Citations
- 855 F. Supp. 2d 678
Full opinion text
MEMORANDUM DECISION AND ORDER
VERNELIS K. ARMSTRONG, United States Magistrate Judge.
I. Jurisdiction
Jurisdiction is established under 28 U.S.C. § 1345 which provides that the district courts shall have original jurisdiction over all civil actions, suits or proceedings commenced by the United States. The parties consented to the undersigned conducting all proceedings and entering judgment pursuant to 28 U.S.C. § 636(c) and Fed.R.CivJP. 73.
II. Introduction
This is a forfeiture action filed pursuant to the Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801 to 904. Plaintiff, United States Government is seeking forfeiture of Defendant, $1,032,980.00. Plaintiff asserts that Defendant property is proceeds from illegal drug trafficking activities and/or was used or intended to be used to facilitate illegal drug trafficking in violation of 21 U.S.C. § 841(a). This Court has original jurisdiction under 28 U.S.C. § 1345. This being an in rem forfeiture proceeding, this Court also has jurisdiction pursuant to 28 U.S.C. § 1355 and 21 U.S.C. § 881. Subject matter jurisdiction is established pursuant to 21 U.S.C. § 881 and 18 U.S.C. § 981. Venue is proper pursuant to 28 U.S.C. § 1395.
III. Procedural History
On January 21, 2010 Plaintiff United States Government filed a Verified Complaint in Forfeiture against Defendant $1,033,000.00, asserting a cause of action, under 21 U.S.C. § 881, that Defendant was seized currency that had been used in, had been intended to be used in, or constituted the proceeds from illegal drug trafficking activity. (Docket No. 1).
On January 26, 2010, a Warrant of Arrest In Rem was issued ordering the U.S. Marshals service to seize and detain in its custody Defendant $1,033,000.00 [hereinafter referred to as Defendant $1,032,980.00] and ordering that all persons claiming an interest in Defendant property shall file a claim of interest pursuant to 18 U.S.C. § 983 and Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims within 35 days of actual receipt or publication of the Warrant of Arrest in Rem. (Docket No. 2).
On February 19, 2010, Claimant Anthony Vigna filed a Verified Claim Opposing Forfeiture claiming ownership and/or possessory interest in Defendant $1,032,980.00. (Docket No. 6). On February 24, 2010, Plaintiff filed a Declaration of Publication stating that a Notice of Civil Forfeiture had been posted on an official government internet site, www.forfeiture. gov, advising all parties of their right to file a petition regarding Defendant $1,032,980.00. (Docket No. 7). Subsequent to the filing by Plaintiff of the Declaration of Publication no other persons or entities have come forward claiming interest in or ownership of Defendant.
On June 11, 2010, Claimant filed an Answer of Claimant Anthony Vigna to Government’s Complaint for Forfeiture In Rem with a demand for trial by jury. (Docket No. 14).
On July 30, 2010, in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, District Judge Jack Zouhary issued an Order of Reference, pursuant to consent of parties, that this case be transferred to the undersigned for all further proceedings and entry of judgment. (Docket No. 21).
On March 28, 2011, Claimant filed a Notice of Motion and Motion to Suppress Evidence, with attached Memorandum of Points and Authorities in Support. (Docket No. 36). On April 25, 2011, Plaintiff filed an Opposition to Claimant’s Motion to Suppress. (Docket No. 37). On May 5, 2011, Claimant filed a Reply to Government’s Opposition. (Docket No. 38).
On August 12, 2011, a Hearing was held before this Court on Claimant’s Motion to Suppress. On September 12, 2011, a continuation of the Hearing of August 12, 2011 was held.
On December 1, 2011, Plaintiff filed a Post Hearing Brief in Opposition to Claimant’s Motion to Suppress (Docket No. 53) and Claimant filed a Post Hearing Brief in Support of his Motion to Suppress. (Docket No. 54).
On January 11, 2012, counsel presented Closing Arguments as to Claimant’s Motion to Suppress.
This cause is currently before this Court on Claimant’s Motion to Suppress.
Motion to Suppress and the Exclusionary Rule
The exclusionary rule operates to prevent use of evidence obtained either directly or indirectly by unlawful conduct. Segura v. United, States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). This principal has become established as the “fruit of the poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, in accordance with the exclusionary rule, Claimant seeks suppression of certain evidence obtained following an allegedly illegal stop and subsequent warrantless searches and seizures as relates to Claimant’s challenge to Plaintiffs forfeiture action against Defendant currency.
IV. Factual Background
Set forth below is a narrative of facts and events relevant to the material issues of this case.
A. Traffic Stop
1. Prior to the stop
During the mid to late morning of March 25, 2009, Ohio State Highway Patrol Trooper Alejo Romero and his partner Trooper Stacey Arnold were positioned in their vehicle at a highway crossover strip, near mile marker 58, on Interstate 80 (the Ohio Turnpike). Trooper Romero was the driver of the trooper vehicle and Trooper Arnold was a passenger. In the back seat of the trooper vehicle was K9 Hans, Trooper Romero’s drug detection German Shepard. The weather conditions were wintery and blustery.
At approximately 10:54-10:55 a.m. the Troopers observed a black, 2003, Chevrolet Silverado pickup truck traveling in a westerly direction on the highway. Troopers Romero and Arnold first observed the Silverado when it was east of them as it was traveling on the highway. Trooper Romero indicated that the Silverado appeared to slow down somewhat as it approached the highway crossover strip where the Troopers’ vehicle was located. The Silverado bore a Nevada license plate.
Thereupon, at approximately 10:55 to 10:56 a.m., Troopers Romero and Arnold made the decision to follow the Silverado. The Troopers initiated their pursuit, approached the Silverado and followed the vehicle at a close, observing distance.
The Troopers identified the license plate number and ran a license plate check on the vehicle via the Mobile Computer Terminal (MCT) system and determined that the vehicle was owned by a Cory Steven Daiker of Reno, Nevada. The Troopers noticed several features and characteristics of the Silverado as well as certain behaviors and actions of the driver and passenger of the vehicle.
