> >> PLEASE RISE.

HEAR YE HEAR YE HEAR YE.

THE SUPREME COURT OF FLORIDA IS

NOW IN SESSION.

ALL WHO HAVE CAUSE, TO PLEA,

DRAW NEAR, GIVE ATTENTION, AND

YOU SHALL BE HEARD.

GOD SAVE THIS UNITED STATES,

THIS GREAT STATE OF FLORIDA, AND

THIS HONORABLE COURT.

LADIES AND GENTLEMEN, THE

FLORIDA SUPREME COURT.

PLEASE BE SEATED.

>> GOOD MORNING AND WELCOME TO

THE FLORIDA SUPREME COURT.

WE HAVE A DISTINGUISHED GROUP

WITH US HERE TODAY.

PRACTICING WITH PROFESSIONALISM

GROUP.

AND I NOTICE THE PRESIDENTS OF

OUR FORMER JUSTICE CHARLIE

WELLS, WELCOME BACK.

WE WILL DO OUR FIRST CASE ON THE

CALENDAR, WHICH IS HARRIS VERSUS

STATE, ARE THE PARTIES READY?

>> YES, YOUR HONOR.

>> MAY IT PLEASE THE COURT, GLEN

GIFFORD FROM THE SECOND CIRCUIT

PUBLIC DEFENDERS OFFICE.

AND THIS CASE IS BEFORE THE

COURT ON DIRECT AND EXPRESS

CONFLICT IN THE FIRST DISTRICT,

CITED THE ... THE ISSUE IS

WHETHER THE STATE MUST PRODUCE

PERFORMANCE RECORDS OF DRUG

DETECTING DOGS IN ORDER FOR IT

TO... SEARCH A VEHICLE.

>> THIS CASE, MR. GIFFORD, THE

-- ACCORDING TO THE TESTIMONY,

THE PERFORMANCE RECORDS THAT

WOULD INDICATE FALSE ALERTS WERE

KEPT BECAUSE THE TRAINER SAYS

THE ONLY TIME THEY KEPT THE

RECORDS WAS WHEN THE ARREST WAS

MADE SO, HOW WOULD THE -- IN

THIS CASE, HOW WOULD THE FIELD

PERFORMANCE RECORDS REALLY HELP

IN DETERMINING THE DOG'S

RELIABILITY? AND AS YOU ANSWER

THAT, THAT IS A QUESTION I HAVE,

IS IF WE ARE MAKING ONE TEST,

THERE HAS TO BE THIS TYPE OF

RECORD, ISN'T THAT KIND OF

RESTRICTIVE FOR THE DEFENDANT,

AS WELL AS FOR THE TRIAL JUDGE?

>> YOUR HONOR, THE VERY FACT THE

RECORDS WERE NOT KEPT IN THE

CASE AND AVAILABLE TO THE

DEFENSE AND NOT PRODUCED BY THE

STATE, MOST IMPORTANTLY, THAT

MEANS THAT PROBABLY CAUSE CANNOT

EXIST.

THE FIELD PERFORMANCE RECORDS

ARE THE MOST IMPORTANT

CRITERION.

>> BUT THEY KEPT THEM,

APPARENTLY, THEY JUST KEPT THEM,

ONLY WHEN AN ARREST WAS MADE.

NOW, AS -- WOULD YOUR ARGUMENT

BE THAT THAT IS NOT -- THAT

COULD NOT EVEN CONSTITUTE PROPER

FIELD PERFORMANCE RECORDS, IF

THEY ARE INHERENTLY SKEWED?

IF THE ONLY TIME THAT A REPORT

IS MADE, IS WHEN THERE IS AN

ARREST MEANING NOTHING IS FOUND.

>> IT SHOWS THE DOG'S SUCCESS

RATE AND BATTING AVERAGE AND

RECORD OF ALERTING WHEN DRUGS

ARE FOUND AND WHEN THEY ARE NOT

FOUND.

>> IS THAT REALLY A TRUE TEST OF

THE CAPABILITY OF THE PARTICULAR

ANIMAL OR THING, BECAUSE

CERTAINLY A DOG MAY ALERTED AND

THERE MAY CERTAINLY BE THE SCENT

OR ODOR BUT THE DRUG IS NOT

PRESENT AND IT IS THE RESIDUAL

THAT IS THERE, DO WE HAVE A

PROBLEM IN TRYING TO SET THE

PARAMETERS FOR WHAT THAT A FIELD

PERFORMANCE REPORT, WHATEVER

THAT MAY BE, SHOULD CONTAIN?

>> WELL, THE CASE LAW REFLECTS

THAT THE PROBLEM OF RESIDUAL

ODOR IS THIS DOG'S CAPACITY TO

ALERT TO RESIDUAL ODORS CAN

DETRACT FROM PROBABLE CAUSE AND

ALL THE LOWER COURTS, MATHESON

AND COLEMAN ACKNOWLEDGE IT IS

RELEVANT EVIDENCE, A DOG'S FIELD

PERFORMANCE RECORD AND THE

QUESTION IS WHETHER IT IS THE

STATE'S BURDEN OF PROOF OR NOT.

>> RIGHT NOW, THEY ARE NOT

REQUIRED TO KEEP THESE KIND OF

PERFORMANCE RECORDS, CORRECT.

>> IN THE SECOND DISTRICT, THEY

ARE, YOUR HONOR.

>> OTHER PLACES THEY ARE THE

NOT.

SO YOU ARE ASKING US, THEN, TO

REQUIRE THE POLICE TO KEEP THESE

KINDS OF PERFORMANCE RECORDS.

>> THAT'S RIGHT, YOUR HONOR, ONE

OF THE THREE COMPONENTS OF

PROBABLE CAUSE, ONE OF THE THREE

LEGS OF THE STOOL.

>> WHAT IS THIS SOURCE OF THAT

REQUIREMENT?

>> THE SOURCE OF THAT

REQUIREMENT WOULD BE THE

TOTALITY OF THE CIRCUMSTANCES

RULE OR THE REQUIREMENT OF THE

STATE TO PROVIDE PROBABLE CAUSE

FOR A --

>> BUT IS YOUR ARGUMENT -- IN

THE ABSENCE OF THAT PARTICULAR

EVIDENCE, THERE CAN NOT BE A

FINDING OF PROBABLE CAUSE THAT

RELIES ON THE DOG ALERTING TO...

INTO THAT IS CORRECT, YOUR HONOR

AND THE REASON.

>> IF WE DO NOT KNOW THAT THE

DOG'S PERFORMANCE RECORD, THE

DOG'S SUCCESS RATE, IN -- AND

PAST PERFORMANCE, 4 TO 6 WEEKS

OUT, 2 TO 3 MONTHS OUT, WE DON'T

KNOW WHETHER THE DOG IS AN

ACCURATE PREDICTOR OF THE

PRESENCE OF DRUGS, IF THE DOG IS

ALERTING TO THE SCENT OF

RESIDUAL ODOR, AS IT DID IN THIS

CASE IN TWO INSTANCES, RATHER

THAN THE PRESENCE OF DRUGS, AT

THAT MOMENT.

>> WHAT IF WE -- WHAT IF IT IS

THE CASE, THAT ALL DOGS ARE

GOING TO AT LEAST IN SOME

CIRCUMSTANCES, ALL DOGS THAT ARE

TRAINED AS WELL AS THEY CAN BE

TRAINED, AND HAVE THE BEST

ABILITY ARE GOING TO ALERT THE

RESIDUAL ODORS BECAUSE THE FACT

OF THE MATTER IS, THE MOLECULES

BOUNCING AROUND THE AIR,

ASSOCIATED WITH A RESIDUAL ODOR,

MAY BE THE SAME IN NUMBER AS THE

MOLECULES BOUNCING AROUND IN THE

AIR ASSOCIATED WITH A VERY

TIGHTLY-WRAPPED CONTAINER WITH

DRUGS.

AND SO THERE IS REALLY NO

DIFFERENCE BETWEEN WHAT WILL BE

DETECTED IN THE AIR FROM -- LEFT

OVER FROM A CONTAINER THAT HAD

BEEN THERE THAT WAS NOT TIGHTLY

WRAPPED, AND A CONTAINER THAT IS

THERE THAT IS TIGHTLY WRAPPED,

DOES THAT MAKE SENSE.

