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02-2006 U.S. v. Johnson

By: dmc-admin//March 31, 2003//

02-2006 U.S. v. Johnson

By: dmc-admin//March 31, 2003//

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“[T]he judge was not entitled to disregard the alert on the ground that the dog’s handler did not testify at the suppression hearing although another officer, who observed the dog alert from a distance, did. Dogs alert to drugs or, in this case, currency containing traces of drugs. United States v. $639,558 in U.S. Currency, 955 F.2d 712, 714 n. 2 (D.C. Cir. 1992). ‘Typically the dog is trained to signal a find in one of two ways: the aggressive alert or the passive alert. Either style requires a dog with strong search drives that reacts reliably when he detects drugs. The dog trained to alert aggressively tries to contact the scent source (biting, scratching, penetrating, attempting to retrieve), while the dog that alerts passively does not try to contact the scent source but instead performs trained behavior (sitting, looking at the source, sniffing toward the source, looking at the handler).’ Sandy Bryson, Police Dog Tactics 257 (2d ed. 2000); see also Kenneth L. Pollack, ‘Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard,’ 47 Vand. L. Rev. 803, 805 n. 11 (1994). Rick is an aggressive alerter. The reason his handler did not testify was that the motion to suppress offered no clue that Johnson meant to contest the alert. Nor did Johnson or his lawyer challenge the government’s account of the alert at the hearing. In any event, Rick’s handler was not the only officer capable of interpreting Rick’s behavior as alerting to the presence of drugs or drug-infested currency.

“Having rejected Rick’s evidence, the judge granted the motion to suppress because no officer had observed anything being placed in the Corolla. The judge inferred from this that there was no reason to believe that the car contained contraband or evidence of crime. Actually there was compelling reason to believe that the car contained contraband, specifically the currency that Mohammed had obtained in the illegal albeit government-sponsored sale to the informant. The only plausible explanation for Johnson’s presence at the buys and for Mohammed’s entering Johnson’s car on the first occasion and reaching into it on the second was that Johnson had transported the drugs and, after the sale, the money received in exchange for them while Mohammed did the negotiating and transacting with the buyers.”

Reversed.

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Posner, J.

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