RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Boxley No. 02-6446 ELECTRONIC CITATION: 2004 FED App. 0189P (6th Cir.) File Name: 04a0189p.06 ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: David W. Camp, PETTIGREW & CAMP, Jackson, Tennessee, for Appellant. UNITED STATES COURT OF APPEALS Christopher E. Cotten, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________
UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6446 BOYCE F. MARTIN, JR., Circuit Judge. Reginald Boxley v. - appeals his conviction of possession of sixty grams of crack > cocaine with the intent to distribute under 21 U.S.C. , § 841(a)(1). Based on the reasoning of the district court, we REGINALD BOXLEY, - Defendant-Appellant. - affirm the judgment. We write only to elaborate on two issues: (1) the qualification of testimony regarding canine N searches, and (2) the operation of the presumption under the Appeal from the United States District Court doctrine of spoliation. for the Western District of Tennessee at Jackson. No. 98-10045—James D. Todd, Chief District Judge. I. Testimony on Canine Searches: Qualifications
Argued: April 27, 2004 On the night he was arrested in December of 1997, Boxley was subjected to a canine search for drugs by a drug-detection Decided and Filed: June 22, 2004 dog, Cuffs. Though Cuffs alerted to Boxley’s pant pocket, the police found no drugs in the pocket or on Boxley’s body. Before: MARTIN and ROGERS, Circuit Judges; BELL, The police did, however, find drugs nearby and, based in part Chief District Judge.* on Cuffs’s alert, arrested Boxley. At Boxley’s trial for possession of cocaine, the prosecution submitted testimonial _________________ evidence by Officer Anderson, Cuffs’s handler, that drug dogs alert to aromas of drugs, not drugs themselves, and that COUNSEL Cuffs’s alert to Boxley’s pocket demonstrates that Boxley carried an aroma of drugs. This testimony was intended to ARGUED: David W. Camp, PETTIGREW & CAMP, link Boxley to the drugs that were found in his vicinity that Jackson, Tennessee, for Appellant. Christopher E. Cotten, night. On cross-examination, Boxley asked Officer Anderson whether he had any documentation, such as “search find * The Honorable Robert Holmes Bell, Chief United States District sheets,” to verify the dog’s prior history and accuracy. Judge for the Western District of Michigan, sitting by designation.
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Anderson stated that the department did not keep accuracy We also determined that it is not necessary for the records for drug dogs, but that Cuffs was certified as a drug government to show that the dog is accurate one hundred dog after a two-month training program. Anderson also percent of the time, because “a very low percentage of false explained that Cuffs’s record on the department’s computer positives is not necessarily fatal to a finding that a drug database was deleted after Cuffs passed away, more than two detection dog is properly trained and certified.” Id. In Diaz, years before Boxley’s trial. When asked whether Cuffs had we concluded: alerted in the past to a finding of no drugs, as he did in this case, Anderson acknowledged that Cuffs had done so one When the evidence presented, whether testimony from other time in his prior sixty to seventy searches. Anderson the dog’s trainer or records of the dog’s training, also stated that no dog can be “one hundred percent accurate.” establishes that the dog is generally certified as a drug On appeal, Boxley claimed that the district court abused its detection dog, any other evidence, including the discretion in allowing Anderson’s testimony because Cuffs’s testimony of other experts, that may detract from the qualifications could not be documented or verified. reliability of the dog’s performance properly goes to the credibility of the dog. Lack of additional evidence, such We recognize that an alert in the context of a canine as documentation of the exact course of training, narcotics sniff indicates that narcotics are present in the item similarly would affect the dog’s reliability. As with the being sniffed or have been present in such a way as to leave admissibility of evidence, generally, the admissibility of a detectable odor. United States v. Buchanon, 72 F.3d 1219, evidence regarding a dog’s training and reliability is 1217 n.1 (6th Cir. 1995). Thus, we now consider whether the committed to the trial court’s sound discretion. testimony regarding the alert in this case is reliable. This Court considered the reliability of testimony as to canine Id. at 394. Thus, after it is shown that the dog is certified, all searches in United States v. Diaz, 25 F.3d 392 (6th Cir. 1994), other evidence