The unique features or characteristics of the vehicle noticed by the Troopers included that there appeared to be no visible gap between the frame and the bed of the truck, there was the appearance of a new undercoating of paint in the wheel well on the driver’s side of the vehicle and that the wheel well appeared to have been cleaned recently. Also the spare tire, which was mounted on the underside, rear of the bed of the truck, appeared to be positioned unusually low.
Trooper Romero also indicated that he observed the driver of the Silverado looking back at the pursuing trooper vehicle in the driver’s side mirror and that the driver appeared to be nervous and agitated and that his behavior appeared to change upon noticing that he was being followed by an OSHP vehicle. He said that the passenger was also observed to look back on several occasions at the pursuing trooper vehicle through the back window of the cab of the truck.
Trooper Romero claimed that he and Trooper Arnold viewed the Silverado move, swerve or veer onto or across the white line on the passenger side of the highway on three separate occasions during the final, approximately forty-five seconds of their pursuit of the Silverado.
Trooper Romero stated that the first such move or swerve near to or across the right white line, occurred for a brief moment while the Silverado was on an overpass.
The second such move or swerve occurred as the Silverado was proceeding through a curve near mile marker 56 on the highway. This swerve took place approximately one-eighth of a mile after the first move or swerve was observed to have occurred. This swerve may have lasted a few moments longer than the first swerve and involved the Silverado going a bit further astray than in the first swerve, as Trooper Romero claimed he saw the passenger side wheels of the Silverado not only reach and cross the white line but near or make contact with the rumble strip of the highway, further toward the edge of the roadway.
Trooper Romero stated that the third move or swerve occurred shortly after the second one, possibly as a result of an effort to correct the movement of the second swerve, as the Silverado straightened out from the curve. This third touching upon or crossing the white line also took place for only a brief moment.
A total of approximately 45 seconds elapsed between the observation of the first claimed traffic violation and the decision to initiate the stop.
In all, after the Troopers caught up to the Silverado to a close, observing distance, they continued to follow the Silverado for approximately one and one-half minutes. After initiating pursuit and reaching the Silverado the Troopers followed the vehicle for approximately one and one-half miles.
Although they had video and audio recording capabilities, the Troopers did not video record their trailing of the Silverado until they signaled the Silverado to pull over to the berm of the highway at approximately mile marker 55 of the Ohio Turnpike. Only then, as the Silverado turned off the highway and onto the berm of the highway, slowing to a stop, did the Troopers commence to video and audio record this incident.
2. The Stop
At approximately 10:57-10:58 a.m., near mile post 55, Trooper Romero activated his lights and the in-vehicle video camera and audio device, and the Silverado and the trooper vehicle came to a stop off the side of the turnpike, approximately 3 miles west from the crossover where the Troopers first noticed the Silverado.
With the video camera and audio microphone activated, the Troopers exited their vehicle.
Trooper Romero approached the Silver-ado at the front, passenger’s side of the Silverado, requested that the window of the passenger’s side of the cab be lowered, initiated conversation and requested the driver’s license and vehicle registration.
At the same time, Trooper Arnold approached the rear and passenger side of the vehicle and inspected the wheel well, truck bed and spare tire.
The Silverado driver and passenger identified themselves to Trooper Romero as Anthony Vigna (the Claimant, herein) and Steven Curtis. Trooper Romero asked them about the origin and destination of their trip, its purpose and whether they realized they had crossed the white line. He asked Claimant Vigna whether he was intoxicated or sleepy as well as for his driver’s license and vehicle registration. In response to these inquiries, Vigna stated that they were returning to Pittsburgh, California from Scranton Pennsylvania, where they had been for the past several days helping Curtis’s brother move to Scranton.
Vigna stated that the vehicle was registered in Nevada and was owned by his brother (actually his brother-in-law) Cory Daiker. Vigna indicated that he had permission to use the vehicle. Vigna also informed Trooper Romero that his then present address differed from the address on his California driver’s license.
Trooper Romero also asked passenger Curtis for his driver’s license. Romero indicated that he observed Curtis’s hands shaking when he retrieved his license. Curtis was from Arizona. Neither Curtis nor Vigna were owners of the Silverado.
Trooper Romero stated that he noticed the distinct aroma of deodorizer or air freshener from within the cab of the Silverado. He also observed three cell phones and a GPS device in plain view in the cab.
At approximately 11:00 a.m. Trooper Romero advised Vigna and Curtis that the Troopers were going to run their information. He also asked that they roll up the driver’s side window, which had been opened to facilitate conversation between Trooper Romero and Vigna and Curtis.
The Troopers then walked away from the Silverado toward their trooper vehicle. Trooper Romero instructed Trooper Arnold that they were to turn off their audio recording devices. Thereafter, the audio recording devices were turned off, however the in-vehicle video recording continued to operate, as it had continuously from the point where the Troopers initiated the stop.
Romero instructed Arnold to run checks on the drivers’ licenses of Vigna and Curtis.
3. Initiating Use of Detector Dog Hans and the Vehicle Sniff
At approximately 11:01 a.m. Trooper Romero removed K9 Hans from the trooper vehicle to commence a walk-around, vehicle sniff.
From approximately 11:01:50 a.m. to approximately 11:02:11 a.m., Trooper Romero and Hans walked around the Silverado. This first walk/trot around as a free search. Trooper Romero commenced the free search from behind the bed/back end, passenger side of the truck. Trooper Romero held Hans’s leash in his left hand and walked/trotted around the truck in a counterclockwise (as viewed from above) direction, Hans being closer to the vehicle and Trooper Romero being further away.
During this free search Hans was allowed to walk/trot around the vehicle allegedly without his gaze or attention being directed by Trooper Romero in any way other than the Trooper was walking/trotting the dog around the truck. During the free search Hans’s behavior is claimed to have changed twice. Hans’s behavior changed at the driver’s door area at approximately 11:02.00 a.m. The leash became taut when the dog pulled back towards the driver’s door area, sniff-investigated, then left that location on his own to resume the free search. Thereafter, at approximately 11:02:03 a.m., the free search was terminated at the right rear tail light of the Silverado. At approximately 11:02:06 a.m., when Trooper Romero was about to switch to a directed search, Hans showed a second change in behavior and at approximately 11:02:08 a.m. Hans pulled toward the rear portion of the passenger door of the cab of the Silverado. This occurred immediately pri- or to the Romero/Hans team beginning the second or directed/detailed search, Hans began pulling when at the right, rear taillight toward the passenger door, low on the cab door seam on the passenger side.
