MANHATTAN (CN) – Drug-sniffing dogs can no longer play hide the ball with their field report evaluations in the 2nd Circuit.
In a win for K-9 transparency, a man who stashed two bags filled with more than 600 oxycodone pills in his underwear will have another chance to suppress the evidence that led to his guilty plea for drug possession.
Long Island resident Michael Foreste did not deny that the narcotics were his, but he claimed that the evidence should be suppressed because police had no grounds to search him.
Clearing the officers of any constitutional violation, a federal appeals court turned their scrutiny toward their pooch Duchess Corrie on Wednesday.
On April 2, 2012, Foreste got pulled over twice as he sat in the passenger seat of a rental traveling from New York to Vermont, according to the opinion.
Noticing the rental agreement for the car had long expired, Massachusetts State Trooper Rachel Loiselle suspected that the car was stolen alerted Vermont Sgt. Eric Albright about the men once she learned about their destination.
Loiselle let Foreste and the driver go with only a speeding ticket when the rental company reported no problem.
Meanwhile in Vermont, Albright said he learned from an informant that Foreste was a known drug dealer. The sergeant asked a K-9 handler to be ready as he waited for his suspect to commit a traffic violation.
After Foreste’s car rolled through a traffic sign, Albright pulled over the car and questioned the passengers.
Albright allegedly noticed what appeared to be cocaine residue in Foreste’s nostrils and waited about half an hour for Duchess Corrie to arrive.
When the K-9 scratched her paw inside the car, Albright ordered the vehicle towed and detained Foreste. The searches that followed found oxycodone on Foreste and uncovered prescription pills inside the car.
Foreste’s lawyers sought Duchess Corrie’s field reports to challenge the basis for the searches.
Writing for a unanimous three-judge panel, U.S. Circuit Judge Richard Wesley found that Foreste’s lawyers were entitled to that information.
Citing a Supreme Court decision in Florida v. Harris, Vermont prosecutors argued that K-9 field reports could be misleading because they tend to capture false positives more than false negatives.
Wesley, however, noted that the Supreme Court did not find the records “irrelevant-only that they are not required.”
“The state should produce its evidence of the dog’s reliability (including certifications and performance in controlled settings), the defendant should be given the opportunity to dispute the dog’s reliability, and the court should then weigh the competing evidence,” the opinion states.
Judges Barrington Parker and Rosemary Pooler also appeared on the panel.
Foreste’s lawyer Bradley Stetler, of the Burlington, Vt. firm Stetler, Allen & Kampmann, told Courthouse News that the ruling shows drug detection dogs are “not infallible.”
“The dog’s field performance records in this case may shed light on whether the dog was reliable,” he said. “That is why they should be provided to the defense. After all, this dog alerted to my client’s car, but the drugs the dog is certified to detect were not present.”
Duchess Corrie was certified to sniff out marijuana, hashish, cocaine, heroin and “several” other drugs, but not oxycodone, Stetler added.
Vermont’s U.S. Attorney’s office did not respond to a request for comment.
More than two years after the search related to this case, Foreste got arrested again for shipping oxycodone to Vermont packaged inside a Skittles bag that he sent to his 2-year-old niece, the New York Daily News reported in July.
The tabloid called him the “Taste the Rainbow pill peddler.”
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