THROUGH?

THE STATE W OULD S UB MIT THAT ONCE T HE S TA TE H AS SHOWN THAT THE DOG IS TRAINED A ND CER TIFI ED - -

B UT T HE RE I S , AGAIN, CERTIFICATION IS A PIECE OF PAPER. TRAINING IS A N I SSUE A BOUT WHAT A ND PROPE RLY T RA INED IS WHAT YOU SAID.

YES.

PROPER I MP LI ES SOM E DEGREE OF Q UALI TATI VE A NALYSIS, S O D OE S T HE S TATE HAVE TO GO, IN OTHER WORDS, SHOULD THE S TATE H AV E T O PRODUCE THE REC ORDS FOR THEIR P RIMA F ACIE C ASE , THE R ECORDS OF HOW THE T RAIN IN G WENT, WHETHER THE DOG WAS A 70% DOG OR 1 00 % D OG L IK E THE C USTOMS D OG S B EF OR E THE Y M AKE PRO BABL E -- ARE A BL E T O E STABLISH PROBABLE CAUSE?

THE STATE WOULD SUB MI T THAT THERE IS A PRESUMPTION WITHOUT THOSE RECORDS.

BUT I CAN UND ERSTAND CERTIFICATION, I JUS T W AN T TO MAKE S URE , HOW D O YOU G ET TO A PRESUMPTION OF P RO PER TRAINING JUST BY THE S TA TE SAYING T HE D OG I S P RO PE RL Y TRAINED?

I WOULD SUBMIT B Y T HE OFFICER, THE ACTUAL H AN DL ER OF THE DOG , T ESTI FY ING T HAT THE DOG HAS BEEN TRAIN ED AND W OU LD GIVE A PRE SU MPTION OF TRAINING AND T HEN --

DOES T HE TRA IN IN G A ND -- DON'T YOU HAVE TO BE TRA IN ED TO BE CERTI FIED ? I MEAN, I JUS T WON DE RED I F THERE IS A R EA L D IF FERE NC E HERE AND THE N YOU H AV E A D OG T HAT'S JUST T RA IN ED A ND O NE THAT'S JUST CERTIFIED WITHOUT HAVING HAD ANY TRAINING?

ABSOLUTELY NOT AND T HERE IS ACTUALLY NO REQUIREMENT THAT THE DOG BE CER TI FIED. THAT IS S OMETHING THAT THE LAW ENF OR CEME NT AGE NC IES LIKE TO DO BECAUSE I T I S A N INDEPENDENT AGENCY THAT WILLCOME IN A ND CERTIFY T HE IR DOGS FOR THEM.

DON'T YOU HAVE TO GO BEHIND, THOUGH , J UST THE W ORD C ER TI FI CATION, ALL RIGHT, BECAUSE THA T C AN M EA N DIFFERENT THINGS I N DIFFERENT CONTEXT AND T HAT IS DON 'T Y OU N EE D T O A T LEA ST HAV E E VIDE NC E THA T HERE'S WHAT CERTI FI CA TI ON MEANS? SOME OF YOU ARE G OING TO RELY ON THE C ERTI FICATI ON , ALL RIGHT, AND THAT IS T HAT THE C ERTIFICA TION IS D ONE B Y A PAR TICULAR BOD Y T HA T'S R ECOGNIZED AND F OR THA T B OD Y TO C ERTIFY THE DOG T O D O THIS KIND O F W OR K , T HE H ANDLERS OR THE M EMBERS OF THE C ERTI FICATI ON B OD Y WOULD HAVE TO H AV E E VI DE NCE T HA T T HE DOG HAS H AD C ER TAIN T RAINING , AND H AS P AS SE D CERTAIN S TA NDAR DS B EC AUSE O THERWISE C ER TI FI CA TION WOULD HAVE NO MEANING , OT HE R THAN THE FAC T YOU C OU LD H AV E C ERTIFICATION, I SUOSE, B Y SAYING, WELL , YOU KNO W , W E THINK A PAR TI CU LAR B REED OF DOG LIKE GERMA N SHE PHER DS ARE REAL GOOD AT THI S W OR K , AND S O I F I T I S A N IC E D OG AND IT IS A G ER MA N S HEPA RD WE ARE GOING T O SHE RT FI. S OME GRO UPS MIGHT D O THA T. ON THE OTHER HAND, YOU MIGHT HAVE A C ER TI FI CATION P RO CESS WHERE IT IS VER Y , V ER Y RIGOROUS, AND , IN FAC T , Y OU KNOW, WHAT IT MEANS THE DOG HAD TO BE T RA IN ED AND P AR T OF THE TRAINING E NDED U P BEING T HA T T HEY H AD T O SCO RE , YOU KNOW, O N 9 9 OUT O F 100 OORTUNITIES THEY HAD ONC E THEY HAD T HE T RA IN IN G , S O WHAT DO W E K NO W A BO UT C ERTIFICATION IN THI S REC ORD? THAT IS, WHAT DO W E KNO W THE STA NDARDS WERE B EF OR E THIS DOG WAS , Q UOTE , C ERTI FI ED ; IS THAT RIGHT?

HE WAS CERTIFIED.

CERTIFIED BY W HA T B ODY AND WHAT DO W E K NO W T HA T CERTIFICA TION ENTAILED?

THERE WAS A N I NITI AL STATE C ERTIFICATION IN OCTOBER OF ' 97 A FT ER H IS INITIAL TRAINING . THERE IS NO EVIDENCE IN THE RECORD A S TO WHAT THA T C ER TIFI CATION MEANT.HOWEVER, HE WAS THEN CERTIFIED BY THE UNITED STATES POLICE C ANIN E ASSOCIATION.THIS IS AN INDEPENDENTAGENCY, AND THA T T OO K P LACE JUNE OF ' 98 A ND H E W AS CERTIFIED ON THREE SUBSTANCES AND IT IS VERY CLEAR IN THE RECORD B Y T HE TES TIMONY OF THE HANDLER AS WEL L A S T HE P ROCE DURE S FOR THAT C ERTI FICA TI ON P ROGRAM ARE IN THE REC OR D O N A EAL , A ND IT SHO WS T HAT T HE DOG S HAVE T O S CORE C ER TAIN P ERCENTAGE IN ORDER TO B E CERTIFIED . THEY ARE RUN THR OU GH F IV E V EHICLES, A FEW OF T HOSE VEHICLES IN THIS CASE I THINK THREE O F THEM OR T WO OF THEM WERE B LANK . THE OTH ER S CON TA IN ED NARCOTICS.

LET ME MAKE SURE A BOUT THESE BECAUSE I KNO W THERE IS AN ISSUE ABOUT THI S RECORD. THERE WERE, B ECAU SE T HE SECOND DISTRICT SAID T HA T THERE WERE NO RECORDS AT A LL , AND YOU'VE SHOWN T HA T T HERE WERE FIELD RECORDS AND T HEY WERE T ALKI NG FIE LD R ECOR DS . BUT AS FAR AS T HE RECORDS O F WHAT THE CERTI FI CA TION I S , T HERE WAS A D EP OS IT IO N B UT THE D EPOSITION WAS N EVER P UT INTO EVIDENCE , S O CAN W E R EALLY CONSIDER T HA T A S BEFORE THIS COURT?