Trooper Romero then began a directed search at approximately 11:02:14 a.m. The Trooper commenced the directed or detailed search by pointing or placing his right hand to or on the left rear tail light of the Silverado. The Trooper held the leash with his left hand and with his right hand presented areas to Hans to check. During the directed search, Trooper Romero directed Hans’s attention to specific areas using his body to block Hans, hand gestures, including “tapping” and verbal commands. The Trooper never directed Hans to the area of the driver’s door where dog had appeared to pause, briefly, but did not go back to on his own, during the free search.
During the directed search Trooper Romero tapped on different locations on the vehicle, causing Hans to jump up when the Trooper pointed high and to go low when directed toward low points. Hans exhibited an alert by digging at the bottom left corner seam of the passenger rear door. Hans did not positively respond to the area where trooper suspected there might have been a secret compartment at the back end of the truck bed.
At approximately 11:02:24 to 11:02:26 a.m., Hans gave what Trooper Romero interpreted as an alert, i.e., behavior that constituted a final indication of the presence of narcotics, where both of Hans’s front paws were off the ground, both touching/seratching at the vehicle as he dug at the seam of the passenger side, cab door, at bottom left corner.
During the whole time of the dog sniff of the Silverado, both free and directed/detailed, the Trooper’s vehicle video recorder was activated but the audio remained off, as it had been subsequent to the Troopers’ initial encounter with the occupants.
Trooper Romero terminated the deployment of Hans at approximately 11:02:43 a.m. and returned him to the trooper vehicle.
4. After the Dog Sniff
Sometime during or immediately after the dog sniff, Ohio State Highway Patrol Sergeant David Schultz arrived at the stop location.
At approximately 11:04 to 11:06 a.m., first Claimant Vigna then passenger Curtis were instructed to exit the Silverado, at which time they were patted down and then secured in Sgt. Schultz’s vehicle. Trooper Romero advised Vigna and Curtis that he was going to do a vehicle search of the Silverado. Thereafter at approximately 11:07 a.m., the Troopers and Sgt. Schultz commenced an inspection/seareh of the Silverado. They searched inside the cab as well as the bed of the truck, the sides and underneath the rear portion of the bed of the truck. As a result of what they observed the Troopers formed the belief that the Silverado contained a hidden compartment. This process took place over approximately 5 to 10 minutes.
Sgt. Schultz then called X-press Towing, and they agreed to assist in conducting a further search of the Silverado.
Trooper Romero drove the his vehicle to the X-press Towing garage. Trooper Arnold drove the Silverado to the X-press garage. Sgt. Schultz drove his trooper vehicle, with passengers Vigna and Curtis, to the X-press garage.
5. At the Garage
The Troopers, Sgt. Schultz, the Silverado and Vigna and Curtis arrived at the X-press garage some minutes after departing from the location of the stop.
Upon arriving at the garage, the Silverado is put on a hydraulic lift, yielding access to the underside, and further search and inspection of the vehicle, with the assistance of an X-press garage employee, commenced. As they proceeded in their search, the mechanic and Trooper Romero identified what they believed was a hidden compartment at the underside of the vehicle, but did not find readily identifiable access points. The mechanic then drilled a hole though the bottom of the truck bed and inserted a fiberoptic scope, which revealed images of what appeared to be plastic, food saver packages in a compartment under the truck bed. The mechanic removed the scope, and Trooper Romero, with his own eyes, looked through the drilled hole and saw plastic wrapped packages at the edges of the hole.
At approximately 11:41 a.m. Trooper Romero and/or Sgt. Schultz approached Vigna and Curtis and read them a Miranda warning. Both Vigna and Curtis indicated that they understood the Miranda warning. Vigna then asked what was going on, and Trooper Romero explained to him what he had found as the result of his search of the Silverado. Trooper Romero further indicated to Vigna and Curtis that he intended to obtain full access to the hidden compartment and remove its contents. Vigna and Curtis indicated they understood and asked no further questions.
Sometime later the mechanic observed an air bag suspension kit inside the hidden compartment, noticing an air bag at each corner of the compartment. He applied external air pressure to the air bags and opened the compartment along the passenger’s side, at which point plastic food saver bags containing U.S. currency were seen.
The mechanic later determined how to hot wire the hidden compartment suspension system, enabling the compartment to be fully opened. Eighteen separate plastic packages containing U.S. currency were found and removed.
Sgt. Schultz returned to Vigna and Curtis and told them what had happened, at which point Claimant Vigna claimed the money and requested an attorney.
During the time at the garage, additional law enforcement arrived: OSHP Sgt. Tim Root, Trooper Stacy Stidham, and Ohio Bureau Criminal Investigation Criminalist Keith Williamson, all participated in, or were present at, the search/inspection of the Silverado while it was located at the X-press garage. Criminalist Williamson took swabs of the truck bed, including one which came back with a fleck of something that subsequently tested positive for a trace amount of marijuana. Criminalist Williamson performed a vacuum sweep of the truck, and three samples were taken. The officers and troopers made a full inventory of the money and other items that were found in the truck cab or hidden compartment.
The Troopers then informed Vigna and Curtis that they were to be transported to the OSHP Trooper post.
At approximately 3:43 p.m. Vigna and Curtis, along with the seized property, were transported to the Trooper post.
A total of approximately four hours was spent at X-press garage.
6. At the OSHP Toledo Post
Trooper Romero and Sgt. Schultz arrived at the Trooper post along with Vigna, Curtis and the Defendant property. Vigna and Curtis were placed in separate rooms for interviews while at the Trooper post. Each subject was interviewed separately by Sgt. Schultz and/or FBI Special Agent Matt Meyer.
