US v. Thomas, No. 11-10451 (8-8-13)(O'Scannlain with Goodwin and N. Smith)(editorial note: This is an Ariz FPD case). ).

A good case for the dog days of summer, as it involves Beny-A, a drug detection dog who, in evaluations, barely makes the grade (1/10th of a point). We don't know much else about his struggles, because of the heavily redacted "discovery" of his travails in learning. It matters because the dog acted alert, and then, sort of, went into detection mode at a truck with a toolbox (and yes, marijuana). The 9th said "bad government" in not turning over the file on Beny-A, and as such, the trial conviction and sentence is vacated, and remanded. The government tried to argue that the defense at trial -- duress -- made any error harmless at the suppression hearing. The 9th thought the gov't was barking up the wrong tree (or car).

There are other interesting issues, which weren't ruled on so favorably. First, in an issue of first impression (surprisingly), the 9th holds that when there is a superseding indictment, a new speedy trial clock starts running for the count that is not required to be joined with the original charge or count (basically any lesser included). Here the original indictment charged possession with intent, which was superseded in an indictment with conspiracy. The former was dismissed for speedy trial violation, but the superseding count remains.

It also was shown that Beny-A jumped on the truck, and placed his paws (!) and nose (!) on the toolbox (down, Beny-A, down). It would seem like a case of Katz versus dogs, with the expectation of privacy. However, recently, the Supremes made clear that 18th century notions of trespass are at the core of the 4th amendment, and that Katz surrounds that analysis of trespass with an expectation of privacy. Defendant argued that if, under Jones, placing a GPS monitor on a car is a trespass as understood in the 18th century, so was the physical touching of a vehicle by an over exburent dog. See also Jardines (dog on porch). The 9th stepped over these arguments, saving them for another day, because the doctrine of good faith reliance on precedent means that the police relied on the 9th precedent as it was in conducting the dog search, and exclusion is not a remedy. This issue howls to be brought up again.

The 9th also seems to say that untrained behavior, jumping around by Beny-A instead of sitting as trained, can equal probable cause. Other circuits seem to so indicate, but, if the right record is made, this may also be another issue to raise again.

Oh yes, the breed of Beny-A is not revealed. Maybe to protect others of the same type (Labs, Goldens, Shepards?) against vicious profiling?

Congrats to Brian Rademacher, AFPD in the Az FPD office (Tucson) and former AFPD Richard Raynor.