YES. I WOULD A RGUE THAT Y OU COULD. IT WAS F ILED A CTUA LL Y B Y T HE RESPONDENT HIMSELF IN H IS MOTION, SO IT WAS BEF OR E T HE TRIAL COURT THA T - - THE DEP OSITIONS WERE AND N OT JUST THE TESTIMONY BUT T HEY HAD THE RECORDS OF THE CERTIFICATION THAT ARE ALSO CONTAINED IN THE RECORD ON AEAL AND NOT JUST HIS FIELD A CTIVITY REPORTS. ALL OF HIS T RAININ G R ECORDS ARE CONTAINED IN THE RECOR D ON AEAL.

NOW, GETTING BACK TO T HE ISSUE AND I DON'T WANT TO - - I WANT TO MAKE SUR E Y OU EXPLAIN WHAT ALL OF THIS IS , BUT I'M TRYING TO G ET T O WHAT THE RULE OF LAW W OU LD BE . T HERE IS O NE LEV EL O F S AY IN G THAT IN A SEARCH WARRA NT , FOR E XAMPLE , THE DOG WAS P ROPERLY T RAIN ED A ND CERTIFIED AND THAT'S WHAT THE MAGISTRATE K NOWS A ND T HAT'S T HE J UD GE A ND A WARRANT IS ISS UED , BUT I S I T ENO UGH , L ET'S J US T ASS UM E HERE THAT T HE S TA TE S AY S THAT HE WAS PRO PE RLY TRA INED AND CERTIFIED , D OE SN'T EXPLAIN WHAT THE TRAININ G WAS FOR THE CERTIFICATION . IS T HAT STI LL E NOUGH AS FA R AS THE RULE O F LAW T HA T H AS -- ALL THE STATE H AS T O D O IS THAT, O R DOE S T HE S TA TE ALSO HAVE T O PUT O N W HA T T HE TYPE OF TRAINING AND C ERTIFICATION WAS SO THAT THE JUDGE HAS THA T B EFOR E THE P RIMA FACIE C AS E F OR P ROBABLE CAUSE IS MET?

IF THE D OG 'S REL IA BI LITY IS BEING CHALLEN GED A S I T I S HERE, THEN THE STATE W OU LD SUBMIT, YES , THESE TRAIN IN G RECORDS AND CER TIFI CA TION ARE PROBA TIVE A S T O WHETHER --

SO I T WOULD B E INC UMBE NT ON THE STATE T O D O THA T. IF THE DEF EN SE S AY S I 'M GOING TO BE CHALL EN GI NG T HI S , THEN IT I S N OT U P T O T HE DEFENDANT TO TRY TO GET ALL OF THESE RECORDS. YOU WOULD AGREE THAT THE STATE NEEDS TO BE AFF IR MATIVELY E XP LA INING WHAT THE C ER TI FICA TION AND T RAINING CONSISTED OF?

NO, THE STATE 'S P OSITION WOULD BE THAT THERE IS A PRESUMPTION B Y - - D EFEN SE JUST MAKES A BLA NK ET STATEMENT THE DOG IS NOT RELIABLE WITHOUT MORE. IT WOULD B E THE S TATE 'S POSITION THAT BY SAYING THE DOG IS PROPERLY T RA INED AND CERTIFIED THAT'S A PRESUMPTION.IT CAN THEN B E REBUTTE D AND THEN IT WOULD BE T HE DEFENDANT'S BURDEN TO R EBUT THAT PRESUMPTION.

YOU ARE SAYING ALO NE THA T JUST A STATE T HA T T HE DOG I S THEN P ROPERLY TRA INED WHICH , AGAIN, THERE ARE S IT UATI ON S WHERE A D OG I S T RAIN ED A ND NOT C ER TIFI ED A ND THOSE ARE THE O NES WHERE A T L EAST I N THE LAW REV IE W A RTIC LE T HE Y SUGGESTED THAT THE DOG HAS NOT BEEN CERTIFIED , T HAT THERE NOT BE A P RESUMP TI ON OF R ELIABILITY. ARE YOU AWARE OF THAT?

YES.

S O I F T HE Y A RE CER TI FIED THEN YOU SAY THAT S HO ULD B E E NOUGH. IT I S I NC UMBENT ON T HE DEFENDANT TO HAVE TO REQ UEST THE R ECORDS AND PUT ALL O F THAT ON?

YES.

LET ME ASK A Q UEST ION , BECAUSE TYP ICALLY E VE N AFT ER CERTIFICATION IN ORDER T O M AINTAIN COM PETE NC E I N T HE DOG IS FROM MY U NDER ST AN DI NG OF WHEN I USED TO HEA R T HE SE THINGS I WOULD ALSO REC EI VE TESTIMONY OF THE CON TI NUIN G EDUCATION OF THE DOG O R M AINTAINING THE D OG T O PROPER STANDAR DS THAT E VE N AFTER CER TIFICATION THERE I S AN UNDERSTANDING THAT THERE IS A R EGUL AR P RO CE SS T O K EE P THE DOG 'S S KILL S AT A N AROPRIATE LEVEL.

VERY MUCH SO, AND THA T' S EVIDENT IN THIS CAS E.

BUT Y OU A GREE T HA T THA T , IN ADDITION TO THE RECEIPT OF THE C ERTI FI CATI ON , D O Y OU AGREE OR SDPRE THAT THE STATE WOULD ALSO HAVE T O ESTABLISH A POST CERTIFICATION, THE D OG 'S TRAINING, ABSENT S TI PULATI ON BY T HE DEFENDANT THAT THE DOG'S T RAINING POS T CERTIFICATION WAS AROPRIATE?

YES, YES.

HOW O FTEN D OE S C ERTIFICATION OCCUR? IS IT A YEA RL Y T HI NG?

IN M OS T I NS TANCES IT I S AND RAZOR WAS CER TIFI ED THREE TIMES, ONCE WAS A STATE CERTIFICATION AND THEN AGAIN IN JUNE OF '98 B Y T HE UNITED STATES P OL IC E C ANIN E ASSOCIATION AND AGAIN IN FEBRUARY OF 2000.

THA T WAS A FT ER - - FEBRUARY 2000 W AS A FTER THE SEARCH?

YES, I T WAS.

S O F RO M THE D AT E O F T HE T RAINING, THE C ERTI FICA TI ON , WHAT IS I N THE REC ORD A BOUT CONTINUING --

EDU CA TI ON?

TRAIN ING .

T HE C DE ?

R AZOR C ON TINUAL LY A ND A LL OF THE DOGS W ITH ALL OF T HE VARIOUS LAW ENFORCEMENT AGENCIES IN THIS S TATE CONTINUALLY TRAIN A S JUSTICE BELL POINTED OUT WITH THE IR HANDL ERS W EE KL Y . > > NOW , ARE Y OU S AY ING THEN I WANTED TO MAKE S UR E BECAUSE IT MATTERS IN T ERMS OF HOW T HI S O PI NI ON E ND S U P GETTING WRITTEN I F WE AGREE WITH YOU PARTI ALLY O R TOTALLY THAT THE EVIDENCE OF CONTINUING TRAINING SHOULD BE PART OF T HE S TATE'S BURDEN TO E ST AB LISH T HA T I N THEIR CASE I N C HIEF ?

I WOU LD S AY A FT ER T HE INITIAL PRESUMPTION IS REBUTTED THAT T HEN I T BECOMES THE STATE'S BURDEN TO SHOW THA T T HE T RAIN ING PROTO COLS --

R EBUT TE D B Y W HA T W OULD THE DEF EN DA NT H AVE T O S HO W?

THAT THE DOG WAS NOT PROPERLY TRAINED.