At the Toledo post two drug dogs, K9 Hans (Trooper Romero’s K9 partner) and K9 Ringo tested the currency, and both indicated positively. Troopers Romero and Arnold, assisted by Sgt. Schultz and FBI special agent Matt Meyer counted the currency. They prepared property control forms upon completing their count of the money. Since Claimant Vigna had asserted a claim for the money, Trooper Romero gave him a receipt for the seized currency. The Troopers took photographs of the money as well as Vigna and Curtis.
The total amount of currency found was $1,032,980.00, almost 49,000 separate bills in different denominations.
The search was completed at approximately 10:00 p.m. Per their request, Vigna and Curtis were escorted to a gas station located in the vicinity of a nearby hotel. Both Vigna and Curtis were released, and neither was charged with an offense.
Vigna and Curtis spent a total of approximately six hours and fifteen minutes, at the Toledo Trooper post.
7. Total Detention: Site of Traffic Stop through Trooper Post
There is no indication that Vigna and Curtis were free to leave or were given the option of leaving and returning later (to obtain a receipt for the currency) during the entire process from the initial stop through the completion of the currency count at the Trooper post. Trooper Romero indicated that a significant amount of time was needed to allow for completion of the detailed search of the vehicle and a detailed accounting of the contents, as well as the issuance of the receipt for the found currency.
It does not appear that Vigna and Curtis were Mirandized at the site of the stop or at any time prior to their arrival at the X-press garage, but they were Mirandized at approximately 11:41 a.m. while at the garage, shortly after Trooper Romero and the mechanic determined that there was a hidden compartment with contents.
FBI Agent Meyer and/or Sgt. Schultz and/or Trooper Romero questioned Vigna and/or Curtis at the Trooper post after they were Mirandized and after Vigna had requested an attorney. Other than Vigna asserting a claim for the Defendant currency and Vigna and Curtis indicating that they understood their Miranda warning, no evidence revealing the details of the questioning of Vigna or Curtis has been presented to this Court.
V. Analysis
The issues raised in Claimant Vigna’s Motion to Suppress and Plaintiff United States of America’s response thereto are as follows: (A) Does the Fourth Amendment exclusionary rule apply in civil forfeiture actions under 21 U.S.C. § 881; (B) Was there probable cause to justify the traffic stop of the Silverado by Troopers Romero and Arnold; (C) Is there a threshold requirement necessary to justify initiating a dog sniff of a vehicle at a traffic stop; (D) Was there probable cause to justify the search of the Silverado at the site of the stop and later at the garage; (E) Were Vigna and Curtis subject to a non-custodial traffic detention or were they under arrest; and, if under arrest, at what point did the detention convert into an arrest; (F) If the traffic stop detention of Vigna and Curtis merged into an arrest what effect did their being Mirandized and/or Vigna’s request for counsel have on any subsequent communications between law enforcement and Vigna or Curtis.
A. Fourth Amendment Exclusionary Rule and Civil Forfeiture Actions Under 21 U.S.C. § 881
This cause was initiated under 21 U.S.C. § 881, through which Plaintiff United States seeks forfeiture of Defendant currency, alleging that said currency is proceeds from illegal drug trafficking activities and/or was used or intended to be used to facilitate illegal drug trafficking in violation of 21 U.S.C. § 841(a).
The Fourth Amendment provides that individuals shall be secure in their person and property from unreasonable search and seizure. A defendant with possessory interest in a place searched or items seized has a legitimate expectation of privacy sufficient to invoke Fourth Amendment’s protections. Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Padilla, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993).
21 U.S.C. § 881(a) provides, in pertinent part, that
(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them.
(6) All moneys ... or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter,
The Fourth Amendment exclusionary rule has been held applicable in civil forfeiture cases because forfeiture, under § 881, is considered quasi-criminal in nature. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); See also United States v. $58,082 U.S. Currency, 985 F.2d 245, 250 (6th Cir.1993) (“Therefore, only legally-obtained evidence may be used to establish probable cause. In this case, the dog’s reaction cannot be used to show probable cause because it is the fruit of an illegal seizure and, as such, must be excluded.”) reh’g denied, 1993 U.S.App.Lexis 5920 (6th Cir.1993). Accordingly, the Fourth Amendment exclusionary rule is applicable in the current case.
B. Probable Cause: Traffic Stop of the Silverado
In Fourth Amendment terms a traffic stop entails a seizure of the driver who has a reasonable expectation of privacy sufficient to contest the legality of the stop and search. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); United States v. Torres-Ramos, 536 F.3d 542, 549 (6th Cir. 2008). Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
As a general rule, the typical traffic stop occurs without a warrant, and warrantless searches are presumptively unconstitutional, thus, the government bears the burden of establishing that a warrant-less search or seizure is reasonable and not violative of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
At the outset, the Government must prove that the initial stop was justified at its inception. Delaware v. Prouse, at 663, 99 S.Ct. 1391; United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In the context of a traffic stop, an officer’s decision to stop a vehicle is reasonable when the officer had “probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Prouse, 440 U.S. at 663, 99 S.Ct. 1391. “[S]o long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resultant stop is not unlawful and does not violate the Fourth Amendment.” United States v. Davis, 430 F.3d 345, 352 (6th Cir.2005). “The requirements of probable cause are satisfied where the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Davis, 430 F.3d at 352 (internal quotations and citations omitted).
Conversely, a traffic stop violates the Constitution if it is merely pretextual in nature, that is, where the officer’s decision to initiate the stop is based on no more than a mere hunch or profile. Whren, supra. However, the actual, subjective motivations or intentions of officers is irrelevant, that is, the constitutional reasonableness of traffic stops does not depend “on the actual motivations of the individual officers involved ... [s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813, 116 S.Ct. 1769. “The issue is whether, viewed according to objective criteria, the traffic stop is ‘unreasonable’ under the circumstances.” Id. A law enforcement officer’s “ulterior motivations, if any, are irrelevant.” United States v. Sanford, 476 F.3d 391, 396 (6th Cir.2007). “Probable cause, however, requires that the officer’s belief [that a traffic violation had occurred] be reasonable.” United States v. Gross, 550 F.3d 578, 584 (6th Cir.2008).