>> THAT DOES MAKE SENSE AND I

DON'T KNOW OF ANY SCIENCE TO

SUPPORT IT OR ANY SCIENCE THAT

TELLS US THAT YOU'LL HAVE THE

SAME AMOUNT OF MOLECULES

BOUNCING AROUND IN THE AIR IN

EITHER CIRCUMSTANCE, COMMON

SENSE WOULD TELL US THAT DRUGS

THAT ARE ACTUALLY PRESENT IN THE

VEHICLE WILL GIVE OFF A SCENT, A

FRESH SCENT AND DRUGS THAT ARE

NOT VEHICLE AND PRESENT AT SOME

POINT IN THE PAST WILL GIVE OFF

WHAT IS REFERRED TO IN THE

LITERATURE AND THE CASE LAW, A

--

>> IS THERE -- IS IT POSSIBLE

FOR A DOG TO BE TRAINED TO KNOW

THE DIFFERENCE HERE?

BECAUSE IT SEEMS TO ME THAT WE

ARE GETTING VERY PICKY ABOUT

WHETHER OR NOT, YOU KNOW, IT'S

REALLY A RESIDUAL ODOR OR

WHETHER OR NOT IT REALLY IS A --

YOU KNOW, A PRESENT ODOR,

BECAUSE IN ANY -- EITHER WAY,

THE DOG THINKS -- SEEMS TO ME IS

PERFORMING IN THE WAY THE DOG IS

TRAINED TO PERFORM, AND THAT IS,

TO DETECT THE ODOR OF NARCOTICS.

>> YES, YOUR HONOR AND THIS IS

THE KEY, DOGS CAN BE CONDITIONED

NOT TO ALERT TO RESIDUAL ODORS

BELOW A CERTAIN THRESHOLD.

>> IS THERE EVIDENCE IN THE

RECORD THAT WOULD SUPPORT THAT

CONCLUSION.

>> NOT IN THE RECORD, IN THE

CASE LAW, YOUR HONOR AND IT IS

MATHESON, WHICH POINTS TO U.S.

CUSTOMS SERVICE OFFICERS AND THE

DOGS ARE TRAINED NOT TO ALERT

THE RESIDUAL ODOR OF DRUGS.

>> SEEMS TO ME THAT IS ALMOST --

AND SEEMS THAT IS ALMOST WHAT

JUSTICE LEWIS WAS ASKING ABOUT

AND SEEMS THE CASES HAVE TAKEN

TWO VIEWS OF THIS, WHICH IS, I

TEND TO AGREE WITH WHAT MATHESON

IS SAYING WHICH IS IF A DOG

CAN'T BE TRAINED TO ALERT

BETWEEN WHAT MIGHT BE RESIDUAL

ODORS WHICH YOU CAN'T

SUBSTANTIATE AND SOMETHING THAT

IS REALLY IN THE VEHICLE, THEN,

REALLY THEY MAY ALERT 100% OF

THE TIME AND WE'LL NEVER KNOW IF

IT IS FALSE OR NOT BUT ON THE

OTHER HAND THERE ARE SOME COURTS

THAT SEEM TO SAY IT IS GOOD THEY

ALERT TO RESIDUAL ODORS, IN

TERMS OF THIS AND I THINK THIS

IS WHY THE COURT IS RELUCTANT TO

TAKE ONE OF THESE CASES BECAUSE

THE RECORDS SEEM TO BE VARYING,

DEPENDING ON WHETHER THERE ARE

EXPERT WITNESSES OR NOT, THAT TO

ME IS A THRESHOLD ISSUE, IS

THAT, IS IT -- WHAT JUSTICE

QUINCE IS ASKING, IS, CAN --

YOUR RECORDS RELY ON OTHER CASES

TO SAY A DOG CAN BE TRAINED TO

DISTINGUISH BETWEEN RESIDUAL

ODORS AND ACTUAL DRUGS IN A

VEHICLE AND YOU ARE BASING THAT

ON OTHER CASES.

>> THAT'S RIGHT, I'M BASING IT

ON MATHESON AND MATHESON CITE TO

THE U.S. CUSTOM SERVICE AS WELL

AS OTHER CASES IN THE BRIEF THAT

SHOW EXTINCTION TRAINING, CAN BE

PERFORMED AND IS NOT GENERALLY

PERFORMED IN THE DOG'S -- DOG

WHOSE RECORDS WE HAVE BEEN ASKED

TO DETERMINE.

BUT IT CAN BE --

>> SEEMS TO ME WHEN WE GO DOWN

THE ROAD, I MEAN, YOU CAN HAVE A

RESIDUAL ODOR THAT WAS, WHAT, I

WEEK AGO?

A DOG COULD IN FACT SNIFF, A --

THE DRUGS HAD BEEN IN THE CAR A

WEEK AGO OR A DAY AGO.

>> THE OFFICER IN THIS CASE WAS

ASKED, THE QUESTION ABOUT THAT,

AND HE SAID, I CAN'T ANSWER THAT

QUESTION, I'M NOT COMFORTABLE

ANSWERING THAT QUESTION.

>> THEN THE ISSUE COMES BACK TO,

AND THIS IS WHAT I THINK THE

STATE HAS BEEN SAYING, IF IN A

BEGIN SITUATION, EVEN AS THE

OFFICER TESTS RECORDS IN THE

FIELD, WE WOULDN'T KNOW -- AND,

THE DOG ALERTED AND DRUGS WERE

NOT FOUND, AND THERE ARE TWO

OTHER POSSIBILITIES, THE

POSSIBILITIES ARE THAT THE

RESIDUAL ODOR, OR A FALSE ALERT.

NOW, I GUESS, FOR THE TRIER OF

FACT, THIS IS WHAT CONCERNS ME,

IS HOW DO WE KNOW WHICH OF THOSE

TWO IT IS, AND WHAT THE STATE IS

SAYING, IS, WELL, THEN YOU HAVE

TO LOOK AT THE TRAINING RECORD,

YOU LOOK AT RECORDS THAT ARE

UNDER CONTROLLED CONDITIONS AND

IS THAT THE ONLY WAY YOU KNOW

WHETHER THEY ARE RESIDUAL ODORS

OR FALSE ALERTS OR ACTUAL DRUGS,

ISN'T THAT A REASON WHY THE

FIELD PERFORMANCE RECORDS REALLY

ARE NOT THE ONLY BASIS ON WHICH

PROBABLE CAUSE CAN BE

ESTABLISHED?

>> WELL, THEY ARE NOT THE ONLY

BASIS.

>> I THOUGHT YOU WERE ARGUING

FOR SORT OF A PER SE RULE.

>> PER SE RULE, UNLESS THE

RECORDS ARE PRESENTED IN

ADDITION TO THE TRAINING AND

CERTIFICATION RECORDS.

>> SO YOU ARE SAYING A DOG OUT

ON HIS INITIAL TRIP, HAS NO

PERFORMANCE RECORD, THE EVIDENCE

SHUNTS -- SHOULDN'T BE

CONSIDERED ONCE HE ALERTS A

POSITIVE.

>> ONCE THE COURT ANNOUNCES THE

RECORDS RELEVANT AND NECESSARY

FOR THE STATE TO MEET THE BURDEN

OF PROOF, IF THE STATE DOESN'T

KEEP THE RECORDS, YES, THAT

WOULD BE THE RULE.

>> BUT IF HE HAS NO PERFORMANCE

RECORD.

>> NO PERFORMANCE RECORD.

>> HE'S ASKING ABOUT THE INITIAL

TIME THE DOG GOES OUT.

>> OH, OH, AND IN THE ORAL

ARGUMENT IN GIBSON, JUSTICE

ANSTEAD ASKED ABOUT THE HONOR

STUDENT'S DOG AND THE INITIAL

TIME THE DOG GOES OUT AND THERE

ARE TWO WAYS THE COURT COULD GO

ON THAT AND ONE IS THE DOG COULD

BE DEPLOYED BUT THE PERFORMANCE

WOULDN'T BE RELIED UPON TO

ESTABLISH PROBABLE CAUSE UNTIL

THE DOG ESTABLISHED A FIELD

RECORD OF 4 TO 6 WEEKS OR 10 TO

20 ALERTS.

>> EVEN IF THE DOG ACTUALLY

ALERTS AND THERE IT IS, YOU

SHOULDN'T RELY ON IT.

>> WELL, THAT WOULD BE ONE

DIRECTION THE COURT COULD GO IN,

AND WOULD BE IN EFFECT AN

INTERNSHIP FOR THE HONORS

STUDENT, ONE WAY YOU COULD LOOK

AT THAT AND THE OTHER WAY TO

LOOK AT IT IS IF THE DOG IS

NEWLY CERTIFIED, THAT DOG IS

PRESUMABLY A LITTLE MORE

RELIABLE THAN A DOG WHO IS --

WHOSE CERTIFICATION LAPSED,

LAPSED 28 MONTHS IN THIS CASE,

ACTUALLY.