IT S EEMS T HA T ONE REQUIRES THE DEFENDANT T O D O A WHOLE LOT OF DIS CO VERY AND IN THI S C AS E , YOU K NO W , BRI NG ON WIT NE SSES AND ALL OF THAT WHEREAS THE OTHER WOULD BE THAT THE STATE W HO H AS T HI S I NF ORMA TI ON I F I T IS BEING C HA LL EN GE D W OU LD PRESENT AS PART OF THE C ASE IN CHIEF. WHY ISN'T THAT SORT OF A BETTER PRACTICE? BECAUSE, YOU KNOW , I T HINK WE'VE GONE FROM A S ITUA TION WHERE MAYBE FOR THE FIRST 2 0 YEARS OF D OG S IT UA TION S , PEOPLE KIND OF ACCEPTED T HAT T HEY W ERE L IA BL E AND MAYBE THEY WILL GO BACK TO ACCEPTING IT BUT AT LEAST WE ARE IN A S TAGE NOW W HE RE THERE IS S OM E Q UEST IO N ABO UT ALL DOGS A RE E QUAL A S FA R A S T HEIR TRA INING AND , Y OU K NOW , AGAIN YOU'VE GOT THE CUSTOM SERVICE THAT REQ UI RES 1 00 % A CCURACY VERSU S , I GUE SS , THE C ERTI FICATION B Y THE - - THE C AN INE A SSOCIA TION WHICH ONLY REQUIRES 70% A CC URAC Y. SO WHY ISN'T IT A GOOD I DE A T O NOT R EQ UIRE T HE STA TE ONCE C HALLENGED TO HAVE T O PUT THAT EVIDENCE ON?

I WOULD SAY THA T O NC E O N A C HALLENGE THE S TA TE W OULD THEN BE THE S TA TE 'S BUR DE N.

THE CHALLENGE OF S AY IN G , I AM GOING TO BE C ONTEST IN G P ROBABLE CAUSE B EC AU SE I , YOU KNOW, ESPEC IA LL Y H ER E , BECAUSE THE DOG A LE RTED T O SOM ETHING THAT THE D OG WASN'T C ERTI FIED I N , WHI CH WAS T HE M ET H AND T HE O THER SUBST ANCES , H E D IDN' T A LERT TO, BUT --

HE WAS TRA INED IN M ET H. HE HAD N OT Y ET BEE N CERTIFIED, YES.

HE WAS N' T CERTIFI ED S O WHY SHOULDN'T THEY HAV E T O DO MORE BEFORE THE BURDEN WOULD S HIFT?

IT IS THE IR M OTIO N T O SURESS, A ND THEY WAN TED T O KEEP -- THEY A RE CHALL ENGI NG THE DOG 'S RELIA BILI TY.

SO IT IS THE S TA TE 'S BURDEN TO E ST AB LISH P ROBABL E CAUSE?

YES, YES .

I THINK THA T W HETHER I T IS YOU PUTTING ON F IR ST O R SECOND, Y OU S EE M T O A GR EE THAT ALL OF T HE TRAINING RECORDS SHOULD BE DISCOVERABLE AND ADMISSIBLE.

YES.

NOW, LET 'S G ET T O THE AREA WHERE I G UE SS Y OU S EE THE CONFLICT OR T HE P ROBLEM WITH THE S EC OND D IS TRIC T AND THAT IS THE F IELD REP OR T . IS IT YOU R CON TENT IO N THAT THOSE FIELD REP ORTS ARE ABSOLUTELY NOT RELEV AN T A T A LL OR J UST THA T T HA T SHOULDN'T HAVE TO BE PART O F YOUR CASE IN CHIEF ?

WELL, I WOULD SUB MIT T HA T THEY ARE NOT RELEV ANT AT A LL AND JUST RECENTL Y THE RE IS A CASE OUT OF O HIO , O HI O VERSUS W IN N WHE RE THE COU RT OF A EALS F OUND THA T T HESE FIELD ACT IVITY REPOR TS O R THE TRACK RECORD IN THE FIELD ARE NOT E VEN DISCOVERABLE B Y THE DEF ENSE THAT ONLY P ROBATI VE R EC ORDS ARE THE DOG'S TRA IN IN G RECORDS AND HIS CERTIFICATION RECORDS.THE STATE W OULD SUBMIT THAT THAT IS NOT BEFORE THIS COURT WHETHER THEY ARE DISCOVERABLE.

WELL , WHY WOU LD WE ACC EP T THAT POSITION? I WOULD THINK T HAT IN THE TRAINING RECORDS Y OU W OU LD HAVE INFORMA TI ON A BO UT THE DOG 'S ABILITY TO ALE RT A ND WHETHER OR NOT THE DOG H AD THE ABILITY T O ALE RT FOR RES IDUAL M AT TERS AND T HA T KIND OF THING SO IF , IN F AC T , THE TRAINING RECORD DIDN'T HAVE THAT KIND OF INFORMATION AND THEN YOU HAVE FIELD R EC OR DS WHI CH SHO W THAT T HI S D OG A LE RTED ONLY 1 50 % A CC URAC Y , W OULD N' T T HA T - - ONL Y 5 0% A CC URAC Y , WOU LDN'T THAT BE R EL EV AN T A S TO WHETHER OR NOT THIS DOG REALLY HAD THE A BILI TY T O ALERT FOR R ESID UA L MAT TE RS ?

NO, BECAUSE Y OU C AN NO T DETERMINE A FALSE ALERT IN THE FIELD AND THAT IS W HERE THE SECOND DIS TRICT C OURT O F AEAL HAS M IS S CON ST RU ED .

WHY W OULDN'T THAT B E RELEVANT TO ANYBODY THA T H AS TO MAKE A D EC ISIO N , Y OU K NOW , ABOUT WHETHER PROBA BLE C AU SE WAS EST ABLI SHED IN A PARTICULAR CASE? WE KNOW T HA T I N P OLIC E AGE NCIES T HA T T HE RE A RE S OM E DOGS THAT GET THE M ED AL O F HONOR, AND, YOU KNOW , THE Y J UST - - E VE RY BO DY WANTS T HA T DOG IN THE C ANINE D IVIS IO N OR WHATEVER, AND THERE ARE OTHER D OG S T HA T HAV E A DIFFERENT, YOU KNOW , TRA CK RECORD, A ND M AY , Y OU K NOW , BE LESS FAV OR ED . SO I'M H AVIN G DIF FI CULT Y O F WHY THAT I NF OR MA TION WOULDN'T BE DISCO VE RA BLE SO THAT W E K NO W WH ETHER OR NOT , YOU KNOW, THAT'S T HE DOG THAT HAS A SPOTTY TRA CK R ECORD OR IT I S T HE MEDAL O F HONOR W IN NER.

SURE, IT MAY B E DISCOVERABLE BUT IT IS NOT PROBATIVE AS TO PROBABLE CAUSE AND THE REASON IT IS NOT P ROBATIVE IS BECAUSE Y OU DON'T KNOW WHAT A FALSE ALERT IN THE FIELD IS. THE REASON IS: I F THE DEFENDANT IS A DRIVER OF A VEHICLE AND HE HAS DRUGS ON HIM, HE GET S O UT OF T HE CAR AFTER T HE DOG HAS A LERT ED , THEY DON'T F IND D RUGS - -

WHO DET ER MINE S P ROBA BLE CAUSE ON A MOTION T O S URESS H EARING ?