relating to his accuracy goes only to the for purposes of determining whether a canine’s alert could credibility of the testimony, not to the dog’s qualifications. satisfy probable cause for a warrantless search of a car in a See United States v. Sanchez-Pena, 336 F.3d 431 (5th Cir. public parking lot. For guidance in determining whether such 2003) (evidence that the dog was certified was sufficient testimony was admissible without documentation verifying proof of his training to make an effective alert); United States the dog’s reliability, we applied general principles of evidence v. Daniel, 982 F.2d 146, 152 n.7 (5th Cir. 1993) (noting that law. there is no requirement of an affidavit demonstrating the reliability of a drug-detecting dog); United States v. Wood, We held that in order to admit evidence of a dog’s alert to 915 F.Supp. 1126, 1136 n.2 (D.Kan.1996), rev’d on other an aroma of drugs, it is not necessary to provide the dog’s grounds, 106 F.3d 942 (10th Cir. 1997) (“[w]ith a canine, the training and performance records, as it is similarly reliability should come from the fact that the dog is trained unnecessary to qualify a human expert in this way. Rather, and annually certified to perform a physical skill. When the testimony as to the dog’s record is sufficient. Id. at 396. We annual certification process involves actual field testing and stated: “[w]hile training and performance documentation grading of the canine’s drug-detection skills . . . the canine’s would be useful in evaluating a dog’s reliability, here the reliability is sufficient for a probable cause determination testimony of [the dog’s handler] sufficiently established the absent some circumstance that justifies a more complete dog’s reliability.” Id. examination of the canine’s skill and performance.”). In this case, Officer Anderson testified that Cuffs was certified as a No. 02-6446 United States v. Boxley 5 6 United States v. Boxley No. 02-6446
drug detection dog after a two-month training program. preservation would have yielded fingerprint evidence. The Because Cuffs was certified, the district court properly government also demonstrated that the police did not act with admitted Anderson’s testimony. any intention to destroy evidence. In Nationwide, 174 F.3d at 804, this Court defined “intentional destruction” not as a II.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Boxley No. 02-6446 ELECTRONIC CITATION: 2004 FED App. 0189P (6th Cir.) File Name: 04a0189p.06 ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: David W. Camp, PETTIGREW & CAMP, Jackson, Tennessee, for Appellant. UNITED STATES COURT OF APPEALS Christopher E. Cotten, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________
UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6446 BOYCE F. MARTIN, JR., Circuit Judge. Reginald Boxley v. - appeals his conviction of possession of sixty grams of crack > cocaine with the intent to distribute under 21 U.S.C. , § 841(a)(1). Based on the reasoning of the district court, we REGINALD BOXLEY, - Defendant-Appellant. - affirm the judgment. We write only to elaborate on two issues: (1) the qualification of testimony regarding canine N searches, and (2) the operation of the presumption under the Appeal from the United States District Court doctrine of spoliation. for the Western District of Tennessee at Jackson. No. 98-10045—James D. Todd, Chief District Judge. I. Testimony on Canine Searches: Qualifications
Argued: April 27, 2004 On the night he was arrested in December of 1997, Boxley was subjected to a canine search for drugs by a drug-detection Decided and Filed: June 22, 2004 dog, Cuffs. Though Cuffs alerted to Boxley’s pant pocket, the police found no drugs in the pocket or on Boxley’s body. Before: MARTIN and ROGERS, Circuit Judges; BELL, The police did, however, find drugs nearby and, based in part Chief District Judge.* on Cuffs’s alert, arrested Boxley. At Boxley’s trial for possession of cocaine, the prosecution submitted testimonial _________________ evidence by Officer Anderson, Cuffs’s handler, that drug dogs alert to aromas of drugs, not drugs themselves, and that COUNSEL Cuffs’s alert to Boxley’s pocket demonstrates that Boxley carried an aroma of drugs. This testimony was intended to ARGUED: David W. Camp, PETTIGREW & CAMP, link Boxley to the drugs that were found in his vicinity that Jackson, Tennessee, for Appellant. Christopher E. Cotten, night. On cross-examination, Boxley asked Officer Anderson whether he had any documentation, such as “search find * The Honorable Robert Holmes Bell, Chief United States District sheets,” to verify the dog’s prior history and accuracy. Judge for the Western District of Michigan, sitting by designation.