SO THAT DOG'S INITIAL

PERFORMANCE BASED UPON THE

RECENT CERTIFICATION, AND RECENT

TRAINING, WOULD BE SUFFICIENT.

>> YOU ARE SAYING THERE, THERE

ARE CIRCUMSTANCES, WHERE THE

FIELD EXPERIENCE AND THE RECORDS

OF THE FIELD EXPERIENCE ARE NOT

NECESSARY.

SO, KIND OF -- HOW DO YOU

RECONCILE WHAT YOU ARE

SUGGESTING?

THE BASIC RULE YOU ARE

SUGGESTING FOR REQUIRING THESE

RECORDS WITH THE TOTALITY OF THE

CIRCUMSTANCES IN THEM?

THAT I MEAN, YOU WOULD ADMIT

THAT WHENEVER WE'RE LOOKING AT

POSSIBLE CAUSE WE HAVE TO LOOK

AT TOTALITY OF CIRCUMSTANCES,

ISN'T THAT CORRECT?

>> THAT'S CORRECT.

>> HOW DOES THAT FIT IN WITH

WHAT --

>> YOU DON'T HAVE FIELD

PERFORMANCE RECORDS SHOWING HOW

THE DOG PERFORMED IN THE RECENT

PAST, IN ADDITION TO THE

TRAINING AND CERTIFICATION

RECORDS FROM THE MORE DISTANT

PAST AND YOU DON'T HAVE A

TOTALITY OF THE CIRCUMSTANCES.

WHAT YOU HAVE ARE NARROW

CIRCUMSTANCES.

>> BUT, THE TOTALITY OF THE --

THE FOCUS IS ON THE TOTALITY OF

THE CIRCUMSTANCES THAT ARE KNOWN

TO THE OFFICER.

AND -- ISN'T THAT CORRECT, WHAT

THE FOCUS IS ON.

>> THAT'S CORRECT.

>> IN DETERMINING WHETHER THERE

IS PROBABLE CAUSE.

>> RIGHT.

>> TOTALITY OF CIRCUMSTANCES

KNOWN TO THE OFFICER, HOW DOES

WHAT YOU -- HOW IS WHAT YOU ARE

SUGGESTING CONSISTENT WITH THAT

CONCEPTUAL FRAMEWORK.

>> IT IS CONSISTENT IN THAT, THE

TOTALITY OF THE CIRCUMSTANCES,

THEY A KNOWN TO THE OFFICER, AND

SHOULD INCLUDE THAT DOG'S FIELD

PERFORMANCE RECORDS, THIS IS THE

DOG'S HANDLER AND THE DOG'S --

THE PERSON WHO TAKES THE DOG OUT

EVERY DAY ON PATROL, AND DEPLOYS

THE DOG --

DEPLOYS THE DOG.

>> YOU ARE SAYING THE OFFICER --

YOU ARE SAYING HE KNOWS IT'S A

RELIABLE DOG UNLESS HE HAS THE

RECORDS.

>> HAS REASON -- HAVE REASON TO

BELIEVE THIS IS NOT A RELIABLE

DOG AND THAT IS SUBJECT TO

REVIEW BY THE MAGISTRATE ON A

MOTION TO SUPPRESS AND KEEP IN

MIND, IT US THE STATE'S BURDEN

TO PRODUCE EVIDENCE TO JUSTIFY

WARRANTLESS SEARCH, AND IT IS

THE STATE WHO KEEP THE DOGS,

DEPLOYS THESE DOGS AND IS ONLY

THE STATE THAT CAN IN THE

NATURAL COURSE OF EVENTS, THE

STATE MUST BEAR THE BURDEN OF

PRODUCING THIS EVIDENCE.

AND REALLY NO DISAGREEMENT ABOUT

WHETHER THE EVIDENCE IS

RELEVANT.

>> LET'S TALK ABOUT, THE FACTS

OF THIS CASE, I WAS INTERESTED

THAT THIS DOG ALERTED TO A --

THE DOOR HANDLE.

AND, DIDN'T ALERT ANYTHING IN

THE VEHICLE.

AND I'M NOT SURE THAT YOU HAVE

ACTUALLY RAISED THAT SPECIFIC

POINT BUT SINCE THE HANDLE CAN

BE ANYONE CAN TOUCH A HANDLE,

HOW DOES THAT -- AND WILL BE A

QUESTION FOR THE STATE, HOW DOES

THAT ESTABLISH PROBABLE CAUSE IN

THIS CASE, COUPLED WITH THE FACT

THAT -- AND I DON'T KNOW IF

THERE IS SIGNIFICANCE TO THIS,

THAT HE IS TRAINED TO DETECT THE

PSEUDOEPHEDRINE, IS THAT

ESTABLISHED THAT THAT WOULD BE A

SEPARATE DETECTION FROM THE

ABILITY TO DETECT METH AND

REALLY GOES TO WHAT WE ARE

DEALING WITH NOW, THE REAL LIFE

-- THIS CASE, I'M CONCERNED

ABOUT HIM ALERTING JUST TO A

HANDLE WHICH ANYONE COULD TOUCH

AND I'M ALSO CONCERNED ABOUT

WHETHER HE ACTUALLY WAS

CERTIFIED OR TRAINED, WHATEVER

THAT MEANS, IN THIS PARTICULAR

DRUG.

HE, THE DOG.

>> ON THE DOOR HANDLE, THE DOG

ALERTED TWICE TO THE DOOR

HANDLE, AND MR. HARRIS TESTIFIED

IN THE SUPPRESSION HEARING HIS

WINDOW WAS DOWN AND THAT SEEMS

REASONABLE WITH THE TRAFFIC

STOP.

THE PSEUDOEPHEDRINE WAS IN THE

CAR, THE CAB OF THE TRUCK AND

YET THE DOG ALERTED TO THE DOOR

HANDLE AND THE OFFICER TESTIFIED

THE DOG WAS ALERTING TO A

RESIDUAL SCENT, NO QUESTION

ABOUT THAT AND WE KNOW IN THE

FIRST INSTANCE, THE FIRST -- THE

ONE BEFORE THE COURT, THE DOG

ALERTED WHEN THERE WERE NO DRUGS

PRESENT.

>> THEREFORE, I MEAN, AGAIN, IN

EACH CASE WE HAVE TO LOOK AT ON

ITS OWN FACTS, SHOULDN'T THAT

CONCERN US, THAT IF WE KNOW A

DOG HAS ONLY ALERTING AT THE

MOST, RESIDUAL ODOR OR MAYBE A

FALSE ALERT, HOW CAN THAT -- DID

YOU MAKE THAT ARGUMENT, THAT

THAT ITSELF WOULD NOT -- SHOW

THERE WAS NO PROBABLE CAUSE.

>> WE DID MAKE THE ARGUMENT AND

THAT WAS REALLY THE CORE OF THE

ARGUMENT.

>> CAN I GET CLEAR ON WHEN THE

-- IT'S ADMITTED THE DOG ALERTED

TO A RESIDUAL SCENTS.

>> IT'S IN THE TRANSCRIPT.

>> AT WHAT POINT DOES THAT ALERT

-- DID THAT ALERT OCCURRED.

>> THAT ALERT OCCURRED WHEN THE

DOG WAS DEPLOYED TO THE VEHICLE,

AT THE TRAFFIC STOP AND

MR. HARRIS DENIED CONSENT FOR

THE SEARCH AND THE OFFICER

DEPLOYED THE DOG AND THE DOG

ALERTED TO THE DRIVER'S SIDE

DOOR HANDLE AND THE FIRST STOP

IN JUNE WHEN THERE WAS

PSEUDOEPHEDRINE IN THE CAR AND

NO METHEMPHETAMINE WHICH THE DOG

WAS TRAINED TO ALERT TO AND AT

SOME POINT BETWEEN JUNE AND

OCTOBER THE DOG ALERTED AGAIN TO

THE DOOR HANDLE, NO PSEUDO --

>> WAS MR. HARRIS -- YOU SAY

SUBSEQUENTLY I'M TRYING -- IS

MR. HARRIS INVOLVED IN THE

SUBSEQUENT.

>> SAME PARTY, SAME DOG, SAME

HANDLER, SAME THING.

>> SAME CAR?

DIDN'T GET HIS CAR FIXED .

>> SAME TRUCK, EVIDENTLY HE WAS

OUT ON BOND AND --

>> DIDN'T WASH THE CAR --

[LAUGHTER].

>> LET ME GET CLEAR, WHICH STOP

-- ARE BOTH STOPS AT ISSUE IN

THIS CASE?