WHO D ET ER MINE S PRO BA BLE CAUSE? THE TRIER OF FACT. > > S O WHY S HO UL DN'T T HE TRIER O F FACT T HA T H AS T HI S HEAVY R ESPONS IB IL IT Y B E AWARE O F ALL R EL EV AN T CIRCUMSTANCES BEF OR E MAK IN G THAT DETERMINATION? YOU SEEM TO B E S UGGE ST IN G THAT T HE O NE T HA T H AS THA T RESPONS IBILITY THAT THERE I S THE INFORMATION THAT SHE REALLY, YOU ARE GOING TO TELL H ER I S N OT R EL EV AN T T O HER A NALY SI S W HE N SHE THI NK S IT WOULD B E R EL EVAN T T O H ER ANALYSIS I N MAK IN G T HIS INDIVIDUAL DECISION EVERY TIME AS TO WHETHER OR NOT THERE WAS P ROBABLE CAUSE.

THE S TA TE I S N OT SUGGESTING THAT THEY ARE NOT DISCOVERABLE. THESE RECORDS MAY BE DISCOVERABLE. WHAT THE STATE IS S UG GESTIN G IS THAT Y OU CANNOT D ETERMINE A D OG'S R EL IABI LI TY B Y T HESE FIELD REPORTS.

I THOUGHT YOU W ER E -- T HAT, AND T HIS I S I MPOR TA NT , IT MAY NOT HAVE T O B E PART OF YOUR CASE I N CHI EF , BUT I F YOU H AV E A D OG THA T A LERTS E VERY T IME I N T HE FIELD AND DRUGS A RE ONL Y F OUND 2 OUT O F 50 T IMES , FIRST OF ALL I WOULD THINK THAT YOUR , Y OU K NO W , T HE POLIC E DEPARTMENT IS GOING TO BE Q UE STIO NING I B ETTE R GO BACK AND LOOK A T THA T DOG.

NO.

THEY ARE JUST GOING T O SAY --

NO.

BUT I THI NK T HA T O UR , Y OU ARE NOT ASKING US TO G O T HAT FAR?

NO , I'M N OT A SKING YOU TO GO THAT FAR.

SO THEY ARE DIS COVE RA BL E AND THE FACT I S T HE Y MAY B E RELEVANT T O THE T OT ALIT Y O F THE CIR CU MS TA NCES A NA LYSI S.

THEY COULD BE. THEY COULD BE.

AND J US T N OT H AVE T O B E PART OF YOU R CASE IN CHIEF?

RIGHT. AND ALSO I THINK IT I S IMPORTANT TO EDUCATE THE TRIAL COURTS AS WELL A S OUR PRO SECUTORS AND OUR DEF EN SE COUNSEL BUT THESE FALSE ALERTS CANNOT BE - - Y OU C ANNOT D ETERMINE R EL IA BILITY BY THEM. AGAIN, THE D OG S DETEC T RESIDUAL O DO RS .

BUT THE EXP ERT W IT NESS DOESN'T AGREE WITH YOU?

AND THE TRIAL C OURT DIDN'T AGREE WITH THE EXPERT WITNESS.

I UNDERSTAND , A N E XPER T WITNESS, WHETHER THAT TRIAL COURT DOES OR ANOTHER , DISAGREES THAT FIELD REPORTS ARE NOT R ELEVANT , COR RECT?

THE EXPERT IN THI S CAS E?

YES.

ACTUALL Y H E D IDN' T S AY WHETHER THEY WERE RELEVANT OR NOT.

HE USED THEM.

HE U SED THEM , YES , H E D ID .

JUSTICE ANS TE AD HAS A QUESTION.

I WILL G O BACK TO THE FIRST PART ABOUT W HO HAS THE BURDEN OR WHATEVER. DON'T WE HAVE A GENER AL RUL E THAT SAYS IF YOU HAV E A WARRANTLESS SEARCH THAT I T IS THE STATE'S BUR DEN T O D EMONSTRATE PROBABLE CAUSE AND WHY I SN'T T HA T T HE R UL E THAT WE SHOULD A LY H ER E THAT O NC E C HA LL EN GE D , T HAT IT IS THE STA TE 'S BUR DE N T O D EMONSTRATE THAT IND EE D THE Y DID H AVE P ROBABLE CAUSE A T THE TIME BECAUSE THE POLICE OFFICERS ALL KNE W T HAT T HI S WAS A CERTIFI ED D OG A ND WHA T THAT MEANT AND ALL OF THA T KIND OF T HING , S O I 'M H AV IN G DIFFICULTY WITH YOUR POSITION THAT SOMEHOW IT SHOULD BE THE B UR DEN O F THE DEFENSE IN C HALL ENGI NG A WARRANT LESS SEA RCH. THIS WAS A WAR RA NT LE SS SEARCH.

IT WAS A WARRA NT LESS SEARCH.

AND WE HAVE A GEN ERAL RULE THAT SAYS THE BURDEN IS ON THE STATE O NC E T HAT WARRANT LE SS SEA RC H I S CHALLENGED.

THE STATE DID M EET T HE BURDEN IN THIS CASE.

I'M NOT - - I'M JUS T TRYING TO D EF END W IT H OUR EXISTING P OLIC Y. I 'M NOT TAL KING ABO UT WHETHER OR NOT IT HAS B EE N DEMONSTRATED IN A PARTICULAR CASE.

I'M NOT T RY ING TO S HIFT THE BURDEN. I'M SAYING THERE IS A GENERAL PRUCHTION BY THE STATE SAYING T HE DOG IS TRAINED AND CER TIFIED THEREIS A PRESUMPTION.

WHAT'S GOING TO BE SUFFICIENT, YOU KNOW , O NC E THE STATE PUTS O N I TS PRO OF AS S OM ETHING W E'VE GOT T O TRY T O SAVE AGA IN GOI NG BAC K TO, T HOUGH , THE I DE A T HA T I T IS THE T RIAL J UDGE T HAT MAKES T HAT DETERMI NA TION OF PROBABLE CAUSE, RIGHT?

THAT'S CORRECT. IT IS THE TRIAL J UD GE AND THE TRAINING RECOR DS A ND T HE CERTIFICATION RECORDS ARE VERY PROBATIVE. THAT IS WHAT IS G OI NG T O DETERMINE THE DOG 'S RELIABILITY, NOT THE F IE LD ACTIVITY REPORT.

I'M R EALL Y H AVING A DIFFICULT TIM E . I 'VE N OT SEEN M AN Y CIRCUMSTANCES IN M Y HUM AN EXPERIENCE THAT CERTIFICATION OR TRAINING I S THE ABO UT -A LL E ND A LL . IT IS - - B E-AL L , E ND -ALL . IT IS H OW D OE S IT P ER FORM? THERE MUST BE SOME W AY YOU CAN DETERMINE IF A THING I S FUNCTIONING AS IT WAS TRAINED AND CERTI FI ED T O FUNCTION AND PERFORM?

THAT IS W HY T HE Y CONTINUALLY TRAIN AND IFTHERE ARE ANY PROBLEMS IN TRAINING AND THEY F ALSELY ALERT IN TRAINING THEN T HE Y DO GO B ACK AND P ROVIDE REMEDIAL TRAINING AND T HE DOG WILL BE CERTIFIED.

IF I T IS F UN CTIO NING INAROPRIATELY WHEN IT IS ALY !!IED , I D ON'T - - MAYBE WE'VE GOT A P SY CH OT IC DOG O R SOMETHING. I DON'T KNOW. IT JUST SEEMS T O C ON FL IC T WITH COMMON SEN SE T HA T TRAINING AND C ON DI TI ON ING ARE FINE AND C ERTI FICA TI ON , BUT THAT A N A LICATION IS WHERE REALLY THE RUBBER MEETS THE ROAD IS H OW D OE S THAT ANI MAL P ERFO RM ?

