United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Aaron
Mercado-Gracia's (i) Motion for Production of Canine
Records and for an In-Court/Out-of-Court Demonstration of
Effectiveness (ECF No. 48), and (ii) Motion for Production of
Records Regarding Aircrafts in this Matter (ECF No. 49). The
Court having considered the motions, briefs, arguments, and
relevant law concludes that the motions should be denied.
to the Government, on March 25, 2016, New Mexico State Police
(“NMSP”) Officer Ronald Wood, while traveling
westbound on Interstate-40 with his drug-detection dog Arras,
stopped Defendant Mercado-Gracia for speeding. In the course
of the detention, Officer Wood deployed Arras on the exterior
of the vehicle. Arras allegedly alerted to the vehicle, a
fact that Defendant disputes, resulting in Officer Wood
searching the interior of the vehicle and discovering
approximately 7.25 pounds of heroin and a handgun therein.
United States subsequently charged Defendant in a two-count
Indictment (ECF No.12) for Possession with Intent to
Distribute 1 Kilogram and More of Heroin under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), and Using and Carrying
a Firearm During and in Relation to a Drug Trafficking Crime
and Possessing a Firearm in Furtherance of Such Crime under
18 U.S.C. § 924(c). On July 10, 2017, Defendant filed a
motion to suppress (ECF No. 47) challenging the legality of
the detention and search, as well as the two motions for
production at issue here.
Motion for Production of Canine Records
Federal Rule of Criminal Procedure 16(a)(1)(E), Defendant
requests Arras' certification, training, medical history,
and reliability records, arguing they are relevant and
material to the issue of probable cause to search the vehicle
and he needs them to prepare for the hearing on his motion to
suppress. Def.'s Mot. for Prod. of Canine Records 2, ECF
No. 48. Defendant filed a Notice of Intent to Offer Expert
Testimony of Andre Falco Jimenez, a purported expert in
police canine training and certification, to testify at the
hearing on the motion to suppress. Notice, ECF No. 67.
Defendant asserts that Mr. Jimenez will require the requested
canine records to fully form his opinion in the case.
Def.'s Reply 1, ECF No. 68.
Government in response attached certification documents to
show that Officer Wood and Arras participated in and
completed the U.S. Customs and Border Protection Canine
Detection Team Certification on September 24, 2013; they were
re-certified each year; and they were re-certified through
December 8, 2017, for the odors of cocaine, marijuana,
heroin, and methamphetamines, and their derivatives.
See Government's Ex. 1, ECF No. 55-1. The
documentation includes scores for Arras on October 30, 2013,
and on December 8, 2016. See Id. at 8 and 12 of 13.
Although the United States acknowledges that the test scores
during the last certification “were within the average
range, ” it argues that the remaining documents sought
are not relevant and are protected from disclosure by the law
enforcement privilege because they contain confidential and
sensitive law enforcement information. United States'
Resp. 2, ECF No.
relevant here, Rule 16(a)(1)(E) provides that a defendant,
upon request, is entitled to documents and data if the item
is material to preparing the defense or the government
intends to use the item in its case-in-chief at trial. Fed.
R. Crim. P. 16(a)(1)(E)(i)-(ii). “It is firmly
established in this circuit that alerts by reliable
drug-detection dogs provide probable cause to conduct a
search.” United States v. Villa, 348 F.
App'x 376, 379 (10th Cir. Oct. 6, 2009) (and cases cited
therein). The Supreme Court has “rejected rigid
rules” or a strict evidentiary checklist when
conducting probable cause analyses. Florida v.
Harris, 568 U.S. 237, 244 (2013).Consequently, the
Harris Court rejected a rule requiring the State to
produce comprehensive documentation of a drug detection
dog's field reliability. See Id. at 244-45. The
Supreme Court explained in detail the reasons why a dog's
field performance is of limited utility and why the better
measure of a dog's reliability comes in controlled
If a dog on patrol fails to alert to a car containing drugs,
the mistake usually will go undetected because the officer
will not initiate a search. Field data thus may not capture a
dog's false negatives. Conversely (and more relevant
here), if the dog alerts to a car in which the officer finds
no narcotics, the dog may not have made a mistake at all. The
dog may have detected substances that were too well hidden or
present in quantities too small for the officer to locate. Or
the dog may have smelled the residual odor of drugs
previously in the vehicle or on the driver's person.
Field data thus may markedly overstate a dog's real false
positives. By contrast, those inaccuracies-in either
direction-do not taint records of a dog's performance in
standard training and certification settings. There, the
designers of an assessment know where drugs are hidden and
where they are not-and so where a dog should alert and where
he should not….
For that reason, evidence of a dog's satisfactory
performance in a certification or training program can itself
provide sufficient reason to trust his alert. If a bona fide
organization has certified a dog after testing his
reliability in a controlled setting, a court can presume
(subject to any conflicting evidence offered) that the
dog's alert provides probable cause to search. The same
is true, even in the absence of formal certification, if the
dog has recently and successfully completed a training
program that evaluated his proficiency in locating drugs.
After all, law enforcement units have their own strong
incentive to use effective training and certification
programs, because only accurate drug-detection dogs enable
officers to locate contraband without incurring unnecessary
risks or wasting limited time and resources.
Id. at 245-47.
Supreme Court nonetheless acknowledged a defendant's
right to challenge the evidence of a dog's reliability
through cross-examination of the testifying officer or by
introducing his own fact witness. Id. at 247. The
Court noted that evidence of a dog's or handler's
history in the field may sometimes be relevant and explained
the process to resolve questions of the reliability of a dog
alert as follows:
The court should allow the parties to make their best case,
consistent with the usual rules of criminal procedure. And
the court should then evaluate the proffered evidence to
decide what all the circumstances demonstrate. If the State
has produced proof from controlled settings that a dog
performs reliably in detecting drugs, and the defendant has
not contested that showing, then the court should find
probable cause. If, in contrast, the defendant has challenged
the State's case (by disputing the reliability of the dog
overall or of a particular alert), then the court should
weigh the competing evidence…. The question-similar to
every inquiry into probable cause-is whether all the facts