>> SECOND STOP IS -- EVIDENCE

PRESENTED IN THE TRIAL COURT AND

NO DRUGS WERE FOUND DURING THE

SECOND STOP AND NOTHING TO

SUPPRESS.

>> WE DON'T KNOW HOW MANY TIMES

ALDO ALERTED TO AND HAS PEOPLE'S

VEHICLES SEARCHED, AND NO DRUGS

WERE FOUND AND THAT IS MY

CONCERN IN THESE CASES, WHERE

WE'RE GIVING THESE DOGS THIS

SUPER HUMAN ABILITY, WITHOUT

REALLY QUESTIONING HOW

TRUSTWORTHY ARE THE DOGS AND

THAT IS YOUR POINT.

>> THAT IS ME POINT, AND ANOTHER

REASON, FEES FIELD PERFORMANCE

RECORDS ARE SO IMPORTANT IS

BECAUSE TRAINING AND

CERTIFICATION MEANS DIFFERENT

THINGS IN DIFFERENT CASES.

>> EXPLAIN A LITTLE BIT ON THAT,

IS THIS RECORD, THOUGH,

SUFFICIENT, TO MAKE THE -- TO

COME TO COME CONCLUSION AS A

MATTER OF LAW THE TRAINING AND

CERTIFICATION PROCESS IS LACKING

IN SOME WAY.

>> THIS PARTICULAR DOG, WE

BELIEVE IT IS, YOUR HONOR, HE

HAD 1 0 HOUR TRAINING PROGRAM

WITH THE ACOSTA POLICE

DEPARTMENT.

>> WENT TO ALABAMA.

>> JANUARY OF 2004, THE INITIAL

TRAINING, AND THE HANDLER WAS A

SEMINOLE COUNTY SHERIFF AND

FEBRUARY OF '04 HE RECEIVED THE

CERTIFICATION FROM AN

ORGANIZATION CALLED RUGBY, AND,

THAT INVOLVED THE RECORD, HAS

THE EXHIBIT OF THE CERTIFICATION

AND THE FORM, AND THAT INVOLVED

WHETHER HE SUCCESSFULLY FOUND

DRUGS PRESENT, THE SIX DRUGS HE

WAS TRAINED TO ALERT TO AND ALSO

THE FORM THAT WAS USED SAID

INSTRUCTIONS FOR OBTAINING YOUR

ONE YEAR DRUG BEAT CERTIFICATION

WHICH THE OFFICER ATTAINED IN

FEBRUARY 2004.

AND THE SEARCH IN THE CASE WAS

IN JUNE OF 2006, 28 MONTHS

LATER.

AND AFTER THAT, IN JULY OF 2005,

THE DEPUTY IN THIS CASE ACQUIRED

THE DOG, THE NEXT SEMINAR, THE

ONLY SUCCEEDING SEMINAR WAS IN

FEBRUARY, 2006, 40 HOURS --

>> ISN'T THAT WHY THE TOTALITY

OF THE CIRCUMSTANCES MAKES

SENSE?

WE, PERHAPS, HAVE BEEN ALLOWING

TOO MUCH EMPHASIS ON FIELD

PERFORMANCE, AND IF SOMEBODY IS

FRAMED, SAY THEY WENT TO THE

U.S. CUSTOMS SERVICE SCREENING

FROM THE DESCRIPTION, IS

TOP-NOTCH -- TRAINING WHICH FROM

THE DESCRIPTION IS TOP-NOTCH

TRAINING AND HAS THAT KIND OF

FOLLOW-UP MAYBE THE TRAINING AND

CERTIFICATION IN THAT CASE WILL

SHOW THAT THERE IS RELIABILITY

OF THAT DOG, BUT, WITHOUT

UNIFORM STANDARDS IN THE CASE,

ISN'T THAT -- ISN'T THAT WHY YOU

ARE SAYING WE NEED TO RELY ON

MOORE, BUT I'M STILL NOT SURE

RELYING ON FIELD PERFORMANCE

RECORDS IS GOING TO BE, YOU

KNOW, THE WAY THE STATE CARRIES

ITS BURDEN, IS THE FACT THE

TRAINING AND CERTAIN FICTION IN

THIS CASE NOT UNIFORM, ANOTHER

CONCERN?

>> IT IS A CONCERN.

IN THE ABSENCE OF EX-STINGS

TRAINING AS PART OF THE TRAINING

REGIMENT AND THE ABSENCE OF

UNIFORM STANDARDS THE TESTIMONY

IS THAT FLORIDA HAS NO STANDARD,

THAT THEY HAVE NO STANDARDS FOR

DRUG DETECTOR DOGS AND IN THE

ABSENCE OF THAT, A RENEWED

CERTIFICATION WITHIN A YEAR

PREVIOUS TO THE ALERT IN THIS

CASE, REALLY YOU HAVE VERY

LITTLE TO GO BY TO SHOW THAT

THIS DOG IS CURRENTLY AN

ACCURATE PREDICTOR OF PROBABLE

CAUSE.

THAT GAP COULD BE MADE UP WITH

THE FIELD PERFORMANCE RECORDS,

THE DOG'S SUCCESS RATE, THAT

WASN'T DONE IN THIS CASE.

>> LET ME GO BACK TO THE STOP

THAT OCCURRED AFTER THE STOP

THAT IS REALLY AT ISSUE HERE,

WHETHER THE DRUGS SHOULD HAVE

BEEN SUPPRESS ORDER NOT AND WE

CAN'T IN THE TOTALITY OF THE

CIRCUMSTANCES, ANALYSIS OF

PROBABLE CAUSE, CANNOT CONSIDER

SOMETHING THAT HAPPENED AFTER

THE OFFICER MADE THE PROBABLE

CAUSE DETERMINATION, CAN WE?

IN THE NORMAL COURSE OF EVENTS,

NO.

>> IN WHAT COURSE OF EVENTS

COULD WE POSSIBLY DO THAT?

HOW CAN THE OFFICER BE CHARGED

WITH KNOWLEDGE OF SOMETHING THAT

HAPPENS IN THE FUTURE?

>> THAT EVIDENCE WAS PRESENTED

BELOW THE STATE DID NOT OBJECT

TO THAT EVIDENCE BELOW, THE

TRIAL COURT CONSIDERED THAT

EVIDENCE IN FINDING --

>> WOULDN'T THE TRIAL COURT

PROPERLY REJECT -- AND WHEN WE

ASSUME THE TRIAL COURT PROPERLY

REJECTED EVIDENCE OF FUTURE

CONDUCT, THE OFFICER COULD NOT

POSSIBLY HAVE KNOWN ABOUT, AT

THE TIME OF THE STOP.

>> THE MAGISTRATE AFTER THE FACT

WAS DETERMINING WHETHER PROBABLE

CAUSE EXISTED BASED UPON THE

DOG'S PERFORMANCE.

IN AN AFTER-THE-FACT ANALYSIS

THAT IS WHY IT WAS PRESENTED BUT

I CAN'T STAND BEFORE YOU AND

TELL YOU TODAY, THAT UNDER THE

CASE LAW, THAT IS A RELEVANT

CONSIDERATION.

>> WITH THAT, MR. GIFFORD, YOU

HAVE USED MORE THAN YOUR TIME.

IN ARGUMENT HERE TODAY.

>> THANK YOU, YOUR HONOR.

>> PLEASE THE COURT, SUSAN

SHANAHAN FOR THE STATE OF

FLORIDA, HELP ME CLEAR SOMETHING

UP, PLEASE.

>> TALK INTO THE MIC AND KEEP

YOUR VOICE UP.

>> THAT BETTER?

DOGS ARE NOT TRAINED TO DETECT

NARCOTICS.

DOGS ARE TRAINED TO DETECT THE

ODOR OF NARCOTICS AND TRAINED TO

DETECT RESIDUAL ODORS, THAT IS

THEIR JOB AND THAT WHAT IS THE

DOG DID IN THE CASE AND HE DID

HIS JOB.

>> I THINK THAT IS A HUGE

QUESTION.

BETWEEN WE KNOW FOR EXAMPLE THAT

ON CURRENTS THERE ARE ODORS

ON... IF A DOG IS NOT TRAINED TO

DISTINGUISH BETWEEN DRUGS THAT

ARE -- ODOR OF DRUGS THAT ARE IN

A VEHICLE, VERSUS SOMETHING THAT

MAY HAVE BEEN IN A VEHICLE TWO

WEEKS BEFORE, HOW CAN THAT DOG

BE A PREDICTOR OF THE PROBABLE

CAUSE AT THAT TIME WHEN THEY

ALERT, THEY ARE ALERTING TO

DRUGS IN THE VEHICLE AND ISN'T

THAT WHAT -- THE MATHESON CASE,

THE CONCERN IS?

