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Drug Defendant Has Right to Challenge Drug-Sniffing Dog

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By Betty Wang, JD on August 12, 2013 4:34 PM

An alleged marijuana smuggler was deprived of his right to challenge the reliability of a drug-sniffing dog, the Ninth Circuit ruled Thursday in United States v. Thomas.

Defendant Jonathan Thomas was arrested at a Border Patrol checkpoint with 150 pounds of marijuana in a toolbox. He was then indicted for possession with intent to distribute marijuana in 2010. Then in 2011, a superseding indictment added a charge of conspiracy to distribute marijuana. He was found guilty of both.

In his appeal, Thomas moved to suppress the marijuana on claims that the arresting officer, Agent Christopher LeBlanc, had illegally searched the toolbox.

The drug detecting dog, Thomas claimed, showed no interest in it, but LeBlanc went forward with the search anyway. Furthermore, Thomas also argued that the Border Patrol's reports of the training and performance evaluations, which were all apparently up-to-date at the time of the search, were over-redacted. There apparently were many blacked-out paragraphs that spanned most of the pages.

The district court denied Thomas' motion to suppress, but the Ninth Circuit reversed, confiming the U.S. Supreme Court's prior affirmation of a right to challenge a drug dog's performance under the Fourth Amendment.

A defendant must be afforded the opportunity to challenge the evidence of a drug dog's reliability, including the adequacy of a certification or training program.

Under this reasoning, and because of the heavily redacted Border Patrol records, the Ninth Circuit found it to be an error that wasn't harmless. The failure on the government's part to turn over a the entire record of the dog-sniff discovery was not proper, the Ninth Circuit ruled. The district court's denial was reversed, and Thomas' motion to suppress was, therefore, upheld.

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