BECAUSE THIS IS NOT LIK E -- I W ILL USE T HE E XAMPLE OF BASKETBALL WHE RE I N PRA CT IC E T HE STA R O F T HE TEAM DOES WONDERFUL AND THEN WHEN HE GOES OUT IN THE C OURT AND ACTUALLY PLAYS A GAM E H E DOES TERRIBLE.YOU CAN JUDGE H IS PERFORMANCE IN A GAME. YOU CANNOT DO THAT WITH A DOG IN A FIELD. IF AN OFFICER WAL KS U P TO A CAR AND SMELLS MAR IJ UANA THAT GIVES HIM PRO BABLE CAUSE TO SEARCH. IF HE S EARCHES THAT CAR A ND DOESN'T FIND ANY D RU GS , T HA T DOESN'T MEAN HE WAS WRONG. YOU DON'T SAY THAT HIS PERFORMANCE IN THE FIELD WAS I NCORRECT. IT IS THE S AME WITH A D OG. ONLY IN A CONTROL LED S ET TI NG WIL L YOU KNOW IF IT I S A FALSE ALERT . THAT IS THE ONLY W AY .

IN OTHER W ORDS IF I C AN FOCUS YOUR ARGUMENT , A D OG MAY SMELL THE PRE SE NCE O F DRUGS, EVEN AFTER THE DRU GS HAVE LEFT T HE SCE NE F OR S OM E PERIOD OF T IME?

EXACTLY.

SO THE DOG MAY B E ABSOLUTELY CORRECT THAT A T SOME POINT THERE WERE DRU GS IN THAT VEHICLE, IT I S J US T THA T THEY WERE T AKEN O UT A T SOME TIME BEFORE THE POLICE ARRIVED?

YES.

ARE T HE D OG S S UP POSE D TO BE TRA IN ED T O NOT - - BET WE EN RES IDUAL O DORS AND THE ACTUAL PRESENCE OF DRUGS?.

NO, THEY ARE T RA INED T O DETECT THE ODO R O F NAR CO TI CS AND LIKE I SAID IF THE DRIVER OF THE VEHICLE HAS THE DRUGS A ND HE J US T S TE PS OUT SO THEY CAN SEARCH BECAUSE A D OG HAS A LE RTED THE DOG IS STILL GOING TO PICK UP THE S CENT M OL ECUL ES .

SO THE D OG C AN NEV ER MAK E A M ISTAKE?

IT IS NOT K NO WN IF T HE DOG CAN M AKE A MIS TAKE I N THE FIELD. THAT IS WHY THEY TRAIN.

ISN'T THIS A D ANGERO US RUL E TO ACCEPT , THA T I S , THAT THE DOG IS N EV ER MAK E A MISTAKE?

NO.

THAT EITHER THE D RU GS WERE THERE BEFORE , YOU KNO W , AND SO WE HAVE SORT O F A N IN FAL IBLT, YOU K NO W , - - INFALLIBILITY PROPOSITIONHERE, AND CONTRARY T O Y OU R ANALOGY, THIS IS NOT A GAME. THIS IS ALLOW IN G T HE STA TE NOW TO I NV AD E SOM EBOD Y' S PRIVACY , W HETH ER IT I S - - S O W HAT YOU A RE SAY IN G I S THA T IN THIS CASE , E VE N T HO UG H THEY FOUND NOTHING, N OB ODY COULD SAY THAT THE DOG MAD E A MISTA KE , T HA T W E A LL W OU LD SAY THAT THE DOG R EALLY I S I NFALLIBLE AND T HE RE H AD T O HAVE BEEN DRUGS THE RE A T SOME TIME?

EVEN THE D EF EN SE E XPERT IN THIS CASE SAI D Y OU W IL L NOT KNOW IN THE FIELD IF A DOG HAS FALSELY A LERT ED WITHOUT KNOWING DISSI PATION RATES OF PARTICULAR DRUGS.

YOU HAVE W AY E XTEN DE D , BUT JUSTICE B ELL H AD A Q UESTION.

I'LL M AKE IT A S Q UICK AS I CAN. THE DIFFERENCE I SEE I N W HA T JUSTICE L EWIS WAS A SKING YOU HERE, YOU D ON'T HAVE T HE D OG TESTIFYING TO WHA T Y OU SMELL. WHAT YOU HAVE IS THE OFFICER WHO HANDLES THE DOG TESTIFYING TO WHAT THEY D ID , AND IT IS T HA T COM PONE NT THA T C ON CE RN S M E B EC AUSE IN THE CERTI FICATION PROCESS YOU HAVE THE HANDLER WITH THE DOG PROVI NG C ER TAIN THINGS BUT BECAUSE YOU HAV E THE OFFICER WOR KING THE D OG THERE IS ALWAYS THE TEMPTATION OF T HE P ROBL EM THAT YOU H AVE AND EXCUS E M E , BUT T HE B AD C OP , WHO - - THE WORK IN THE FIE LD C UING THE D OG SO THE A CT UAL WOR KI NG I N THE FIELD MAY B E D IFFE RE NT THEN AND SO DOESN'T T HAT MAKE THE FIELD R EPOR T SOMEWHAT PROBATIVE ? I UNDER STAND THE FALSE REPORTING C ONCERN BUT THERE IS ALSO A COLLATERAL C ONCERN ON THE OTHER SIDE OF THA T I S THAT YOU HAVE NOT O NLY THE DOG'S TRUSTWO RT HYNESS BUT THE HANDLER OF THE D OG 'S TRUSTWORTHYNESS BECAUSE THAT'S HOW REALLY THE TESTIMONY IS GETTING T HROU GH , SO IS IT I ND IC AT IV E , B ECAUSE YOU COULD H AVE A DOG DOI NG 97, 100% I N T HE C ONTR OLLE D C ERTIFICATION PROCESS , B UT 5 0% IN T HE F IELD I F Y OU H AV E A HAN DLER W HO I S NOT W ORKI NG THE DOG PRO PERLY AND W IT H AROPRIATE INTEG RITY?

IF YOU LOOK AT THESE TRAINING RECORDS AND I KNOW THE WAY THE H IL LS BOROUG H COUNTY S HE RIFF 'S OFF IC E D OE S IS I T I S I N T RA INING. YOU ALSO HAVE A S UP ER VISOR WHO HIDES THE DRU GS S O A L OT OF TIMES THE HANDLER D OESN'T KNOW --

WHAT JUSTICE BELL I S POINTING OUT IS THAT Y OU HAVE TWO E LE MENT S I N T HE FIELD, WHICH IS Y OU M AY N OT H AVE MAY BE I T I S A D IF FERE NT TRAINER, YOU K NO W , AND J US T THAT, A GAIN , T HA T I S WHY I T IS P RO BATIVE THAT M AY BE THERE IS THE TRAINER I N T HE FIELD OR THE HANDLER I N T HE F IELD THAT IS A CTUA LL Y AFFECTING THE DOG'S RELIABILITY.

AGAIN, THAT'S WHY T HE Y HAVE THE SUPERVISOR T O MAKE SURE THAT THE DOG IS NOT --

IN T HE F IELD T HEY H AVE?

