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United States v. Walsh

United States District Court, N.D. Texas, Amarillo Division

August 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JESSICA MARIE WALSH, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE.

         Defendant Jessica Marie Walsh ("Walsh")-who is charged with the offense of possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3)-moves to suppress all evidence-including contraband and photographs seized in connection with the search of the vehicle Walsh was driving and statements of Walsh. Following an evidentiary hearing, and for the reasons that follow, [1] the court denies the motion.

         I

         On February 8, 2017 Deputy Joel Skinner ("Deputy Skinner") of the Gray County, Texas Sheriffs Office was patrolling Interstate Highway 40 in Gray County. Deputy Skinner has been a law enforcement officer for the Gray County Sheriffs Office for eight years, and has been a canine handler since May 2014. On the date of the stop, Deputy Skinner was operating a canine unit with his canine, Lewigi.

         Deputy Skinner has been working with Lewigi, a Belgian Malinois, since 2014. He trains monthly with Lewigi, either in Amarillo or with other Gray County Sheriffs Office canine handlers. Deputy Skinner also has approximately ten years' experience training drug-detecting dogs and their handlers with his father Jim Skinner, who is also a Gray County Sheriffs Office canine officer.

         Lewigi was initially trained by AMK9, a private security firm in Alabama. He is trained to detect marihuana, cocaine, heroin, and methamphetamine. In addition to narcotics detection, Lewigi is also trained as a patrol dog, which means he may be used for apprehensions and building searches. Before he was donated to the Gray County Sheriffs Office, Lewigi worked for AMK9 in Afghanistan. Lewigi was four years old when he began working with Deputy Skinner. Lewigi is trained to respond to commands in Dutch.

         In March 2016 Lewigi was certified by both the National Narcotic Detector Dog Association ("NNDDA") and the National Police Canine Association ("NPCA"), and he was certified again by both organizations in March 2017 (the month after Walsh's stop). The NNDDA certifications consist of building searches, and the NPCA certifications use both buildings and vehicles. Each certification required Lewigi to perform in a controlled environment using single-blind controls, i.e., tests in which the handler does not know where drugs are hidden. The NPCA certification also uses some scenarios in which no drugs are present, to test the canine's reaction to the lack of a trained odor. Lewigi has never failed a certification, and has never given a false alert (i.e., given a final response to an area lacking any trained odors) during certification testing. In training activities outside of certification, Lewigi has given only one false alert out of 798 exercises.

         Lewigi also has a history of reliability in the field. Deputy Skinner documented Lewigi's performance during training and deployments from 2014 to June 2017, with the exception of a two- or three-month period that was lost in a transition between recordkeeping systems. According to these records, Deputy Skinner has deployed Lewigi in the field to conduct a free-air sniff 173 times, and Lewigi alerted 84 times. Of these 84 alerts, 75 were substantiated by the finding of drugs, and 80 were substantiated either by the finding of drugs or something else, such as a noticeable smell or residue of marihuana.

         Lewigi is a passive alert dog, which means that his trained final response to detecting the odor of certain drugs is to sit. Lewigi also exhibits other odor responses to detecting drugs, such as changing his breathing and his body posture. More specifically, he closes his mouth, takes shorter deeper breaths, pins his ears back, and "detail searches" (sticks his nose closer to an area, such as a door seam). Deputy Skinner has observed Lewigi exhibiting these responses during the approximately three years they have worked together.

         When Lewigi conducts a free-air sniff, Deputy Skinner and Lewigi typically utilize a "reverse search pattern, " in which they begin at the driver's side headlight, move back along the driver's side of the car and around the trunk to the passenger's side taillight, then change direction and make a full clockwise circle of the car, and, finally, when back at the trunk, change direction again and search counterclockwise up the passenger side to the hood. During the first pass of an area, Deputy Skinner typically allows Lewigi to freely search, without much direction from his handler; during subsequent passes, Deputy Skinner directs Lewigi to search certain areas. According to Deputy Skinner's testimony, when Lewigi shows noticeable odor responses, he typically also comes to final alert.

         On February 8, 2017 Deputy Skinner stopped Walsh's vehicle for following a semi truck too closely. After making initial inquiries that aroused his suspicion that Walsh was involved in criminal activity, Deputy Skinner requested Walsh's consent to search her car. After Walsh refused to give consent, Deputy Skinner asked for Walsh's consent for his dog to do a free-air sniff of the car, and Walsh agreed.

         Deputy Skinner retrieved Lewigi from his patrol car. Deputy Skinner and Lewigi began to search from the front driver's side toward the rear driver's side. When they rounded the car's trunk, Lewigi barked and jumped his front paws onto the trunk. Deputy Skinner testified that he interpreted both of these behaviors, in addition to Lewigi's continued attention on the trunk around the license plate area (instead of continuing with the search pattern), as responses to trained odors. Deputy Skinner put his hand on the car's trunk and said "back, " and "search again." Lewigi continued to sniff around the license plate area. Deputy Skinner interpreted this as a detail search focused on the openings near the rear license plate and lights.

         Deputy Skinner and Lewigi resumed searching in a clockwise direction around the car, and made their way to the passenger side. When they reached the trunk a second time, Lewigi jumped toward it again, similar to the first time. This time, Deputy Skinner noticed that Lewigi took shorter breaths, put his ears back, and again detailed the area around the license plate. Finally, Lewigi came to a near-sitting position.

         At the same time that Lewigi was going into a sitting position, Deputy Skinner said something out loud. Deputy Skinner testified at the hearing that he said "what?" He explained that this remark was not a command to sit, and that Lewigi's command to sit is a two-syllable Dutch word that is pronounced "sit-ay." Deputy Skinner admitted that it was a mistake to speak at the same time that Lewigi was signaling his final alert. But he also testified that he had talked to Lewigi in a similar way during training exercises. After Lewigi stopped and ...


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