Law enforcement officers must have objective reasons to stop a vehicle. Davis, supra. However, notwithstanding the principle articulated in Whren, supra, an officer’s subjective motivations may nevertheless be relevant in assessing the credibility of the officer on the matter of whether an actual traffic violation was truly observed, or there was no genuine traffic violation, and the stop was a pretext. See, e.g., United States v. Freeman, 209 F.3d 464, 467-68 (6th Cir.2000) Viewed from this perspective it is, thus, unconstitutional to stop and detain people, including operators of motor vehicles, even for a very short period of time just to see if something might develop, in the absence of an articulable, reasonable suspicion of criminal activity or without the necessary probable cause provided by an actual traffic violation. See City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
The question before this Court on the matter of the Fourth Amendment sufficiency of the traffic stop in this case is fairly straightforward: in their totality, were the events that lead to the traffic stop of the Silverado, sufficient to satisfy the probable cause predicate that a traffic violation had occurred? Stated otherwise, would a reasonable person, having witnessed the movement of the Silverado, from the time that it was first observed by Troopers Romero and Arnold until the moment when the decision to stop was made, have concluded that a traffic violation had occurred. Additionally, while acknowledging that, in accordance with Whren, supra, officer subjective motivation is not an essential consideration in determining whether a stop was based on probable cause, this Court must consider whether officer subjective motivation may have exerted sufficient influence on the decision making of Troopers Romero and Arnold, such that they may be found to be so lacking in credibility that the Court would be compelled to conclude that the stop of the Silverado was pretextual. See, e.g., United States v. Freeman, 209 F.3d 464, supra. This Court shall address the second question first.
1. Officer Suspicion and Pretextual Stop
Review of the events that occurred from the moment that Troopers Romero and Arnold first observed the Silverado through the moment that they decided to initiate the stop of the Silverado reveal several factors that, arguably, could suggest that the Troopers elected to stop the Silverado based on a “hunch” rather than the legitimate probable cause predicate of an observed violation of a traffic law. As the Supreme Court has stated, officers may not act on what is little more than an impermissible “inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
In the instant case those factors that could lead to the conclusion that Troopers Romero and Arnold decided to stop the Silverado based on no more than mere suspicion of a hunch are that: (1) they claimed to have observed the Silverado slow down when they first noticed it east of where they were located on the Ohio Turnpike; (2) there appeared to be no visible gap between the frame and the bed of the truck; (3) there was the appearance of a new undercoating of paint in the wheel well on the driver’s side of the vehicle; (4) the wheel well appeared to have recently been cleaned; (5) the spare tire, which was mounted on the underside, rear of the bed of the truck, appeared to be positioned unusually low; (6) Trooper Romero had previously encountered two other vehicles in 2001 and 2006, subsequently determined to be outfitted with hidden compartments, which altered or affected the outward appearance of those vehicles; (7) the driver of the Silverado was claimed to be looking back at the pursuing trooper vehicle in the driver’s side mirror and that the driver appeared to be nervous and agitated and that his behavior appeared to change upon noticing that he was being followed by an OSHP vehicle; and (8) passenger was observed to look back on several occasions through the back window of the cab of the truck at the pursuing trooper vehicle.
Clearly, none of the factors, listed above (unless the distance between the surface of the roadway and the bottom of the spare tire mounted to the underside of the truck bed comprised an independent violation of Ohio traffic law, which claim has not been asserted here), individually, or in the aggregate, constituted a violation of Ohio traffic law. Therefore, whether, and to what extent, these factors may have influenced and informed the Troopers’ decision to stop the Silverado, they are not events that comprise a violation of a traffic law, and thus do not satisfy the probable cause predicate for justifying the Fourth Amendment intrusion of a traffic stop. Despite the fact that noticing such events might be an indication of perspicacious police work and the observational skills of a seasoned law enforcement officer, these events are only bases for forming suspicions or hunches and not observations of a probable cause worthy occurrence, i.e. a traffic violation.
However, the fact that a hunch or suspicion may have occurred to the Troopers sometime between the Silverado first being noticed and finally being stopped, does not necessarily entail that the basis of the stop was fabricated and pretextual. This is essential to the principle announced in Whren, supra, that a law enforcement officer’s subjective motivations are not directly relevant to the Fourth Amendment question before the Court. Indeed, it would stretch credulity and the reasoning of common sense, for a court to assume that no such intuitive considerations would ever enter into the deliberations of a working law enforcement officer when making the day to day decisions of his job. Thus, it would be unreasonable were the court not to acknowledge that such considerations may have factored into an officer’s decision to stop a vehicle. That a law enforcement officer may not act on what is little more than an impermissible “inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, supra, at 7, 109 S.Ct. 1581 only stands for the proposition that a decision to initiate a vehicle stop based on only a hunch and nothing more does not withstand constitutional scrutiny. Therefore, a law enforcement officer may have suspicions or hunches, however, there must also be an objectively valid basis for the probable cause determination (i.e., a genuine traffic violation) for the stop to be justified.
2. The Traffic Violation
The Ohio Revised Code provides, in pertinent part, that vehicles: “shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety.” § 4511.33 Ohio Revised Code.
The events that gave rise to the claimed violation of O.R.C. § 4511.33 were the Troopers’ observation of the Silverado’s having moved, swerved or veered onto or across the white line on the passenger side of the highway on three separate occasions during the final approximately forty-five seconds of their following of the Silverado. These three occurrences of violation of § 4511.33 were (a) the first move or swerve near to or across the right white line for a brief moment while the Silverado was on an overpass; (b) the second move or swerve, which took place approximately one-eighth mile after the first incident, as the Silverado was proceeding through a curve near mile marker 56 on the highway, which may have lasted a few moments longer than the first swerve, and involved the Silverado going a bit further astray than in the first swerve, where the passenger side wheels of the Silverado not only reached and crossed the white line but neared or made contact with the rumble strip of the highway, located further toward the outer edge of the roadway; and (c) the third move or swerve shortly after the second one, possibly as a result of an effort to correct the movement of the second swerve, as the Silverado straightened out from the curve and involved touching upon or crossing the white line for only a brief moment.