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Anderson stated that the department did not keep accuracy We also determined that it is not necessary for the records for drug dogs, but that Cuffs was certified as a drug government to show that the dog is accurate one hundred dog after a two-month training program. Anderson also percent of the time, because “a very low percentage of false explained that Cuffs’s record on the department’s computer positives is not necessarily fatal to a finding that a drug database was deleted after Cuffs passed away, more than two detection dog is properly trained and certified.” Id. In Diaz, years before Boxley’s trial. When asked whether Cuffs had we concluded: alerted in the past to a finding of no drugs, as he did in this case, Anderson acknowledged that Cuffs had done so one When the evidence presented, whether testimony from other time in his prior sixty to seventy searches. Anderson the dog’s trainer or records of the dog’s training, also stated that no dog can be “one hundred percent accurate.” establishes that the dog is generally certified as a drug On appeal, Boxley claimed that the district court abused its detection dog, any other evidence, including the discretion in allowing Anderson’s testimony because Cuffs’s testimony of other experts, that may detract from the qualifications could not be documented or verified. reliability of the dog’s performance properly goes to the credibility of the dog. Lack of additional evidence, such We recognize that an alert in the context of a canine as documentation of the exact course of training, narcotics sniff indicates that narcotics are present in the item similarly would affect the dog’s reliability. As with the being sniffed or have been present in such a way as to leave admissibility of evidence, generally, the admissibility of a detectable odor. United States v. Buchanon, 72 F.3d 1219, evidence regarding a dog’s training and reliability is 1217 n.1 (6th Cir. 1995). Thus, we now consider whether the committed to the trial court’s sound discretion. testimony regarding the alert in this case is reliable. This Court considered the reliability of testimony as to canine Id. at 394. Thus, after it is shown that the dog is certified, all searches in United States v. Diaz, 25 F.3d 392 (6th Cir. 1994), other evidence relating to his accuracy goes only to the for purposes of determining whether a canine’s alert could credibility of the testimony, not to the dog’s qualifications. satisfy probable cause for a warrantless search of a car in a See United States v. Sanchez-Pena, 336 F.3d 431 (5th Cir. public parking lot. For guidance in determining whether such 2003) (evidence that the dog was certified was sufficient testimony was admissible without documentation verifying proof of his training to make an effective alert); United States the dog’s reliability, we applied general principles of evidence v. Daniel, 982 F.2d 146, 152 n.7 (5th Cir. 1993) (noting that law. there is no requirement of an affidavit demonstrating the reliability of a drug-detecting dog); United States v. Wood, We held that in order to admit evidence of a dog’s alert to 915 F.Supp. 1126, 1136 n.2 (D.Kan.1996), rev’d on other an aroma of drugs, it is not necessary to provide the dog’s grounds, 106 F.3d 942 (10th Cir. 1997) (“[w]ith a canine, the training and performance records, as it is similarly reliability should come from the fact that the dog is trained unnecessary to qualify a human expert in this way. Rather, and annually certified to perform a physical skill. When the testimony as to the dog’s record is sufficient. Id. at 396. We annual certification process involves actual field testing and stated: “[w]hile training and performance documentation grading of the canine’s drug-detection skills . . . the canine’s would be useful in evaluating a dog’s reliability, here the reliability is sufficient for a probable cause determination testimony of [the dog’s handler] sufficiently established the absent some circumstance that justifies a more complete dog’s reliability.” Id. examination of the canine’s skill and performance.”). In this case, Officer Anderson testified that Cuffs was certified as a No. 02-6446 United States v. Boxley 5 6 United States v. Boxley No. 02-6446
drug detection dog after a two-month training program. preservation would have yielded fingerprint evidence. The Because Cuffs was certified, the district court properly government also demonstrated that the police did not act with admitted Anderson’s testimony. any intention to destroy evidence. In Nationwide, 174 F.3d at 804, this Court defined “intentional destruction” not as a II. Instruction on Spoliation of Evidence knowing and willful removal of evidence, but as removal with the “purpose of rendering it inaccessible or useless to the At trial, Boxley requested the following jury instruction: defendant in preparing its case; that is, spoiling it.” In this case, testimony adduced at trial indicated that several police The government in this case has failed to take efforts officers handled the bag that contained the drugs. However, toward preservation of certain fingerprint evidence. The as the government contends, there is nothing to indicate that failure to preserve this evidence creates a rebuttable the officers did so in bad faith. Rather, the proof at trial presumption that the missing evidence may have been indicated that the bag was passed around “because it was the favorable to the defendant. This presumption could be largest amount of crack any of them had ever seen.” sufficient to create a question of reasonable doubt on the issue of whether Reginald Boxley ever possessed the We agree with the district court: “the most that has been cocaine base charged in his indictment. shown is that the policemen did not maintain and control the evidence in a manner consistent with good police tactics. But In arguing for a presumption based on the government’s there was no bad faith involved.” Because the fingerprints “failure to preserve” evidence, Boxley claims spoliation. were not likely to be lifted from the evidence notwithstanding Spoliation is defined as the intentional destruction of evidence the officers’ actions, and because their actions were not in bad that is presumed to be unfavorable to the party responsible for faith, the motion for a jury instruction on spoliation was its destruction. See Nationwide Mut. Fire Ins. Co. v. Ford properly denied. Motor Co., 174 F.3d 801, 804 (6th Cir. 1999). III The doctrine traditionally operates against the defendant in a criminal prosecution. For example, the prosecution usually For the foregoing reasons, we AFFIRM the judgment of the requests a jury instruction on spoliation when there is district court. evidence that the defendant intentionally destroyed evidence again him. Here, Boxley argued, unconventionally, for the use of a spoliation instruction against the police, so that the jury would exercise an unfavorable presumption against the prosecution. Boxley argued that in order to hold the government to its burden of proving guilt beyond a reasonable doubt, he should have every access to presumptions in his favor. The facts of this case do not warrant exercising the presumption. At trial, the government demonstrated that there was very little chance that even the most diligent