JUDGE REFUSES TO REVISE RULING ON DRUG DOG

Prosecution Has Not Decided Yet If It Will Appeal

More than 150 innocent people had their vehicles and personal property
searched because of false alerts by one of the Knox County Sheriff's
Department's drug-sniffing dogs, a federal judge found Monday.

U.S. District Judge Leon Jordan wrote that he's still of the opinion that
the German shepherd named Falco is not a reliable drug dog.

He denied a government request to reconsider his May 14 decision to
suppress as evidence 560 pounds of marijuana seized from a motor home last
summer, as well as statements the vehicle's occupants made about the drugs.

"We're pleased the judge has maintained his position on the reliability of
this dog," said defense attorney James Varner. "We believe the court
clearly considered the proper criteria -- the use of the dog in the field.
To ignore the records of field usage would subject innocent citizens to
needless searches as a result of the dog's activities."

Assistant U.S. Attorney Hugh Ward said he and his supervisors are closely
reviewing Jordan's opinion and that no decision has been made about whether
to appeal.

"We expect the U.S. Attorney's Office will appeal this," Knox County
Sheriff Tim Hutchison said.

A marijuana conspiracy charge brought against David M. Stonebreaker, 34,
and Pamela L. Whitmore Stonebreaker, 32, of Virginia stemmed from an Aug.
31 traffic stop of their motor home near the West Town Mall. While the
couple were detained, Falco indicated he detected the odor of narcotics,
and officers searched the recreational vehicle and found the pot, according
to earlier court testimony.

Following the stop, the couple confessed to transporting large quantities
of marijuana from the Phoenix and Los Angeles areas to the Washington,
D.C., area, according to court papers filed by the U.S. Drug Enforcement
Administration.

In May Jordan ruled there was no probable cause for officers to search the
motor home because Falco was wrong more than he was right. The K-9 alerted,
indicating the presence of narcotics, 225 times between 1998 and 2000, but
officers found drugs only 80 times.

Ward asked Jordan to reconsider his ruling on the grounds that records from
Falco's controlled training show a 92 percent accuracy rate. Jordan agreed
to consider those records, but added that they don't change his opinion
that Falco is unreliable.

"Based on the law concerning the use of narcotics dogs, however, this court
remains of the opinion that the dog's reliability must be determined by its
accuracy rate in the field, calculated by comparing the number of times the
dog alerts to the number of times narcotics are found," Jordan wrote.

U.S. District Judge James Jarvis took the opposite view in an early-June
ruling on an unrelated drug case involving three other dogs, Knox County
K-9 Blec, and Knoxville Police Department K-9s, Taz and Shadow.

"With all due respect to Judge Jordan, this court cannot embrace the
argument that the dog's accuracy rate is to be determined in whole or in
part by the dog's performance in the field," Jarvis wrote.

Jarvis said using controlled searches, which consist of a handler hiding
drugs in a location and then recording the dog's performance in finding it,
is the true measure of the dog's ability.

In Monday's opinion, Jordan pointed out that the U.S. Supreme Court, in
rulings concerning the 4th Amendment right to be free from unreasonable
search and seizure, depended on narcotics dogs performing accurately.

But inaccurate or unreliable dogs, he wrote, undermine that thinking
because innocent people are more likely to be subjected to searches of
their property.

"The undersigned recalls his old quail hunting days when bird dogs were
used to find the coveys of quail," Jordan noted. "It would be hard to
imagine using a bird dog that was only right one in every three times."

Jordan found that if dogs can detect residual narcotics, their
effectiveness in finding actual contraband is diluted, increasing the
potential of innocent people having their vehicles or belongings searched.
He also noted evidence exists that dogs can be trained to disregard
residual scents.

"The court finds that this rate is so low that it cannot be said that when
Falco alerts it is more probable than not that narcotics will be found,"
Jordan wrote.