As described on their own terms, each of the three incidents separately constitutes a violation, if only a de minimis violation, of § 4511.33. Aggregated as a series comprising a single larger incident, they represent a valid basis for finding a violation of R.C. § 4511.33, and, thus, in turn, an appropriate probable cause predicate justifying the Fourth Amendment protected stop of the Silverado. As previously noted, probable cause only requires that the officer’s belief that a traffic violation had occurred be reasonable. United States v. Gross, supra, 550 F.3d 578, 584.
The cases cited by Claimant in his Motion to Suppress in support of the argument that the so called “lane change” violation found in this case was pretextual are inapposite.
In United States v. Freeman, 209 F.3d 464 (6th Cir.2000) the Sixth Circuit found that a stop based on an ostensible lane change violation was pretextual and, thus, violated the defendant’s Fourth Amendment protections. The facts of Freeman are distinguishable from the facts of the instant case. In Freeman the vehicle in question, a large Winnebago, had briefly-traveled outside its lane for just a few feet, the Sixth Circuit found that an isolated incident of this nature involving a large motor home that had partially weaved into an emergency lane for a mere few feet and over an instant in time did not constitute a failure to keep the motor home within a single lane as nearly as practicable. Id., at 466. In the current case the vehicle involved was a pickup truck, not the significantly larger and, arguably, more intrinsically unwieldy Winnebago. Also, in the instant case there were three separate occurrences, one of which included the vehicle veering beyond the white line and onto, or almost onto, the rumble strip.
In United States v. Gross, 550 F.3d 578 (6th Cir.2008), the Sixth Circuit found a stop based on a claimed lane change violation to be a pretext stop. In Gross the vehicle in question was observed by the officer to have straddled two lanes for at least 100 yards. However, the circumstances of the pretextual stop in Gross are distinguishable from the circumstances of the stop in the current case. In Gross the vehicle straddled two lanes at an area where the highway expanded form two to three lanes and at the beginning of a steep ascent in the highway. Moreover video showed other vehicles straddling lanes in a similar manner in the same area of the highway. Ultimately the court in Gross concluded that the officer’s stop was pretextual because the vehicular conduct involved represented what the court regarded as, essentially, a slow lane change. Id., at 583. In the current case the Silverado was not operating on the turnpike anywhere in the vicinity of where it widens from two to three lanes nor can the veering off the side of the road be considered vehicular conduct incidental to an effort to make a lane change.
Accordingly, because they are distinguishable from the case at bar for the reasons described, neither Freeman nor Gross provide support for Claimant’s argument in this case that the use of the lane change violation by the Troopers was an unconstitutional pretext intended to create the facade of a traffic violation to justify the decision to stop the Silverado.
3. Credibility
The foregoing discussion ultimately leads this Court to address the lynchpin of the traffic stop issue in this case: the credibility of Troopers Romero and Arnold.
Claimant Vigna argues that the Troopers’ credibility is suspect, thus insinuating that the ostensibly identified traffic violations (crossing the white lines) were mere window dressing behind which hid the primary guiding determinants of the Troopers’ decision to stop the Silverado, i.e., the factors, listed above, that may have informed such suspicions or hunches that the Troopers may have had about the Silverado and its occupants. Such a challenge to the Troopers’ credibility could reach so far as to induce doubt about the veracity of the Troopers’ observations of the existence and nature of the claimed swerves of the Silverado onto or over the white line.
In this regard, the Court notes that, despite the availability of video recording technology, the Troopers only initiated video recording of their pursuit of the Silverado after they decided to stop the vehicle, approximately at the moment they and the Silverado pulled off the side of the highway. The Court is concerned by the absence of video recording for this portion of the pursuit of the Silverado, especially considering that, regardless of whether or not it represents compliance with or departure from OSHP policy, it could have been implemented easily and inexpensively. The lack of such a recording only exacerbates the credibility questions raised by Claimant. On the other hand, the Court takes notice of the fact that, in the past, law enforcement conducted its activities without the benefit of such contemporary recording technologies, and courts made credibility determinations of law enforcement claims without reliance upon such recording devices.
In support of his challenge to the Troopers’ credibility, Claimant directs this Court’s attention to several cases involving the Trooper Romero and/or Trooper Arnold:. Thomas v. Arnold, 696 F.Supp.2d 882 (N.D.Ohio 2010); State v. Batchili (2005) 2005 Ohio 6001, 2005 WL 3008917 (rec’d State v. Batchili (2007) 113 Ohio St.3d 403, 865 N.E.2d 1282 (2007)); Ohio v. Loza-Gonzalez (2005) 2005 Ohio 5735, 2005 WL 2838550; Ohio v. Reeves, (May 12, 2000) 2000 Ohio App. Lexis 2004 (6th Dist. Nos. 99-CR-025, 99-CR-026) (unpublished). However, the Court is unconvinced that the conduct exemplified in these cases looms sufficiently large over the character of Troopers Romero and Arnold to support the view that the Troopers’ credibility is sufficiently suspect to yield the conclusion that the primary, if not exclusive, determinant of the Troopers’ decision to stop the Silverado was mere hunch or suspicion and not a Fourth Amendment worthy observation of a bona fide traffic violation.
Accordingly, this Court finds that the stop of the Silverado by Troopers Romero and Arnold was based on incidents which, if viewed by a reasonable observer, would have been found to have constituted, in their aggregate, a violation of Ohio Revised Code § 4511.33 and, as such, provided the Troopers probable cause to stop the Silverado. Therefore, this Court finds that the Troopers had probable cause to stop the Silverado.
C. Initiating a Dog Sniff of Vehicle during a Traffic Stop: Standard
Initiating a dog sniff search by a well-trained narcotics-detection dog — a search that does not expose non-contraband items that otherwise would remain hidden from public view — during a lawful traffic stop, generally does not implicate legitimate privacy interests. Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). The Fourth Amendment does not require reasonable suspicion to justify using a drug-detection dog as long as the traffic stop and detention are not unlawful or improperly extended. . United States v. Bell, 555 F.3d 535, 539 (6th Cir.2009).