IS THAT EVERYBODY SINCE WE ARE

GOING TO USE THESE DOGS, AT

EVERY TRAFFIC STOP, PRESUMABLY

AT SOME POINT AND SINCE, EVERY

VEHICLE MAY HAVE A REASON THAT

IT HAS SOME RESIDUAL ODOR, THAT

WE ARE SUBJECTING INNOCENT

CITIZENS TO SEARCHES OF THEIR

VEHICLES, IF WE DON'T HAVE DOGS

THAT CAN DISTINGUISH BETWEEN

DRUGS THAT ARE IN THE VEHICLE AT

THE TIME, OR SOMETHING THAT

EITHER IS A FALSE ALERT, OR

SOMETHING THAT HAD BEEN THERE IN

THE PAST.

>> NO, IT'S LIKE A HUMAN

OFFICER, WHO SMELLS MARIJUANA

EMANATING FROM A VEHICLE.

HE ABSOLUTELY HAS PROBABLE CAUSE

TO SEARCH THE VEHICLE.

IF THERE IS NO MARIJUANA FOUND

HE STILL HAD PROBABLE CAUSE TO

SEARCH THE VEHICLE.

SAME WITH THE DOG.

IT DOESN'T MEAN HE DIDN'T HAVE

PROBABLE CAUSE AND MATHESON IS

EXPECTING ABSOLUTE CERTAINTY.

>> HOW DO WE KNOW, WHEN I'M

ASKING IN A RECORD, HOW DO WE

KNOW WHETHER -- IF DRUGS --

FIRST OF ALL, IF YOU DON'T KEEP

TRACK OF THE ARRESTS -- I MEAN,

THE STOPS WHERE ALDO ALERTS.

AND NO DRUGS ARE FOUND, WE HAVE

NO BASIS TO PREDICT AT LEAST IN

THE FIELD HIS PERCENTAGE OF

ACCURACY.

>> BECAUSE YOU CAN'T DETERMINE

IN THE FIELD A DOG'S --

>> ARE YOU TELLING ME ALL THE

APPELLATE COURTS AROUND THE

STATE -- THE COUNTRY THAT HAVE

SAID THIS DOG IS 80% ACCURATE,

WHEREAS THIS DOG IS 8% ACCURATE

AND THEY LOOK AT ONE OF THE

FACTORS, THE FIELD PERFORMANCE

RECORDS, AND ALL OF THOSE

JURISDICTIONS, WHICH KEEP THOSE

RECORDS, ARE KEEPING THINGS THAT

ARE MEANINGLESS.

>> I'M NOT SAYING THEY ARE NOT

MEANINGLESS, I'M SAYING THEY ARE

NOT PROBATIVE OR DETERMINATIVE

TO PROBABLE CAUSE.

THE STATE DOESN'T HAVE TO BRING

THEM INTO SHOW PROBABLE CAUSE.

>> WHY -- BUT, IT IS ONE THING

TO SAY THE STATE DOESN'T HAVE TO

BRING THEM IN.

AND THE BURDEN IS NOT ON YOU TO

KEEP THE RECORDS AND BRING THEM

IN, BUT, IF THEY EXIST AND FOR

WHAT HAVE REASON THEY HAVE BEEN

KEPT, WHY ISN'T IT PROBATIVE, IF

THE RECORDS SHOW THAT IT COULD

BE INTERPRETED AS SHOWING THAT

THE DOG IS UNRELIABLE, WHY

SHOULDN'T THE DEFENSE AT LEAST

BE ABLE TO BRING THOSE RECORDS

IN, AND SAY, HEY, THIS -- THE

OFFICER SHOULD HAVE KNOWN, THIS

DOG WAS UNRELIABLE, BECAUSE OF

WHAT THESE RECORDS SHOW.

>> THEY SHOULD BRING THEM IN,

BUT THAT YOU WON'T SHOW THAT THE

DOG IS RELIABLE OR NOT.

BECAUSE THE ONLY TIME YOU CAN

DETERMINE A DOG'S RELIABILITY IS

IN A CONTROLLED ENVIRONMENT.

AND THAT IS IN TRAINING AND

CERTIFICATION.

>> IS THAT IN THE RECORD IN THIS

CASE.

>> YES, IT IS.

>> FROM THE POLICE OFFICER.

>> YES, IT IS.

THE TRAINING RECORDS WERE

PROVIDED AS WELL AS THE

TESTIMONY FROM THE OFFICER,

REGARDING THE DOG'S TRAINING AND

HE NEVER FALSELY ALERTED IN

TRAINING AND NEVER FALSELY

ALERTED INSERT FICTION, THE DOG

HAS A 100% RECORD IN TRAINING

CERTIFICATION AND NEVER FALSELY

ALERTED.

THE PROBLEM WITH THE FIELD WHEN

YOU GET INTO THE FIELD ACTIVITY

REPORTS AND SAYING THIS DOG HAS

A TERRIBLE RECORD IN THE FIELD,

IS THAT YOU DON'T KNOW, THAT HE

MAY HAVE BEEN INTO RESIDUAL

ODORS LIKE A HUMAN OFFICER AND

IT DOESN'T MEAN DRUGS WERE JUST

REMOVED FROM THE VEHICLE OR LIKE

IN THIS INSTANCE WE HAVE A METH

ADDICT, WHO SAID I USED METH

EVERY OTHER DAY AND COOK IT IN

MY HOME AND THE VEHICLE IS

PROBABLY PERMEATED WITH THAT

ODOR AND --

>> WITH IT THAT IN MIND WHY DID

ALDO ONLY ALERT TO THE HANDLE,

WHICH ANYBODY, THE -- COULD

HANDLE OUTSIDE OF THE VEHICLE

AND USUALLY YOU SEE THEM

ALERTING A TRUNK OR THE REAR

PASSENGER SIDE AIN'T IS IMPRESS

Y IF WHEN THEY GO SPECIFICALLY

TO A SPOTTED OPTION AND WE'VE

SEEN CASES WHERE THEY ALERT TO

THE HOOD OF THE VEHICLE, AND THE

ONLY PLACE THE DRUGS ARE FOUND

ARE IN THE TRUNK AND YOU WONDER,

WAIT A SECOND, HOW ACCURATE IS

THIS DOG?

EVEN IN THAT CASE, THEY ARE NOT

ALERTING TO WHERE THIS DRUGS ARE

FOUND.

>> IT APPEARS IN THE RECORD THAT

HE WAS SITTING IN THE VEHICLE AT

THE TIME THAT THE SNIFF WAS

MADE.

AND IT IS VERY POSSIBLE THAT THE

-- HE STARTED AT THE DRIVER'S

SIDE DOOR AND WHEN HE GOT TO THE

SEAM OF THAT DOOR THE DOG

ALERTED AND HE WAS ASKED ON

CROSS-EXAMINATION WHY DID HE

ALERT TO THE DOOR HANDLE AND

THIS IS JUST THE OFFICER WITH --

SURMISING THE DOG ALERTED TO THE

HANDLE, HE'S THE OWNER OF THE

VEHICLE AND USED METH CONSTANTLY

AND SMELLED IT ON THE DOOR

HANDLE AND IT IS ALSO PERFECTLY

POSSIBLE THAT HE SMELLED FROM

THE SEAM COMING FROM THE INSIDE

OF THE CAR, THE ODOR OF METH,

EMANATING FROM THE VEHICLE

BECAUSE AROUND THE DOOR HANDLE

YOU WILL HAVE SEAMS AND THE ODOR

COMING FROM THE INSIDE OF THE

VEHICLE.

THE DOG MAY HAVE SNIFFED, RIGHT

THEN, AND MAY BE WHERE THEY

STARTED THE SNIFF SEARCH.

OR THE SNIFF AND HE ALERTED

RIGHT AWAY.

>>... WINDOW.

>> NO, THE TESTIMONY WAS

COMPLETELY STRICKEN FROM THE

RECORD, THE DEFENDANT'S

TESTIMONY AND IT WAS STRICKEN

FROM THE RECORD AND WE DON'T

KNOW WHETHER THE WINDOW WAS OPEN

OR NOT.

>>... [INAUDIBLE] DRUGS THE DOG

WAS TRAINED TO SNIFF.

>> HE WAS TRAINED TO SNIFF IN

HIS CERTIFICATION AND ALSO THE

TESTIMONY FROM THE OFFICER S,

INDICATES HE WAS TRAINED TO

DETECT METHEMPHETAMINE, COCAINE,

CRACK COCAINE, HEROIN AND

MARIJUANA.