O. I 'M SORRY, N O , BUT T HE FIELD, THE SUPERVISOR DOES LOOK AT THESE FIE LD ACTIV IT Y REPORTS EVERY TIME AND SIGNS OFF ON THEM.

THEY DON'T E VEN STA Y AROUND TO KNO W WHETH ER T HE DRUGS WERE FOUND?

A LOT OF T IMES T HEY G ET CALLED TO ANOTHER S CE NE AND I JUST WANT TO RESPOND T O HIS Q UESTION R EA LL Y B RI EFLY . T HEY ARE NOT -- T HE Y DO NOT CUE , THE Y MAK E S UR E THE Y DON'T CUE TO THE H AN DL ER I N T HESE TRAINING EXE RCISES AND ALSO THE C ERTI FICA TI ON I S A N INDEPENDENT AGENCY. IF THERE WAS ANY C UING B Y THE HANDLER YOU W OU LD KNO W IT IN THE CERTIFICATION .

THE O NLY TESTIMONY YOU GET IS THE HAN DLER TESTIFYING THE DOG C UED?

BUT YOU WOULD H AV E --

THE TESTIMONY, T HE DOG IS NOT GOING UP A ND T ES TIFY IN G HE CUED AND THE P EOPL E WHO DON'T HANDLE THE DOG DON'T NECESSARILY KNO W W HETH ER H E CUES BY SITTI NG , S CR AT CHING , BARKING OR WHATEVER , SO THE ONLY TESTIMONY THAT THE TRIER OF FACT H AS I S THE HANDLER'S TESTIMONY THAT I WALKED THE DOG AROUND AND THE DOG C UE D N OR MALL Y.

INSER T I F I INDIC AT ION , THE PEOPLE WHO CERTIFY T HESE DOGS AND THE SE HAN DLER S , THEY WOULD KNOW IF T HE HANDLER IS CUING.

BUT THEY ARE NOT IN THE FIELD. MY QUESTION IS OUT : WHE N THE CAR STO ED BES ID E T HE HIGHWAY AND THE ONE O FFIC ER IS WRITING THE TIC KE T WHILE THE OTHER OFFICER HAS THE DOG W ALKING I T A ROUN D T HE CAR A ND THE N - - A ND I N THE H EARING BEFORE THE JUDGE , THE ONLY ONE TESTI FY IN G THA T THE DOG A LERTED IS T HE HANDLER.

THAT'S CORRECT.

SO H OW D O W E A S THE - - HOW DOES THE TRIER O F F AC T IN THE F IELD R EPOR T EVE N THOUGH THE DOG M AY D O 1 00 % IN THE CONTROLLE D ENV IRONMENT, IF THE D OG I S ONLY ACCURATE 150 % , D OESN 'T THAT RAISE AT L EAST A QUESTION OF FACT O F W HE TH ER THE OFFICER I S MISS CUI NG O R OUTSIDE T HE FALSE R EPOR T?

I W OULD S UG GEST THAT I T DOES NOT, B ECAUSE YOU JUST DON'T KNOW IN THE F IELD I F DRUGS HAD JUST BEEN IN T HE CAR , IF THE RE ARE J US T D IFFERENT DIS SI PA TION RATES OF THE D RU GS . WITHOUT K NOWING THOSE THINGS THEN YOU COULD NOT USE T HO SE FIELD ACTIVITY REP ORTS T O JUDGE THE DOG 'S RELIABILITY. THEY MAY BE PROBA TIVE.

WITH OUR HELP , Y OU HAV E WAY EXCEE DE D O UR T IME. THANK YOU FOR Y OU R ASSISTANCE.

THANK YOU.

AND WE W IL L C ON SIDE R YOU R ASPECT OF THE A RG UM ENT . MISS H UMPHRIES.

THANK YOU, YO UR H ONOR. MY NAME IS C EL EN E HUM PH RI ES AND I AM HERE O N BEHAL F O F GAR Y A LA N M AE TSON . THERE ARE TWO ISSUES BEFORE THE COURT. THE FIRST I S WHETHER THE COURT HAS D IS CR ETIO NA RY JURISDICTION AND THE SECOND ISSUE IS THE QUESTION OF T HE MOTION TO SUP PR ESS LOO KING AT RAZOR'S R ELIA BILI TY . TURNING TO THE FIRST ISSUEOF JURISDICTION, THE STATE HAS FILED A NOTICE TO I NV OK E THIS COURT'S J URISDI CT ION ASSERTING THAT THERE IS D IRECT CONFLICT BETWEEN A THIRD DISTRICT COURT O F AEAL DECISION AND THI S DECISION FROM THE SEC ON D DISTRICT. AS THIS COURT K NOWS , I N ORDER FOR THERE TO BE D IR ECT CONFLICT, FOR THERE TO B E DISCRETIONARY J URISDICTION, THE CONFLICT MUST BE EXPRESSED A ND DIR EC T AND IT IS NOT HERE. THE DECISION B EING P OI NTED TO BY T HE STATE I S V ETTE R VERSUS STATE. IN THAT C ASE T HE DEC ISIO N I S DISTINGUISHABLE FOR TWO REASONS.FIRST OF ALL, AS JUS TICE PARIENTE REFERRED TO, THE ANALYSIS THERE IS O F A SEARC H WARRANT. SO THE T RIAL C OURT'S ANALYSIS WAS SPE CIFICA LL Y FOCUSED ON THE F OUR C OR NE R S OF THE AFFIDAVIT.

AND IN THA T V ET TE R OPINION, WE HAVE A STA TE MENT HERE THAT SAYS SIN CE T HE REPRESENTATION THAT RIN G O WAS PROPERLY TRA INED , CONVEYED PROBABLE CAUSE STANDING A LO NE . NOW , I N THE S EC OND DI ST RI CT OPINION THAT'S BEFORE US , DON'T T HE Y S AY I N ESS EN CE , THA T P RO PE RL Y TRA INED D OG DOES N OT P ROVI DE PRO BA BL E CAUSE, THAT STANDIN G A LO NE , S O A REN'T T HO SE T WO STATEMENTS REALLY IN CONFLICT?

I RESPE CTFU LL Y DIS AG RE E , JUSTICE QUINCE. FIRST OF ALL THAT STATEMENT WAS SPE CIFICALLY MADE IN T HE CONTEXT OF LOOKING AT A N AFFIDAVIT THAT WAS SUBMITTED TO A TRIAL COURT FOR OBTAINING A SEARCH WARRANTAND WHAT THE THIRD DISTRICT --

WHE N I T S AY S P ROPE RLY TRAINED IN AN AFFID AVIT O R A PERSON T ES TIFIES , THA T I T I S PROPERLY TRAINED, EXPLAIN T O ME WHAT THE D IFFERENCE I S .

YOUR HONOR, AS I REF ER TO IN THE BRIEF THERE IS GEN ERALLY A L OW ER S TANDAR D STHAZ ALIED IN THE PROBABLE CAUSE ANALYSIS WHEN LOOKING AT A DET ER MINA TI ON MADE BY A TRI AL COU RT WHO I S I SSUING A SEA RCH WAR RANT BECAUSE THERE THE PRESUMPTION IS YOU HAVE THE UNB IASED TRIAL COURT L OO KING AT THE FACTS PRE SENT ED TO THE TRIAL COURT BASED O N THOSE FACTS IS IT E NOUG H FOR THE TRIAL COURT T O MAKE THE DETERMINATION AND THAT'S NOT WHAT WE H AVE HERE. WE HAVE A SITUATION WHE RE OFFICERS ARE AT THE SCENE , SUBJECT TO THE COMPE TI TI VE ENTERPRISE OF F ERRE TI NG OUT C RIME AND LOOKI NG F OR NARCOTICS AND THERE IS A MORE OF A POSSIBILITY THAT A LAW ENFORCEME NT O FFICER IS GOING TO BE MORE WILLING TO FIND PROBABLE CAUSE THAN THE U NBIASED JUDGE WHO I S BEI NG ASKED TO ISS UE A SEA RC H WARRANT.