A dog sniff of a vehicle pursuant to a lawful traffic stop does not constitute an intrusion of Fourth Amendment protected rights of the driver or occupants of the vehicle. Accordingly, where a vehicle has been rightfully stopped there is no impediment to, nor a standard that must be met for law enforcement to initiate, a dog sniff of the vehicle.
However, as noted in United States v. Bell, supra, the dog sniff cannot be used as a device to extend inappropriately the length of time of the stop and detention. In the current case the Troopers stopped the Silverado at approximately 10:57-10:58 a.m. questioned the occupants of the Silverado, initiated the dog sniff at approximately 11:00 a.m. and terminated the dog sniff no later than 11:03 or 11:04 a.m. Any events that transpired after 11:04 a.m. were a direct result of Trooper Romero having determined that K9 Hans had positively alerted on the Silverado.
Accordingly, the issue of the initiation of the dog sniff is a nullity, as the initiation of the sniff at the situs of a lawful traffic stop does not, in and of itself implicate, any constitutionally protected rights. As to the dog sniff being used to improperly extend the stop and detention, the Court finds that, in total, no more than seven minutes elapsed from the commencement of the stop to the termination of the dog sniff and the return of K9 Hans to the trooper vehicle. This is a reasonable amount of time for these events to have taken place and, thus, does not, in and of itself, represent an inappropriate use of the dog sniff used to create an impermissible extension of the stop and detention.
D. Probable Cause: Search of the Silverado
Although the sniff of the Silverado did not implicate constitutional concerns the subsequent search of the vehicle is protected under the Fourth Amendment.
Generally, searches conducted outside judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009); California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). One such exception is the automobile exception, requiring probable cause to believe that contraband or evidence will be found in the automobile searched United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
In the absence of a warrant, a positive alert by a reliable drug detection canine for the presence of a controlled substance is sufficient to supply the probable cause to search an otherwise Fourth Amendment protected vehicle for the presence of a controlled substance and, therefore, to justify the search of the vehicle. United States v. Torres-Ramos, 536 F.3d 542, 554 (6th Cir.2008); United States v. Diaz, 25 F.3d 392, 393-394 (6th Cir.1994); United States v. Knox, 839 F.2d 285, 294 n. 4 (6th Cir.1988)
However, a dog sniff conducted during an unlawful detention, violates the Fourth Amendment. Illinois v. Caballes, supra, 543 U.S. at 407-408, 125 S.Ct. 834; United States v. Perez, 440 F.3d 363, 374 (6th Cir.2006).
In cases where a vehicle search, incident to a lawful traffic stop, is initiated on the basis of an alert by a drug detection dog the probable cause requirement for post-sniff vehicle searches is satisfied where the dog has been determined to have met the standard of reliability. This reliability standard can be established by a showing that the dog has been trained and certified. The government bears the burden of establishing that there was probable cause to justify the vehicle search and, thus, the burden of proving that the detection dog was reliable. Diaz, supra, at 394.
The means by which training and certification requirements are established have been held not to require that the government produce actual training or certification records. Rather, testimony about the dog’s training and certification, and thus, reliability suffices. Id. Where the dog’s reliability is proven through evidence that the dog was trained and certified, the government has met its burden of showing that law enforcement had probable cause to conduct the search of the vehicle. Id. The testimony of a dog’s handler, that the dog was trained and certified, may be sufficient to establish reliability. Diaz, 25 F.3d at 396. Conversely, while probable cause in certain situations may be supported by positive canine alerts, probable cause will fail, if the government cannot meet its burden of presenting sufficient evidence demonstrating that the particular narcotics-detection canine team is certified, well trained and, thus, reliable. United States v. Place, 462 U.S. 696, 706-707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
1. Reliability
As discussed, above, a detection dog’s alert behavior shall be considered reliable, and, thus, will supply the probable cause predicate for a warrantless search of a vehicle subject to a lawful traffic stop if evidence is adduced that the dog was trained and certified. Torres-Ramos, supra, 536 F.3d 542; Diaz, supra, 25 F.3d 392; Knox, supra, 839 F.2d 285.
The proper application of this standard, and the related concerns of dog training, training record keeping, criteria for certification, adequacy of certifying organization, K9-handler relationship, and other relevant issues pertinent to the use of detector dogs as a means to satisfy the probable cause requirement incident to warrantless Fourth Amendment intrusions have been matters of much contention in this case, and were addressed at length at the suppression hearing(s) as well as analyzed in detail in parties’ pre and post-hearing briefs and will be discussed by this Court more fully, below.
However, the issue presently before this Court has a much narrower scope: (1) what is the standard of reliability for drug detector dogs that has been established by the Sixth Circuit; and (2) did K9 Hans meet that standard.
The Sixth Circuit has articulated the standard for adjudging detector dog reliability in Diaz, supra, 25 F.3d 392.
In Diaz, the Sixth Circuit rejected defendant’s argument, viz: that the government’s failure to produce training and certification records of detector dog Dingo precluded a finding of reliability because the records were necessary to establish that Dingo was properly trained and certified. Rather, the Sixth Circuit agreed with the district court that credible testimony that the dog was trained and certified established reliability, even in the absence of training records. See Diaz, supra, 25 F.3d at 395. The Sixth Circuit wrote “[the defendant] argued that the government could not establish Dingo’s reliability because [the officer] failed to bring the dog’s training and performance records to court and so was unable to answer precisely how many searches Dingo had done and how many times drugs were not discovered when Dingo indicated, [and because] ... [the officer] and Dingo were improperly trained.” Id. The court of appeals rejected defendant’s claim and determined that the district court’s finding of fact as to Dingo’s reliability was not clearly erroneous. The court stated that the officer who handled and used Dingo “testified as to her and Dingo’s training, certification, and experience. The district judge heard the testimony and made a credibility determination: [that the officer] was believable. [The officer’s] testimony supports a finding that Dingo was trained and reliable. After reviewing the record, we are not left with a definite and firm conviction that a mistake has been made.” Id.