>> WHY -- THEN HE WAS ASKED --

ASKED IF HE WAS TRAINED TO

DETECT ALCOHOL, NO OR

PSEUDOEPHEDRINE WHICH IS THE

DRUG THAT WAS FOUND HERE.

IS THAT A TRICK QUESTION,

BECAUSE THE PSEUDOEPHEDRINE IS

THE NOT SEPARATELY CERTIFIED, IS

THAT -- DID THE RECORD SHOW

THAT?

THAT THREW ME OFF.

>> EVERYTHING FOUND IN THE

VEHICLE WERE PRECURSORS FOR

MAKING METH AND HE SAID I COOK

METH AND I USE IT OFFER OTHER

DAY AND METH WAS NOT ACTUALLY

FOUND IN THE VEHICLE BUT HE DID

ADMIT TO MAKING IT AND USING IT.

AND THE DOG ALERTED TO THE ODOR

OF METHEMPHETAMINE.

AND THE TOTALITY OF THE

CIRCUMSTANCES, THE TRIAL COURT'S

POINT OF VIEW WOULD BE

CERTAINLY, STATE HAD PROBABLE

CAUSE TO SEARCH THE VEHICLE ONCE

THE DOG ALERTED AND LOOKING AT

EVERYTHING IN THE CASE.

>> IF THE DEFENSE -- THE FIELD

PERFORMANCE RECORDS ARE NOT A

RELIABLE INDICATOR OF THE DOG'S

PERFORMANCE, THEN WHAT DO YOU

SAY THE DEFENSE CAN BRING IN, TO

DEMONSTRATE THAT THIS DOG IS NOT

A RELIABLE DOG?

I MEAN, IF YOU ALREADY HAVE

PROBABLE CAUSE BECAUSE HE

ALERTED AND HIS PERFORMANCE IN

THE PAST IS NOT REALLY RELEVANT,

WHAT CAN THE DEFENDANT BRING IN.

>> THEY CAN STILL BRING IN THOSE

RECORDS AND ARGUE THEM AND BRING

IN THE VETERINARY RECORDS AND

BRING IN AN EXPERT IF THEY WANT

DO --

>> WHICH RECORDS.

>> VETERINARY RECORDS AND BRING

IN AN EXPERT AND IT IS LIKE A

CITIZEN INFORMANT AND THE DOG IS

--

>> YOU ARE NOT ARGUING THEN THAT

THOSE FIELD RECORDS ARE NOT

RELEVANT.

JUST IT'S YOUR POSITION YOU

THINK YOU WOULD ARGUE THEY ARE

THE NOT PROBATIVE.

>> THEY ARE NOT DETERMINATIVE OF

RELIABILITY, YES.

>> LET ME GO BACK TO THIS.

IF THE POLICE DEPARTMENT, THE

LAW THAT -- THE SECOND DISTRICT

NOW, THEY'VE BEEN KEEPING THEM

AND I DON'T KNOW WHAT HAS

HAPPENED DOWN THERE AND MAYBE

DOGS NOW ARE BETTER TRAINED

BECAUSE THEY ARE MORE CONCERNED

ABOUT IT BUT IF WE DON'T --

WOULD SAY THAT IT IS OKAY FOR

POLICE DEPARTMENTS NOT TO KEEP

RECORDS OF WHEN THERE HAS BEEN

AN ARREST OF AN INNOCENT

CITIZEN, WITH NOTHING FOUND,

THAT THE POLICE DEPARTMENT HAS

NO OBLIGATION TO KEEP THOSE

RECORDS, AND THEY CAN ONLY --

HAVE TO KEEP RECORDS OF WHEN

SOMETHING POSITIVE IS DONE, WE

WON'T HAVE A WAY FOR -- WHETHER

IT IS THE DEFENSE THAT BRINGS IT

IN OR THE STATE, TO AT LEAST

LOOK AT THAT FACTOR.

FIELD PERFORMANCE, AS ONE PART

OF THIS TOTALITY OF

CIRCUMSTANCES.

>> EVERY TIME AN OFFICER MAKES A

CALL, A HUMAN OFFICER MAKES A

CALL AND THERE'S NOTHING -- HE

DOESN'T MAKE AN ARREST, A REPORT

IS NOT MADE, TYPICALLY AN

OFFICER --

>> I UNDERSTAND THAT, BUT WHAT

-- SEE WE CAN CROSS EXAMINE THE

OFFICER, WE CAN'T CROSS EXAMINE

THE DOG.

>> BUT YOU CAN CROSS EXAMINE THE

--

>> DON'T KNOW IF THE DOG HAD A

COLD.

>> YOU CAN CROSS EXAMINE THE

HANDLER AND LET ME CLEAR

SOMETHING ELSE UP THE U.S.

CUSTOMS DOES NOT TRAIN DOGS OFF

OF RESIDUAL ODORS, AND MATHESON

IS INCORRECT IN SAYING THAT.

CUSTOMS DOES THEIR TRAINING LIKE

OUR LAW ENFORCEMENT AGENCY DOGS

AND THEY ARE NOT TRAINED TO

IGNORE RESIDUAL ODORS, THEY ARE

TRAINED TO DETECT THEM.

>> WHAT MATHESON RELIED ON FOR

MAKING THAT POINT WAS SOMETHING

THAT WAS SAID THAT HAS GOTTEN --

MATHESON HAS GOT NO BACKUP

CITATION, OTHER THAN THIS WAS

SOMETHING THAT WAS REPRESENTED

IN A LAW REVIEW ARTICLE.

>> THAT'S CORRECT.

THAT'S CORRECT AND THE LAW

REVIEW ARTICLE IS NOT EXACTLY

WHAT IT SAYS.

DOGS ARE TRAINED TO DETECT

RESIDUAL ODORS AND EXTINCTION

TRAINING IS NOT TO TELL THE DOG

NOT TO ALERT TO RESIDUAL ODORS,

EXTINCTION TRAINING IS NOT TO

ALERT TO COFFEE GROUNDS OR WHAT

MASKING ODORS THAT MIGHT MASK

THE ODOR.

>> IS IT THE STATE'S POSITION

THE THAT THE FIELD

PERFORMANCE-TYPE RECORDS ARE OF

ABSOLUTELY NO USE AND DO NOT --

WILL NOT ENHANCE OR LEVEL THE

PLAYING FIELD OR GIVE US MORE

INFORMATION THAT IS GOOD

INFORMATION?

IS THAT THE STATE'S POSITION.

>> IT'S THE STATE'S POSITION

THAT FIELD ACTIVITY REPORTS MAY

BE -- ARE NOT DETERMINATIVE.

>> I UNDERSTAND THAT.

THAT IS NO THE MY QUESTION.

>> MAY BE RELEVANT TO DETERMINE

PROBABLE CAUSE THE STATE NEEDS

TO COME IN AND NEEDS TO SHOW

TRAINING, NOT JUST SAY IT, NEEDS

TO SHOW TRAINING, NEEDS TO SHOW

CERTIFICATION, AND AT THAT

POINT, THEY HAVE -- ESTABLISHED

PROBABLE CAUSE.

>> I'M NOT SURE YOU ANSWERED MY

QUESTION.

>> I'M SORRY.

>> I'M ASKING SPECIFICALLY ABOUT

THE FIELD PERFORMANCE RECORDS,

THOSE TYPES OF THINGS, IS IT THE

STATE'S POSITION THAT THEY ARE

REALLY WORTHLESS AND DON'T

REALLY ENHANCE WHAT IS GOING ON,

THAT THIS IS NOT SOMETHING THAT

IS REALLY RELIABLE, OR --

>> YES.

>> THE STATE'S POSITION.

>> YES.

REALLY, NOT THAT THEY CAN'T BE

USED BUT --

>> I UNDERSTAND.

>> IN FACT --

>> DOESN'T SHOW US MUCH IS WHAT

YOU ARE SAYING.