THIS STA TEMENT HAZ M AD E BY THE THIRD DISTRICT A S I READ THIS CAS E , D OE SN'T SEE M TO BE Q UOTING WHAT THE T RIAL JUDGE S AYS , B UT I T S EEMS MORE TO BE A CCEP TI NG A S A GENERAL PROPOSITION FROM THE FRANK O PINIONS THAT THAT'S NOT GOING T O BE P RO BA BL E CAUSE STANDING ALONE .

WELL, YOUR H ONOR --

AS O OSED T O A FIN DING IN THIS P AR TI CU LA R C ASE.

WELL, THEN LET'S LOO K A T THE S TATEMENT OF LAW T HA T THE COURT IS SAYING. FIRST OF ALL, IF THERE I S ANY CONFUSION ABOUT WHAT T HE THIRD DISTRICT IS ACTUALLY SAYING, THAT I S REASO N ENOUGH ALONE FOR T HERE TO B E NO EXPRESS AND DIR EC T CONFLICT, AND L OO K C LO SE LY AT VETTER. IT C IT ES A DEC IS IO N ISS UE D O NE YEA R PRI OR , STA TE V ER SU S FOSTER WHICH I TEMI ZE S M AN Y FACTORS THAT MUST BE CONSIDERED AND IT IS THAT SAME THIRD D ISTRICT O PINION THAT THIS S EC OND D ISTR IC T COURT OPINION CITES W IT H AROVAL FOR THE FACTORS REQUIRED FOR E ST AB LI SHING.

B UT D OE S V ET TE R , E VE N THOUGH IT CITES T HE F OSTER , D OESN'T REALLY GO INT O T HO SE FACTORS T HA T ARE LIS TED IN THE FOSTER OPINION, D OES IT?

IT DOE SN'T BECAUSE EVIDENCE WAS NOT PRESENTED AT THE EVI DENT IARY HEA RING AND THAT'S ANO TH ER R EASON WHY IT IT I S DISTINGUISHABLE. THE DEFENDANT E NTERED A P LEA BEFORE THE STATE HAD THE OORTUNITY TO PRESENT ANY OF ITS EVIDENCE, SO , A GAIN , IT IS COMPLETELY DISTINGUISHABLE FROM WHAT WEHAVE HERE. HERE WE HAVE A F UL L- BLOW N EVIDENTIARY HEARING.IN FACT, THERE WERE TWO HEARINGS, ONE ON FEBRUARY 24 OF 2 00 0 AND T HE N AGA IN I N MARCH. THERE WAS A SUBSTANTIAL AMOUNT OF EVIDENCE P RESENTED TO THI S T RIAL C OURT U PO N WHICH THE TRIAL COURT EXAMINED AND MADE ITS DECISION. SO BASED ON T HA T , W E F IN D THAT -- WE BELIE VE THA T THERE IS NO EXPRE SS AND DIRECT CONFLICT B ETWEEN THESE TWO DECISIONS AND THEREFORE THIS COURT DOES NOT HAVE D IS CR ET IO NARY JURISDICTION, BUT IF I T COURT D ISAGREES AND I F I T COURT CHOOSES TO EXERCISE ITS DISCRETIONARY JURISDICTION WE ASSERT THAT THE T RIAL COURT W RONG LY DENIED THE MOTION TO SURESS AND I WOULD LIKE TO TAKE AN O ORTUNITY TO ADDRESS SOME OF Y OUR CONCERNS, JUSTICE BEL L , AND OTHER QUESTIONS HAVE SUG GESTED. IF YOU LOOK S PECIFI CA LL Y A T RAZOR'S TRACK RECOR D T HI S DEM ONSTRATES A RECORD OF A DOG W HO D ID NOT P ERFO RM A S HE IS EXPECTED TO.

BEFORE YOU GET TO THA T , DIDN'T THE D CA H AV E T O G IV E SOME DISCRETION TO THE TRIAL COURT AND THE TRIAL COURT REJECTED THE E XP ER T' S TES TIMONY, THE D CA S EE MED T O WHOLEHE ARTEDLY ENDORSE T HE EXPERT'S TES TIMO NY . ISN'T THAT R EVER SI BL E I N ITSEL F?

WELL, I GUESS I HAV E THREE RESPONSES. FIRST OF ALL, T HI S COURT CAN RULE ON THE MERITS OF THE MOTION TO SURESS EVEN IF THE COURT D IS AGREES WITH T HE SECOND DISTRICT'S REASO NING. SO IF THI S COURT FIN DS ANOTHER BASIS FOR F IN DINGTHAT THE MOTION T O S UP PR ESS WAS WRONGLY DENIE D THI S COURT CAN D O S O. TURNING TO THE COURT'S ANALYSIS, FIRST I B EL IEVE THAT THE COURT, T HE S EC ON D DISTRICT PROPERLY LOOKE D AT ALL OF THE U ND ISPU TE D EVIDENCE TO THE EXTENT THAT THERE WAS ANY DISPUTED EVIDENCE, THE S ECON D DISTRICT INTERPRETED I T I N FAVOR OF THE PREVAIL ING PARTY BELOW .

YOU WANT TO GET INTO T HE FACTS OF THIS C ASE AND IF W E ACCEPT JURISDI CTION WE NEE D TO LOOK AT P RI NC IP LE S O F L AW . SO W HAT P RI NCIPLE OF LAW COMES OUT OF THE SECON D DISTRICT CASE THAT Y OU BELIEVE THAT WE SHO ULD ENDORSE FOR THI S S TATE ?

WELL , ACTUA LL Y T HE SEC OND DISTRICT STATES TWO DIFFERENT PRINCIPLES AND W E URGE BOTH TO THIS COURT. FIRST, THE SECON D D IS TRICT ASSERTS THAT THERE SHOULD BE A CERTAIN PRIME A F ASCI A S HOW -- PR IM A F ACIE CAS E. THAT THE Y S HO UL D ESTABLISH WHAT THIS C ER TIFICA TION MEANS, WHAT ACTUALLY HAENED TO OBT AIN THE CERTIFICATION AND WHAT SPECIFIC PROCEDURES ARE BEING FOLLOWED TO MAINTAIN THAT LEVEL OF R ELIABI LI TY WITH TRAINING.

I D IDN'T HEAR THE STATE REALLY ARGUING AGAINST THE FACT THAT THEY - - I F THE RELIABILITY IS QUESTIONED WHETHER IT IS CAL LE D A REBUTABLE PRESUMPTION THATTHEY WOULD P UT O N E VIDE NC E OF WHAT THE CERTI FI CA TION MEANS AND THE CONTINUING TRAINING, SO THA T W OULD B E - - THAT'S N UM BE R O NE , A ND THEN WHAT ELSE?