In United States v. Torres-Ramos, supra, 536 F.3d at 554 the Court determined that the dog “Emir” was reliable on the basis of his handler’s testimony, which included that “Emir had been certified by three different agencies: the North American Working Dog Association and state accreditation programs in Ohio and Indiana ____ [and that the officer had] personally conducted more than 100 training sessions with Emir, which he documented.” Id. Despite conflicting testimony from defendant’s animal behavior expert that Emir had failed to certify on residual odors and that the “Ohio certification process for drug sniffing dogs was inherently flawed.” Id., and references by defendants to the claim that much currency in the United States is tainted by residual amounts of cocaine, the Court found Emir to be reliable, stating, “[the handler/officer] testified to the dog’s considerable training and prior certifications, which is sufficient to establish his reliability. Because Emir is reliable and actively alerted to the van (i.e. he scratched at the location where the cocaine was subsequently found), the government established probable cause for a search of the van.” Id.
Accordingly, the Sixth Circuit precedent, which this Court is bound to follow, is that detector dog reliability is established by credible testimony from the dog’s handler/partner (or, arguably, by other knowledgeable and credible witnesses) that the dog was trained and certified. See also United States v. Gooch, 499 F.3d 596, 603 (6th Cir.2007); United States v. Boxley, 373 F.3d 759, 762 (6th Cir.2004); United States v. Hill, 195 F.3d 258, 273 (6th Cir.1999); United States v. Booker, 2010 WL 4884217, 2010 U.S. Dist. LEXIS 124839 (E.D.Tenn. Sept. 29, 2010).
Testimony and other evidence pertinent to the issue of K9 Hans’s training and certification and, thus, his reliability as a detection dog, were introduced in this case.
a. Hans’s Training
Generally speaking, Hans was a trained detector dog.
Hans’s records indicate that, in addition to certifications, the Romero/Hans team had ongoing in house training and quarterly evaluations, including quarterly evaluations with their master trainer. Romero and Hans trained 3 to 4 times per month. This training included, for example, setting up scenarios, placing or not placing a contraband in a hidden location, and giving the dog a specified area to walk, to check Hans’s accuracy.
Hans was trained to detect residual odors using pieces of cotton or towels/cloths that had previously been kept inside closed containers with contraband then later placed inside pipes which were located in a field or in various small, narrow or otherwise inaccessible places in a building for Hans to find, and Hans would positively indicate in these areas. However, the record keeping of Hans’s training did not include the manner in which drugs were packaged or other information about specifics of the locations where drugs were hidden. These factors raise questions about whether, during training, the dog was responding to features of the packaging rather than the odor of drugs.
Hans’s training records indicate that in 2009 and 2010 he received training involving the use of untainted, shredded currency as conflict item. However, no testimony or evidence indicate that he received such training prior to the to March 25, 2009, the date of the Silverado stop.
Trooper Romero’s and Hans’s training and evaluation included instruction on handlers avoiding queuing and/or prompting. This training would occur in front of observers who would critique the team’s performance. Trooper Romero indicated that he understood the difference between presenting an item to the dog to sniff during a detail sniff and queuing.
During another training session, Hans sniffed 15 parcels on a gym floor, with just 1 containing a hide, and Hans alerted to that parcel only.
Other training records from before the 3/25/2009 stop show that Hans was presented with numerous blank locations and didn’t positively indicate, e.g., training session 10/14-16/2008 Seneca County Fair grounds Hans was presented with 4 blank vehicles and alerted to none; training session 11/5/2008, included 6 blank vehicles and Hans did not alert; training session 1/21/2009 included 6 blank rooms at the Cleveland bus garage as well as 4 rows of blank lockers and Hans did not alert,
b. Field Deployments
The Ohio State Highway Patrol stopped preparing canine field reports after 2005.
Regarding Hans’s field deployments, Trooper Romero stated that Hans had indicated anywhere between 50-100 times where only trace amounts of contraband were present in a vehicle. However, the Trooper agreed that he would be guessing as to whether any drugs were actually in those vehicles.
Trooper Romero stated that Hans was able to sniff narcotic and non-narcotic odors in actual money seizures.
c. Certifications
The Romero/Hans team was first trained and certified together as a team in 2001. Hans and Trooper Romero were together for eight years as of 3/25/2009. He and Hans trained at the dog handler’s program at Lynwood’s Kennels, which included several hundred practical exercises.
After their initial training Romero and Hans were certified by the North American Police Work Dog Association (NAPWDA), which certification is good for one year and by the Ohio Peace Officer’s Training Academy (OPOTA), which certification is good for two years. These certifications were for the for odors of marijuana, cocaine, heroin, methamphetamine. The team was recertified annually after 2001.
NAPWDA is a private company not regulated by government or any agencies, and is supported by police department membership fees.
Hans’s certification records did not include certain detailed information, e.g., there were no record indicating where the substance was placed, how long it was placed there, whether the search was a free or directed search, whether the handler knew where the contraband was located; time ratios, measurement details that would indicate height or depth of sample placement. The certification only tells that the dog was certified on a given date for indicated amounts.
The OPOTA form does not indicate specific amounts for which the dog was certified.
Hans’s certification involved non-trace amounts of the contraband he was trained to detect, e.g., 9 grams being the smallest amount, with 40 grams. for marijuana. However, the NAPWDA standard prescribes that a minimum of 1 gram be used during certification process, and Hans’s training records do not indicate that at any time from 2001 until Hans retired was he tested using that amount. Also, at no time in training or certification was trace amount used.
The examination for certification is a one day event. The smallest amounts used to test/certify were 10 grams for heroin and 20 to 40 grams for other substances. Hans was neither certified for finding trace amounts nor for finding odors on currency.
At every certification Hans and Romero attended (e.g., NAPWDA in 2007,2008 and 2009 & OPOTA 2004, 2008 and 2010 Hans attained a perfect score). The certification process involves putting narcotics in hiding places. The dog/handler teams are given blind tests, neither dog nor handler knows where the item was located. Trooper Romero stated that during theses sessions Hans located all the hides, didn’t miss any and didn’t false alert. Hans’s certification shows that the team tested on buildings, vehicles and luggage/loeker searches. For example Hans’