>> OHIO, THE SUPREME COURT IN

OHIO FOUND THEY ARE NOT

DISCOVERABLE AND IF YOU LOOK AT

THE FOOTNOTES FROM A LOT OF

THESE CASES THEY SAY WE

UNDERSTAND THE FIELD ACTIVITY

REPORTS REALLY DON'T -- ARE THE

NOT AS MUCH VALUE BECAUSE THEY

DON'T TELL US FALSE --

>> THIS IS ME PROBLEM, I THINK

WE HAVE GONE, LIKE WHEN YOU NOW

REALIZE THERE ARE SO MANY

FORENSIC TESTS THAT TEN YEARS

AGO WE THOUGHT WERE RELIABLE AND

NOW WE ARE FINDING THEY ARE NOT,

THE FBI WOULD GET ON TALK ABOUT

COMPARATIVE BULLET ANALYSIS AND

WE MADE DETERMINATIONS AND, YOU

KNOW, CONVICTIONS ENTER BASED ON

EVIDENCE THAT SEEMED GOOD AND I

THINK THAT WHAT HAS EVOLVED HERE

IS THAT THE USE OF THE DOG, THE

IDEA OF THE TRAINED DOG, SAYS

THAT THERE IS -- IN A WAY, THERE

IS MINIMUM INTRUSION IF THE DOG

DOESN'T ALERT, THE CITIZEN CAN

GO ON HIS OR HER WAY AND IF THE

DOG ALERTS THERE IS THIS

INTRUSION AND SO, IT IS UNIQUE

IN THE SORT OF THE ANNALS OF

FOURTH AMENDMENT LAW AND MY

CONCERN IS WE HAVE BEEN HAVING

THESE CASES -- DOG CASES FOR A

TEN-YEAR PERIOD AND THE COURT

DISCHARGED JURISDICTION TWICE

AND I THINK WHAT WE WERE HOPING

FOR IS THAT IN ONE CASE, MAYBE

WHERE THE STAKES WERE REALLY

HIGH, IN TERMS OF THERE BEING,

YOU KNOW, A LOT OF DRUGS FOUND

OR WHATEVER, WE'D HAVE THE WHOLE

RECORD OUT THERE.

YOU'D HAVE THE STATE REALLY

PUTTING IT -- PUTTING ON ALL OF

THIS, SO THAT WE COULD HAVE A

RECORD TO BE ABLE TO GIVE

GUIDANCE RATHER THAN SAYING NO,

NOW, WE DON'T KNOW, ARE THE

PERFORMANCE RECORDS HELPFUL OR

NOT HELPFUL, ARE THEY IMPORTANT

OR NOT IMPORTANT AND I FEEL LIKE

WE ARE BACKWARD -- I HAVEN'T

WATCHED THE GIBSON ORAL ARGUMENT

WHERE WE HAVE BEEN AND WE ARE

JUST NOT SURE AND SINCE WE ARE

TALKING ABOUT SUCH AN IMPORTANT

THING, EVERYONE SEEMS TO AGREE,

IF THE SNIFF -- THE DOG SNIFFS

AND IT IS POSITIVE, THAT -- AND

THE DOG IS RELIABLE THAT IS

PROBABLE CAUSE TO SEARCH AND

THAT IS A VERY SIGNIFICANT

INTRUSION AND WE WANT TO BE SURE

ABOUT THIS AND YOU ARE TELLING

US, NO, THE FIELD PERFORMANCE

RECORDS ARE NOT RELIABLE.

AND I'M JUST CONCERNED THAT WE

DON'T HAVE A RECORD HERE, TO BE

ABLE TO EVALUATE THAT STATEMENT

AND YOU SAY, YEAH, THE POLICE

OFFICER SAID IT, SO WE SHOULD

ACCEPT THAT.

>> BUT YOU DO HAVE A RECORD, YOU

HAVE THE DOG'S TRAINING RECORDS

--

>> WHAT TRAINING RECORDS WERE

THESE.

>> THESE ARE -- HE TRAINED FOUR

HOURS A WEEK WITH HIS HANDLER ON

DIFFERENT DRUGS AND THIS WAS

FROM NOVEMBER '05 TO JULY '06.

FOUR HOURS A WEEK WITH THE

HANDLER ON ALL OF THESE

DIFFERENT DRUGS AND WOULD HIDE

THEM IN EIGHT VEHICLES AND TWO

WOULD BE BLANK AND SIX WOULD

HAVE DRUGS.

>> IS THAT REALLY THE KIND OF

TRAINING AND CERTIFICATION THAT

WE OUGHT TO BE LOOKING TO, WHEN

TALKING ABOUT THE FUNDAMENTAL

RIGHT OF PRIVACY.

>> YES --

>> SEEMS TO ME WE OUGHT TO BE

TALK ABOUT THE CERTIFICATION OF

SOME INDEPENDENT NATURE RATHER

THAN SOMEONE WHO HAS AN INTEREST

IN THIS BECAUSE THE DOG

INTERACTS WITH ITS HANDLER AND

TRAINER AND IT IS THE -- YOU

KNOW, AN OFFICER'S STOP, LET'S

BE REALISTIC HERE, I MEAN, THE

-- I'M NOT SURE YOU WOULD CALL A

POLICE OFFICER WITH A DRUG DOG

AN INDEPENDENT SOURCE WHEN IT IS

OUT IN THE MIDDLE OF THE STOP

SOMEPLACE.

THAT IS WHAT CONCERNS ME.

IS WHETHER WE HAVE SUFFICIENT

CERTIFICATION, AND TRAINING

PROCEDURES.

THAT HAVE BEEN ESTABLISHED, AND

THAT ARE UNIFORM IN SOME WAY,

AND CONSISTENT.

I AM A LITTLE LEERY OF JUST -- I

GO OUT AND TRAIN MY DOG DURING

THE WEEK AND I'M THE ONE WHO IS

TESTIFYING.

>> RIGHT, BUT HE HAS THE

TRAINING RECORDS, AND HE TRAINS

WITH DIFFERENT -- TRAINING

RECORDS AND TRAINS WITH

DIFFERENT AGENCIES AND HE TRAINS

WITH INDEPENDENT AGENCIES.

>> IS THERE ENOUGH UNIFORMITY

WITH THAT, WE HAVE A SUFFICIENT

CONFIDENCE WE HAVE THOSE KINDS

OF ORGANIZATIONS THERE, WE TRULY

EVENT ON A PROPER INTERVAL AND

THOSE KINDS OF THINGS.

>> YES.

THERE ARE THREE OR FOUR NATIONAL

INDEPENDENT CERTIFICATION

AGENCIES THAT GO TO THESE

DIFFERENT LAW ENFORCEMENT

AGENCIES AND CERTIFY THEIR DOGS

FOR THEM, JUST TO BE SURE AND

THEY DON'T HAVE TO DO IT.

THEY DO IT ANYWAY AND WANTED TO

BE SURE THEIR DOGS ARE

PERFORMING ACCURATELY.

>> WHERE -- ONE OF MR. GIFFORD'S

ARGUMENT SEEMS TO BE THERE IS NO

REAL STANDARD FOR THIS IN THE

THE STATE OF FLORIDA, AND THAT,

YOU KNOW, THE PINELLAS POLICE

DEPARTMENT CAN GO TO XYZ AGENCY

AND LEON COUNTY SHERIFFS OFFICE

CAN GO TO SOME OTHER PLACE, AND

THAT WE DON'T KNOW IF THESE DOGS

ARE ACTUALLY GETTING THE KINDS

OF TRAINING AT ALL OF THESE

DIFFERENT PLACES THEY NEED TO --

IN ORDER TO BE RELIABLE.

>> ISN'T THAT BEGAN A TRIAL -- A

DETERMINATION FOR THE TRIAL

COURT?

>> WELL, WHO -- HOW DOES THE

TRIAL COURT GET TO THAT POINT.

>> IT IS YOUR BURDEN.

>> IT IS OUR BURDEN.

>> OR IS IT THE -- THE

DEFENDANT'S BURDEN.

>> IS THE STATE'S BURDEN TO

ESTABLISH PROBABLE CAUSE AND

AGAIN WE'D DO THAT THROUGH THIS

TRAINING AND CERTIFICATIONS.

AND THAT GOES TO CREDIBILITY OF

THE DOG AND IF THE TRIAL COURT

DOESN'T FIND THERE IS SUFFICIENT

CERTIFICATION, OR SUFFICIENT

TRAINING, THEN WE HAVEN'T

REACHED OUR BURDEN.

>> THE TRAINING THAT HE GOT FROM

ALDO COMPLETED THE 120 NARCOTICS

DETECTION COURSES WITH OPPAGA,

THE OPPAGA POLICE DEPARTMENT IN

2004, DO WE HAVE THOSE RECORDS.

>> YES, WE DO AND SHOWS, HIS

SUCCESS -- WHAT WAS THE SUCCESS

RATE, IN THAT.

>> THE INITIAL -- THE 120 HOURS

OF INITIAL TRAINING, HE FINISHED

THE TRAINING TO BECOME A DRUG

DETECTION DOG AND HE PASSED

THAT.

>> WHAT RECORDS ARE THERE THAT

WOULD SHOW WHETHER HE WAS AN 80%

DOG, 90% DOG, 8% DOG.

>> AGAIN THE TRAINING RECORDS

FROM NOVEMBER 2005 TO JULY 2006,

TRAINED EVERY WEEK FOR FOUR

HOURS AND --

>> WHEN -- AND WENT OUT BY

HIMSELF WITH THE DOG.