WELL, MAYBE I'M NOT BEI NG CLEAR ENOUGH. THAT THERE IS NO PRESUMPTION OF EVIDENCE.THE STATE H AS T O SPECIFICALLY ESTABLISH THAT THIS CERTIFICATION MEA NS THIS DOG IS REL IA BLE. THE ACTUAL --

SO EVEN I F IT I S N OT - - J UST T O EST ABLISH P ROBABL E CAUSE, IF IT IS Q UEST IONE D AT ALL THEN THEY HAVE T O P UT ON THAT WIT HOUT IT , AND THERE WOULDN'T BE ANYTHING THAT YOU WOULD HAVE TO S AY , OTHER THAN I D ON 'T AGREE THAT HE WAS REL IA BL E?

THAT'S OUR FIRST POSITION , YES, AND OUR SECOND P OS IT IO N IS IN THIS CASE T O THE EXTENT THAT WE L OO K H ERE A T THE E VIDENCE S TILL ESTABLISHES THAT THERE WAS NOT PROBABLE CAUSE.

LET'S GO BACK TO T HEN THE ISSUE OF THE FIELD REPOR TS . D IDN'T T HE CON TR AR Y TO W HAT AEARS TO BE THE OVERWHELMIN G NUMBER OF CASES AROUND THE C OUNT RY , THA T THE SECOND D ISTRICT GAV E UND UE WEI GHT. I'M NOT SUG GESTING WHETHER THEY SHOULD HAVE BEEN DISCOVERABLE OR ADMISSIBLE B UT UNDUE W EIGH T T O R AZOR 'S PERFORMANCE IN THE FIELD. DO YOU KNOW OF A NY CASES OUT THERE IN ALL O F T HE O THER JURISDICTIONS WHERE F IELD PERFORMANCE ITSEL F WAS T HE INDICATOR OF WHETHER T HE RE WAS P ROBABLE CAUSE OR NOT?

STATE VERSUS F OS TE R C IT ED AS ONE OF ITS FACTORS , N OT T HE P RI MARY, BUT I N T HA T DECISION IT SAYS IN QUOTES , ESPECIALLY INFORMATION REGARDING FALSE ALE RTS. FOSTER SPE CI FI CALLY P OI NTS TO THE OTHER FACTORS REGARDING TRAINING AND T HIS REGARDING ACTUAL PERFORMANCE.

THERE HAVE BEEN A LOT O F CASES, THOUGH , A CROS S T HE COUNTRY IN THE LAST 2 0 Y EA RS D ISCUSSING WHE TH ER A D OG 'S A LERT C ON ST IT UT ES P ROBA BL E CAUSE AND I ASSUM E W HA T JUSTICE PARIE NTE IS ASKIN G IS IN CASES A ROUND T HE COUNTRY, WHAT OTHER S TATE S , IF ANY, HAVE SAI D T HA T FIE LD REPORTS ARE RELEVANT T O DETERMINING THE RELIABILITY OF T HE A LE RT ?

NO OTHER CAS ES T HAT I HAVE FOUND. NO OTHER STATE OR FED ERAL. IN FACT, THEY HAVE R UL ED T HE OTHER WAY AND W E RESPECTFULLY DISAGREE W ITH THOSE D ECISIONS AND THIS CASE MAKES C LEAR W HY. IF YOU GO B ACK T O THE U NITE D STATES POLICE K AY F LI N A SSOCIATION'S EVALUAT ION OF RAZOR AND H IS HANDLER AS A TEAM IT SHOWS M ANY PRO BLEMS. SPE CIFICALLY IN THE REC OR D , PAGES 3 63 T O 3 66 , THE UNI TE D STATES POLICE C ANIN E ASSOCIATION NOTES O NE , T HA T THIS HANDLER K EY ED R AZ OR O N TO FLA SHINGS. TWO, THAT D URIN G T HE CERTIFICATION T ESTING THIS HANDLER CAU SE D RAZ OR T O F ALSELY A LE RT , A ND N UM ER OU S OTHER ERROR S , I NCLU DI NG P OO R LEA SH CONTROL AND P OO R HANDLING OF THE DOG SO THERE IS ALREADY EVIDENCE G OINGBACK TO THE CER TIFICA TI ON THAT THERE WERE PROBLEMSWITH RAZOR FALSE A LERTIN G.

SO YOU ARE S AY IN G A F AC T F INDER WOU LD A BSOL UT EL Y T HE N BASED ON THIS HAVE TO F IN D NO PROBABLE C AUSE OR IT WOULD BE A QUESTION O F THE CIRCUMSTANCES FOR T HE FACT FINDER?

IT WOULD BE A TOT AL ITY O F THE CIR CU MS TANC ES A ND M AYBE --.

MAYBE WE GO BACK T O THIS ISSUE WHICH IS JUST I N TER MS OF W HERE O UR S CO PE O F R EVIE W IS, I S T HAT Y OU A RE N OT ASK ING US T O A NN OUNC E A H AR D AND FAST RULE THAT T HE RE H AS TO BE 9 5% T ES T SCOR E O N A DOG BEFORE THEY C AN E VE N B E OUT THERE SNIFFING?

NO, YOUR HONOR , W E'RE NOT ASKING AND P ROBABLE C AU SE IS NOT SUBJECT TO PERCENTAGES BUT WE ARE SAYIN G HERE THE PERFORMANCE OF THIS DOG I S SO POOR. THERE IS NO WAY H E COU LD HAVE FORMED THE B AS IS F OR PROBABLE CAUSE.

THIS IS , I KNO W - - I T HOUGHT THAT ACT UA LL Y H IS PERFORMANCE IN THE CAN IN E WAS LIKE ACT UALL Y 9 6% . T HAT HE , AS FAR A S THE DOG HIMSELF.

IF YOU ARE GOING BACK TO THE CERTI FICATION.

THAT'S WHAT I THO UGHT YOU WERE -- YOU SAI D T HAT HE D ID TERRIBLEY IN HIS CERTIFICATION.

WELL, ACTUALLY MY COMMENT RIGHT NOW WAS REF ERRI NG T O HOW POORL Y H E DID I N T HE FIELD ACTIVITY REPORTS.

WASN'T HE SORT O F A N A DOG AS FAR AS HIS C ERTI FY - - C ERTIFICATION FROM THE CANINE ASSOCIATION?

WELL, TWO COMME NTS T O THAT. FIRST OF ALL THE RECORD I S SOMEWHAT INCONCLUSIVE BUT DEPUTY GRECO D OES S AY A T ONE POINT IN HIS DEPOS ITION T HAT MY DOG PERFORMED 1 00 %. THAT'S NOT THE C RI TI CA L INQUIRY. HOW MANY TIMES DID HE F ALSE ALERT?

WELL , L ET 'S C IRCL E B AC K , THOUGH, TO START OUT W IT H THE TRIAL COU RT , U NLIK E THE JUDGE NOW THAT'S I SS UI NG THE W ARRANT, WE D ON 'T H AVE T HAT IN THIS P ARTICULAR C ASE , BUT THEIR RESPONSIBILITIES ARE SIMILAR ALT HOUGH ONE IS REALLY ACTING JUST ON T HE BASIS OF O NE SID ED P RESENTATION, BUT W HY SHOULDN'T IT BE THE T RI AL JUDGE THAT FIRST OF ALL W E START OUT WITH YOU CHA LLEN GE THE LEGALIT Y O F T HE SEARCH AND THE EXI STENCE OF P ROBABLE CAUSE , B UT W HY WOULDN'T IT B E S UFFI CI ENT FOR THE S TATE THEN T O M EE T ITS BURDEN IF I T P UT S O N A CASE THA T T HE DOG I S CERTIFIED AND WHAT THA T C ERTIFICATION MEANS? THAT IS , THA T THERE I S S