United States vs. Patterson, 65 F, 3d 68 Wisconsin 1995

The following is an article from Guns & Weapons For Law Enforcement Magazine concerning a US Federal Appeals Court decision on a narcotics bust made by Ed Frawley and his dog Gabby.

Automobile Search Incident to Arrest

Officer Folds Down Tailgate and Lifts Cover After Drug Dogs Alert United States v. Patterson, 65 F.3d 68 (Wisconsin) 1995.

A Wisconsin State Patrol trooper saw a black GMC Jimmy on the side of the road, with Johnson standing in the road ditch and Patterson working under the hood of the truck.

After speaking briefly to Johnson, the trooper went to Patterson, the owner and driver of the vehicle. Patterson said he was adding transmission fluid and did not need a tow. The trooper noticed a crack in the trucks windshield and said he would issue a warning notice for it.

According to the trooper, Patterson seemed nervous, did not make eye contact, and was sweating heavily despite a temperature in the upper sixties. Through the passenger window, the trooper smelled air freshener, and saw a cellular phone, fast-food wrappers, and soda cans.

The trooper suspected Patterson might be a drug courier and returned to his car for a license check. Patterson's license had been suspended and he had prior drug convictions. The trooper called for a drug-sniffing dog.

The trooper cited Patterson for driving on a suspended license. Patterson was unable to post the bond required under state law for out-of-state drivers arrested for traffic violations, so the trooper placed him in custody and put him in the patrol car. The trooper then talked with Johnson and Patterson, who gave different accounts of their travel arrangements.

Deputy Frawley arrived with the drug dog. The dog approached the truck downwind, along the passenger side, and reacted strongly to the seam in the passenger door. Frawley cracked open the passenger door, and the dog started barking and jumping around. The dog entered the truck, but could not identify the exact location of the drugs.

After the dog's reaction, the trooper believed he had probable cause to search the truck. He folded down the tailgate and noticed missing screws from the factory-installed cover on the interior. The trooper lifted off the cover and found 475.51 grams of cocaine base in two bags.

Patterson asked the court to suppress the crack, arguing the trooper should not have exposed the drug dog to the truck or allowed her inside. He also argued the dogs reaction was not reliable enough to give the trooper probable cause to search the entire truck.

At the suppression hearing, Frawley testified that he was a dog breeder with 15-years experience training drug-sniffing dogs. He had trained the dog since it was a year old and claimed it had a 98 percent success rate in locating the odor of drugs in its training exercises.

Patterson pleaded guilty to possession with intent to distribute cocaine base, but reserved his right to appeal the ruling on his suppression motion. The court took the plea, denied Patterson's motion to suppress, and sentenced him. Patterson appealed; further arguing the dog was unreliable because there had been no testimony about her rate of false positives.

DECISION: Conviction affirmed. The court properly denied Patterson's motion to suppress the drugs found in his truck.

The first search, when the trooper exposed the dog to Patterson's truck, was a lawful search incident to a valid arrest. The trooper had legitimately arrested Patterson for driving on a suspended license, and was justified in searching the passenger compartment of the car without a warrant. The dog could lawfully search and sniff the inside of the car as a limited, nonintrusive search incident to arrest.

The second search, when the trooper dismantled the tailgates interior cover, exceeded the scope of a search incident to arrest but was lawful under the automobile exception to the warrant requirement. By this point, the trooper had probable cause to believe drugs were in the car.

The trooper observed the heavy smell of air freshener, a cellular phone, fast-food wrappers, and Patterson's nervousness. Patterson's and Johnson's inconsistent accounts of their travels furthered the trooper's suspicions. The dog alerted to the odor of drugs, and the officers saw screws missing from the tailgates interior. These factors gave the trooper probable cause to search all parts of the truck, including behind the tailgate panel.

Even though there was no evidence on the record of the dog's precise rate of false positives, this omission did not mean the dog was unreliable or that its alert should not have been used to support probable cause. The qualifications of the dog and its handler, Frawley, were well established at the suppression hearing. See also: New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L.Ed.2d 768. United States v. Seals, 987 F.2d 1102 (1993).