>> NO, HE GOES TO DIFFERENT LAW

ENFORCEMENT AGENCIES, AND HE

SAID SOMETIMES, THREE OR FOR YOU

DIFFERENT AGENCIES HE GOES TO

AND HE GOES WITH OTHER OFFICERS,

AND GOES TO DIFFERENT VEHICLES,

AND I THINK ONE OFFICER WOULD

HIDE THE DRUGS IN THE VEHICLE

AND HE AND HIS DOG WOULD GO TO

THESE VEHICLES.

>> HE'S TRAINED TO DO -- I MEAN,

IT SEEMS TO ME THAT, YOU KNOW,

THE REGULAR OFFICER WHO IS JUST

A HANDLER OF THE DOG, YOU ARE

SAYING THAT THAT OFFICER IS

TRAINED TO TRAIN THE DOG?

>> NO, HE AND THE -- NO, THE DOG

WAS TRAINED BY ANOTHER AGENCY.

>> I MEAN, SOME TIME AGO, BUT,

NOW, YOU ARE SAYING THAT

OFFICIAL --

>> TRAINED TOGETHER.

>> THE HANDLER NOW CAN THEN TAKE

OVER THE TRAINING.

THAT IS WHAT IT SOUNDS LIKE.

>> YES.

ABSOLUTELY.

>> AND UNDER WHAT -- I MEAN, WAS

HE TRAINED TO BE A TRAINER.

>> YES.

HE'S A HANDLER.

HE HAS SPECIAL TRAINING AND WENT

THROUGH A 160 HOUR COURSE TO BE

A CANINE HANDLER AND NOT A

POLICE OFFICER THAT CAME OFF THE

STREET TO BE WITH THE DOGS, HE

HAS SPECIAL TRAINING AS WELL.

>> AND THOSE RECORDS OF THE FOUR

HOURS A WEEK SHOW HE IS 100%

ACCURATE DOG.

>> YES, NEVER FALSELY ALERTED IN

TRAINING OR IN CERTIFICATION.

>> THEY PUT DRUGS IN 8 OUT OF

THE TEN BUILDINGS.

>> AND USED BUILDINGS AND WEAR

HOUSES, BEGINNING IN JANUARY '06

THE RECORD BEGAN TO SHOW

BUILDINGS AND WEAR HOUSES AND

WOULD MAKE HIDES AND NEVER

FALSELY ALERTED IN THOSE AS

WELL, AND WANTED TO USE

DIFFERENT TYPES OF LOCATIONS

WITH HIM.

>> DURING THE TRAINING, DO THEY

TAKE THEM TO PLACES OR PUT THEM

INTO SITUATIONS WHERE LIKE IN

THE FIELD, THERE MIGHT BE

RESIDUAL DRUGS ON ANYBODY'S

VEHICLES.

>> NO, AND THE WHOLE POINT IS TO

HAVE A CONTROLLED ENVIRONMENT,

SO THEY KNOW WHETHER THEIR DOG

IS FALSELY ALERTING OR NOT,

BECAUSE, IF HE IS, THEN THEY CAN

CORRECT THAT PROBLEM AND THEY

WANT TO KNOW IF THEIR DOG IS

FALSELY ALERTING AND DON'T WANT

THEIR DOGS TO ALERT FALSELY ON

AN INNOCENT PERSON'S VEHICLE AND

WANT THEM TO BE TRAINED

CORRECTLY.

SO THEY GO INTO THESE CONTROLLED

ENVIRONMENTS AND TRAIN THEM

PROPERLY AND THAT IS WHY

TRAINING RECORDS ARE SO

IMPORTANT, AND FIELD ACTIVITY

REPORTS DON'T REALLY TELL YOU

ANYTHING ABOUT THE DOGS.

FALSE ALERTS IN THE FIELD ARE

NOT POSSIBLE TO DETERMINE.

IT IS OWN TRAINING CERTIFICATION

WHERE YOU CAN TELL WHETHER THE

DOG IS RELIABLE OR NOT.

>> AND THE PREMISE IS THAT A DOG

CANNOT BE TRAINED TO DISTINGUISH

BETWEEN LIVE SCENTS, RESIDUAL

SCENTS OR...

>> IT CAN'T BE DONE, IN THE

CUSTOMS SERVICE WORKBOOK IT SAYS

IF YOU TRY TO DO THAT THE DOG

WILL JUST BE CONFUSED.

SO IT'S IMPORTANT IF THE DOG

MAKES AN ALERT AND YOU DON'T

FIND ANYTHING THAT YOU GIVE HIM

HIS REWARD BECAUSE HE'S ALERTING

TO RESIDUAL ODOR.

AND TO DO OTHERWISE HE'LL BECOME

CONFUSED AND WILL NO LONGER BE A

GOOD DOG TO WORK.

>> AND WITH THAT YOU HAVE USED

YOUR TIME, MR. GIFFORD, I WILL

GIVE YOU ONE MINUTE FOR

REBUTTAL.

>> I WASN'T RELYING ON MATHESON

ABOUT THE EXTINCTION TRAINING

AND I DON'T KNOW WHAT IS THE

CUSTOMS SERVICE WORKBOOK.

>> MATHESON IS ONE TO READ

BECAUSE IT IS A REFERENCE TO A

LAW REVIEW ARTICLE WITHOUT ANY

FURTHER REFERENCE TO EMPIRICAL,

IT IS JUST --

>> MY CERTAINLY SENSE FROM THE

OTHER LITERATURE AND I CANNOT

CITE YOU ANYTHING NOW, THE

EXTINCTION TRAINING IS POSSIBLE,

I DON'T KNOW THE TRUTH OR

FALSENESS OF THAT.

>> IF WE ENDED UP SAYING, NOT

WHAT YOU ARE -- YOU KNOW, YOU

NEED TO PUT IN FIELD PERFORMANCE

RECORDS, BUT THAT WHAT HAS BEEN

STATED IN I THINK FOSTER FROM

THE THIRD DISTRICT AND THE

TENNESSEE SUPREME COURT SAID THE

-- JUST SAYING SOMEONE HAS

TRAINING AND CERTIFICATION IS

NOT ENOUGH, AND THIS IS THE TYPE

OF EVIDENCE THAT WE WOULD EXPECT

THE STATE PUTS IN TO ESTABLISH

PROBABLE CAUSE, BUT, DOESN'T THE

STATE MAKE A GOOD POINT, THOUGH,

ABOUT THE SKILL PERFORMANCE

ISSUE AND THE FACT THAT WE DON'T

KNOW IF THEY WERE FALSELY

ALERTING OR IF IT WAS JUST A

RESIDUAL ODOR -- TIME IS UP, BUT

THAT CONCERNS ME, A GREAT DEAL.

THAT THE FIELD PERFORMANCE

RECORDS MAY NOT THEMSELVES BE

ALL THAT RELIABLE.

BECAUSE OF THAT.

>> I THINK THE STATE IS -- IN

ONE RESPECT WE DON'T KNOW

WHETHER IT IS A FALSE ALERT OR

NOT BECAUSE OF THE PROBLEM OF --

[INAUDIBLE], WE KNOW IT IS --

THE DOG ALERTS AND DRUGS ARE NOT

FOUND IT IS A VERIFIABLE ALERT

AND IS THE DOG AN ACCURATE

PREDICTOR OF THE PRESENCE OF

NARCOTICS AND IF THE DOG HAS A

RECORD, HALF, A THIRD OF THE

TIME, 2/3 OF THE TIME THE DOG

ALERTS AND NO NARCOTICS ARE

FOUND AND THE HANDLER KNOWS

THAT, THEN THE DOG, IS A LESS

ACCURATE PREDICTOR OF DRUGS AND

CANNOT MEET THAT BAR, FOR

PROBABLE CAUSE.

>> LET'S TAKE THIS CASE WHERE

THE OTHER FACTORS OTHER THAN THE

DOG ALERTS, [INAUDIBLE]

ESTABLISH PROBABLE CAUSE.

>> THE NERVOUSNESS OF THE

DEFENDANT, NOTHING MORE.

I SEE I'VE EXHAUSTED MY TIME AND

WOULD LIKE TO CONCLUDE BY SAYING

UNLIKE MATHESON AND GIBSON WE

BELIEVE THE CASE HAS THE PROPER

PEDIGREE TO REACH THE DECISION

ON THE MERITS.

>> THANK YOU VERY MUCH.

[LAUGHTER].

>> AROUND THANK BOTH OF YOU FOR

YOUR ARGUMENTS HERE TODAY.