Border Patrol Dog Isn’t Up to 9th Circuit’s Snuff

     (CN) – Heavily redacted Border Patrol records deprived an alleged marijuana smuggler of his right to challenge the reliability of a drug-sniffing dog, the 9th Circuit ruled Thursday.
     Jonathan Thomas was caught at a Border Patrol checkpoint in Southern Arizona with 150 pounds of marijuana in his toolbox.
     Thomas claimed that “a Hispanic man with a gun” had forced him to transport the drugs across the border with threats against his family. He also questioned the competency of Beny-A, the drug-detecting dog that had allegedly sniffed out the pot, and the dog’s handler, Agent Christopher LeBlanc.
     The case hit an initial glitch when prosecutors waited more than a year to issue a superseding indictment that added the conspiracy count to an original charge of possession with intent to distribute. Thomas moved to dismiss under the Speedy Trial Act, and a federal judge in Arizona tossed the first charge but left the second in place.
     In the run up to his trial, Thomas moved to suppress the marijuana, claiming that LeBlanc had illegally searched his toolbox because Beny-A had not shown any interest in it.
     As the ruling describes the 2010 stop and search, Beny-A demonstrated “alert behavior” – sniffing at the air and pricking up his ears and tail – when Thomas’ truck drove past.
     “When the team came upon the toolbox, LeBlanc cast his hand low-to-high,” the ruling states. “In response, Beny-A jumped up and placed his paws on the vehicle and pressed his nose against Thomas’s toolbox. LeBlanc testified that the dog then tried to sit, but that he did not allow him to complete that trained indication.”
     Thomas further argued that the training and performance evaluations provided by the Border Patrol had too many redactions, with paragraphs and comments marked out on most pages.
     “As to what is beneath the blacked-out paragraphs, the defendant, district judge, this court, and even the Border Patrol’s custodian of records are entirely in the dark,” the ruling states.
     The U.S. District Court for the District of Arizona denied Thomas’ motion to suppress, and he was convicted and sentenced to 2 1/2 years in prison.
     In a ruling Thursday that “explore[s] the emerging parameters for the constitutional use of drug-detection dogs,” the 9th Circuit upheld the lower court’s Speedy Trial Act ruling but reversed its denial of the motion to suppress.
     The three-judge panel said that in this year’s Florida v. Harris the U.S. Supreme Court had confirmed the right to challenge a K9’s performance.
     “Harris explained that a defendant must be afforded the opportunity to challenge ‘evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses,'” Judge Diarmuid O’Scannlain wrote for the San Francisco-based panel.
     Noting that Beny-A had received close to a failing score for “search skills” at least once, the panel found the blacked-out records to be “in flat contravention of the principle at the heart of Harris.
     “Thomas’s counsel was hamstrung by the fact that the certification records had been so redacted,” O’Scannlain wrote. “The K9 Coordinator for the Border Patrol conceded during the suppression hearing that the redactions contained, in part, information about ‘the training methodology and the techniques used to train the K9s and evaluate the K9s.’ He also said that if the redactions were lifted, he would expect to see critiques of the team’s competence as well as discussions about areas for improvement.”
     The panel sent the case back to the District Court, saying it “must decide whether the government can establish the dog’s reliability in light of an adequate record, or alternatively, whether it can establish that Thomas freely consented to Agent LeBlanc’s search.”
     If the court cannot do at least one, then the state will have to retry Thomas without the marijuana. If it can, “the court may reinstate the conviction,” the panel found

%d bloggers like this: