Wiggs v. State

72 So. 3d 154, 2011 Fla. App. LEXIS 12146, 2011 WL 3300139
District Court of Appeal of Florida·Decided August 3, 2011·No. No. 2D09-3545·Published·Cited by 2 cases

Opinions

SILBERMAN, Chief Judge.

While James L. Wiggs was stopped for a traffic infraction, a drug-detection dog alerted on his vehicle. Deputies searched the vehicle and found cocaine inside. Wiggs entered a plea to the charge of possession of cocaine with intent to sell or deliver while reserving the right to appeal the denial of his dispositive motion to suppress. We reverse because the dog’s alert on Wiggs’ vehicle did not provide probable cause to search.

Just before midnight on August 14, 2007, a Sarasota County deputy stopped Wiggs’ vehicle for running a red light on U.S. 301. The deputy detained Wiggs in order to prepare a warning citation. During the detention, a drug-detection dog named Zuul alerted to Wiggs’ vehicle. A search of the vehicle revealed the cocaine that forms the basis for the charge in this case.

Wiggs filed a motion to suppress the cocaine in which he argued that Zuul’s alert did not provide probable cause to search his vehicle. Wiggs challenged Zuul’s reliability and cited evidence of numerous “false alerts” by the dog in the field. At the hearing on Wiggs’ motion to suppress, the State presented testimony and documents regarding Zuul’s training and field record.

The primary witness called by the State was Zuul’s handler, Deputy Indico. Deputy Indico testified that Zuul was acquired from a German Shepherd breeder in Hungary; the dog was selected based on his aggressiveness and motivation. Deputy Indico began training Zuul in February 2007. Deputy Indico and Zuul completed an eighty-hour narcotics training course offered by the Sarasota Sheriffs Office as well as a 400-hour patrol course. In addition, Deputy Indico and Zuul were certified by the Florida Department of Law Enforcement (FDLE) and National Police [156] Canine Association (NPCA). Deputy Indi-co and Zuul’s training and certification process was completed on April 27, 2007.

Zuul lives with Deputy Indico in order to build a bond between them. The dog was trained to detect different scents of narcotics by placing the drug on top of a bean bag so the bag absorbed the scent. Then the bean bag was introduced to the dog in the form of a hide-and-seek game in which the dog used his nose to locate the bean bag. Eventually, the dog was introduced to the actual narcotic. Zuul was trained to detect marijuana, cocaine, methamphetamine, and heroin.

Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul’s body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriffs trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.

To obtain NPCA certification Deputy Indico and Zuul had to meet specific NPCA training standards, which were admitted in evidence, and achieve 75 percent accuracy. The pair had to find narcotics in two out of four vehicles and from two out of three rooms within a building. The FDLE certification was for apprehension, tracking, and building searches but did not include any narcotics detection training.

After graduation Zuul and Deputy Indi-co continued to train on a weekly basis. They have been certified every year by the requirements set forth from the NPCA training standards. Deputy Indico kept monthly training and scent detection logs which the State introduced in evidence. The logs covered Zuul’s initial training in February 2007 as well as his weekly training up until Wiggs’ stop on August 14, 2007.

Deputy Indico also kept a monthly report of Zuul’s field activity from April 2007 until August 2007, which the State introduced in evidence. On the positive vehicle alerts that did not result in a drug find, or unverified alerts, Deputy Indico documented any history the vehicle or its passengers had with drugs. Deputy Indico acknowledged that Zuul had not been trained to refrain from alerting to residual odors. Thus, it was important for Deputy Indico to document the history of the driver and vehicle on unverified alerts. Deputy Indico explained that he obtained the histories by interviewing the driver or passengers. If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert. Deputy Indico did not document the details of the alleged drug histories.

Deputy Indico began using Zuul to search for narcotics during vehicle stops on May 14, 2007. During the first stop Zuul alerted and a marijuana pipe was discovered. The next day, May 15, Zuul alerted on another vehicle, but nothing was found. Deputy Indico documented that the passenger admitted using cocaine at some time before the stop. On May 17, 2007, Zuul alerted to a vehicle, but no [157] narcotics were found. The deputy documented that the vehicle had a “narcotics history.” Similarly, Zuul alerted on May 18, 2007, and nothing was found, but the driver admitted to smoking marijuana. On June 2 and 9 Zuul sniffed vehicles for drugs but did not alert.

On June 17, 2007, Zuul alerted at the driver’s door of another vehicle but no drug that Zuul was trained to detect was found.1 This time Deputy Indico documented that the passengers admitted to smoking marijuana. On June 29 Zuul alerted on the driver’s side door of a vehicle but there was no find. According to Deputy Indico, the vehicle and owner had a narcotics history.

On July 2, 2007, Zuul sniffed a vehicle for drugs but did not alert. On July 8 and July 9 Zuul alerted on vehicles, and narcotics were discovered. But on July 24, 25, and 30 Zuul alerted on vehicles in which no drugs were found. Similarly, on August 14 Zuul alerted on two different vehicles, but no drugs were discovered. In four of the five preceding instances, Deputy Indico documented that either an occupant of the vehicle had smoked marijuana or the vehicle had some type of narcotics history. In the fifth instance, Deputy Indico testified that he smelled the odor of burnt marijuana. Finally, on August 15, 2007,2 Zuul alerted to Wiggs’ vehicle and drugs were found inside.

In summary, Deputy Indico and Zuul had been summoned to seventeen vehicle stops between May and August of 2007. Ten of these encounters resulted in Zuul alerting on the vehicle with no discovery of drugs. Four post-alert vehicle searches, including Wiggs’, resulted in the discovery of drugs. And three encounters ended with no alert.

Free access — add to your briefcase to read the full text and ask questions with AI

Wiggs v. State, 72 So. 3d 154, 2011 Fla. App. LEXIS 12146, 2011 WL 3300139 (Fla. Ct. App. 2011).

72 So. 3d 154 (Wiggs v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Blalock v. State
98 So. 3d 118 (District Court of Appeal of Florida, 2012)