IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case No. 92-00000-01

)

xxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________________)

MOTION FOR DISCOVERY OF DETECTOR DOG

INFORMATION AND SUGGESTIONS IN SUPPORT THEREOF

COMES NOW the defendant, xxxxxxxxxx, by and through his attorney, Daniel E. Monnat of Monnat & Spurrier, Chartered, and respectfully moves the Court for an Order requiring the government to disclose and allowing the defendant's attorneys to inspect, copy, photograph and possess those items set forth below:

1. The name and present address of the owner of the detector dog named "Rocco", allegedly utilized in this case.

2. The name and present address of the owner of the detector dog named "Homer", allegedly utilized in this case.

3. The name and address of Rocco's veterinarian.

4. The name and address of Homer's veterinarian.

5. All records, documents, transcripts, certifications, notes, memoranda or other documents, as well as any such information contained in any magnetic storage devices (e.g. computer hard drives, magnetic tape, floppy disks, and any other such storage media) concerning the following:

a. Any and all training, testing or certification of the detector dog named "Rocco", allegedly utilized in this case.

b. Any and all training, testing or certification of the detector dog named "Homer", allegedly utilized in this case.

c. Any and all records of the job performance of the detector dog named "Rocco", allegedly utilized in this case, including, but not limited to, all records showing the number of times the dog has been exposed to suspected illegal material and the number of occasions on which Rocco has correctly alerted and the number of occasions on which the dog has incorrectly alerted. This request includes records of real exposures and simulated exposures conducted for testing purposes, and includes, but is not limited to, K-9 Narcotics Search forms, Detector Dog Utilization forms, and any other similar forms, whether relating to real or simulated situations and whether relating to closed or active cases of any government agency using the dog.

d. Any and all records of the job performance of the detector dog named "Homer", allegedly utilized in this case, including, but not limited to, all records showing the number of times the dog has been exposed to suspected illegal material and the number of occasions on which Homer has correctly alerted and the number of occasions on which the dog has incorrectly alerted. This request includes records of real exposures and simulated exposures conducted for testing purposes, and includes, but is not limited to, K-9 Narcotics Search forms, Detector Dog Utilization forms, and any other similar forms, whether relating to real or simulated situations and whether relating to closed or active cases of any government agency using the dog.

e. With regard to the handler of the detector dog "Rocco" in this case, Detective Brad Agnew, the following: Any and all information concerning the handler's education and training in handling and interpreting signals given by detector dogs, including, but not limited to, the name and location of any school or class attended by the handler, the length of the training or education and interim and final grades, if any, received by the handler, any certification received by the handler, and any training or education the handler has received since being certified; and any and all information concerning the experience of the handler since he began handling detector dogs, including, but not limited to, records of all actual and simulated exposures of any detector dogs being handled by Detective Brad Angle to suspected controlled substances or items of property which might contain controlled substances, and records evaluating the accuracy of either the dog or the handler on those occasions.

f. With regard to the handler of the detector dog "Homer" in this case, Officer Jim Whetbridge, the following: Any and all information concerning the handler's education and training in handling and interpreting signals given by detector dogs, including, but not limited to, the name and location of any school or class attended by the handler, the length of the training or education and interim and final grades, if any, received by the handler, any certification received by the handler, and any training or education the handler has received since being certified; and any and all information concerning the experience of the handler since he began handling detector dogs, including, but not limited to, records of all actual and simulated exposures of any detector dogs being handled by Officer Jim Whetbridge to suspected controlled substances or items of property which might contain controlled substances, and records evaluating the accuracy of either the dog or the handler on those occasions.

6. Any and all medical or veterinary records of the detector dog named "Rocco", allegedly utilized in this case.

7. Any and all medical or veterinary records of the detector dog named "Homer", allegedly utilized in this case.

8. The defendant specifically requests that the government permit defense counsel and/or their investigator, either Private Eye or Private Ear, to inspect, photograph and/or diagram the following:

a. Those portions of Mid-Continent Airport which were involved in the instant case, including, but not limited to, the area at or in which the defendant's suitcase was allegedly exposed to a detector dog named "Rocco" on December 11, 1992.

b. Those portions of DEA headquarters in Wichita, Kansas, or any other location in or at which the aforesaid suitcase was allegedly exposed to a detector dog named "Homer" on December 11, 1992.

Suggestions In Support Of Motion

In support of this motion, the defendant hereby incorporates, as if fully set forth herein, his Motion for Discovery of Documents Necessary for Preparation of Pretrial Motions, filed previously in this case, and the arguments and authorities set forth therein.

As set forth more fully in the defendant's Brief in Support of Motion to Suppress, the validity of the extended detention of the suitcase depends, in part, on whether and how the detector dogs reacted to the suitcase and whether those reactions, if any, were sufficiently meaningful to supply probable cause. In State v. Barker, 252 Kan. 949, ___ P.2d ___ (1993), the Kansas Supreme Court recently recognized the government's evidentiary obligation to lay a foundation for the reliability of the dog's reaction:

* * * On a proper showing, a narcotics dog's reaction to a vehicle may supply the probable cause necessary to justify a search of the vehicle, but there must be some evidence that the dog's behavior reliably indicated the likely presence of a controlled substance: "Obviously . . . a description of the dog's conduct, training and experience by a knowledgeable person who can interpret the conduct of the dog as signaling the presence of a controlled substance would constitute the minimum requirement for finding probable cause." Doe v. Renfrow, 475 F.Supp. at 1025.

252 Kan. at 959-60.

This is true with respect to both dogs allegedly involved in the instant case, since the government will rely upon the reactions of both dogs in attempting to sustain its burden of showing probable cause for the extended detention and subsequent search of the suitcase. The defendant needs the aforesaid information in order to adequately prepare for cross-examination of the officers involved.

WHEREFORE, the defendant prays that the Court issue an order in conformity with the above and foregoing and for such other and further relief as to the Court seems just.

MONNAT & SPURRIER, CHARTERED

By: ___________________________________

DANIEL E. MONNAT, #09363

Attorney for

C:\wwwfpd\dog.wpd