DOG FAILS 'PROBABLE CAUSE' TEST

Canine's Drug Find Tossed Out By Judge

Prosecutors won't get to tell a jury about 560 pounds of marijuana
seized from a motor home because the Knox County Sheriff's Department
narcotics dog that alerted on the vehicle is wrong more times than
he's right, a federal judge has ruled.

U.S. District Judge Leon Jordan ruled there was no probable cause for
officers to search the motor home of David M. Stonebreaker, 34, and
Pamela L. Whitmore Stonebreaker, 32, of Virginia.

A marijuana conspiracy charge brought against the Stonebreakers
stemmed from Sgt. John Wilson's Aug. 31 stop of their motor home near
the West Town Mall. While detaining the couple, a German shepherd
named Falco alerted to the odor of narcotics, and the officers
searched the recreational vehicle and found the pot.

"The defendants argue that there was no probable cause to search
their vehicle because Falco was unreliable and there was no other
corroboration to support the search," Jordan wrote in an opinion
issued Tuesday. "This court agrees."

His ruling reverses a January opinion by U.S. Magistrate Thomas
Phillips finding probable cause to both stop and search the RV.
Jordan said he was concerned that Falco and his handler, Kevin
Holbert, were certified only by a local K-9 school, but that the
"real concern" was the dog's reliability.

"Falco is correct much less than half the times he is used to detect
the odor of narcotic substances," he wrote, referring to defense
testimony during a hearing in December that Falco alerted 225 times
between 1998 and 2000, but officers found narcotics only 80 times.

"This court can only speculate as to why Falco's accuracy record is
so low," Jordan wrote. "Perhaps it is the way he was trained, or
perhaps he is used too often. Nonetheless, based on a 35.5 percent
accuracy, this court cannot find that 'there was a fair probability
that contraband or evidence of a crime' would be found in the
defendants' vehicle after Falco alerted to the odor of narcotics."

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. Jordan ruled those statements will
be suppressed.

"Although there is always a temptation in cases of this nature when a
substantial quantity of drugs ... are found to let the end justify
the means, it must be remembered that the courts only see cases in
which the conduct of the officer resulted in contraband being found,"
Jordan wrote, quoting a prior case.

"We must accept that courts will always be 'thwarting' what some may
view as a good piece of police work when a motion to suppress is
granted in cases of this nature. Notwithstanding the importance of
drug interdiction, however, (the court is) still charged with the
responsibility of seeing that the interdiction occurs without the
Constitution being violated."

Jordan said he reluctantly also found that the initial stop of the RV
for running a red light was lawful and that the couple's detention
following the stop was reasonable.

The ruling pleased defense attorneys Jim Varner, Bob Ritchie and
Richard Gaines.

"The vigilance of the court is absolutely necessary to the protection
of basic democratic principles, and these rulings are rare but
welcome," Ritchie said.

Gaines said he knows of few if any cases that have withstood appeal
based on the reliability of a dog.

Assistant U.S. Attorney Hugh Ward said his office hasn't decided
whether to appeal.