Opinion
No. 04 Cr. 929 (LMM).
November 21, 2005
MEMORANDUM AND ORDER
By Memorandum and Order dated March 25, 2005 (familiarity with which is assumed), the Court found that the affidavit upon which the warrant issued on April 6, 2004 at 3:35 P.M. by Magistrate Judge Robert M. Levy of the United States District Court for the Eastern District of New York, for the search of two adjacent storage lockers leased by defendant, adequately set forth facts from which Judge Levy could properly find probable cause for the issuance of that warrant.
In the March 25, 2005 Memorandum and Order, the Court noted (at p. 5) that "issues turning on specific facts concerning the dog's reliability in the specific context of the sniff of the storage units performed on April 6, 2004 [prior to the issuance of the warrant, and the results of which formed the principal basis for the warrant's issuance] . . . cannot be resolved without an evidentiary hearing." Such a hearing was held on July 14, 2005 (when the testimony of Detective Brian Gallagher of the New York City Police Department, the dog's handler, called by the government) was heard, and on November 7, 2005 (when the testimony of Doctor Lawrence J. Myers, an expert in issues in the use of the senses of a trained dog to detect odors, called by defendant), was heard.
Detective Gallagher described his own background in handling dogs trained to detect odors, the training of the dog, Odin, used in the search at issue, which only Detective Gallagher handles, and the search of the storage area in which the storage lockers in question were located, including the manner in which Odin searched and alerted to a seam between two storage lockers.
Doctor Myers described his (considerable) qualifications, and took no fault with the manner in which Detective Gallagher went about the search, but testified, in substance, that dogs used to detect odors can and should be certified as to their training, the maintenance of their training and their performance by an objective qualified third party, and that, since no certification was presented to him, he could not testify to the reliability of Odin. He suggested that, when search warrants are sought, such certification should be made known to the judicial officer from whom the warrant is sought.
The Court (i) does not find that any information relevant to the search that might have negatively affected Judge Levy's decision to issue the warrant was withheld from Judge Levy, (ii) does not find that there has been any showing that Odin was unreliable, (iii) finds, on the basis of Detective Gallagher's testimony, that Odin was reliable, and (iv) declines, in the absence of any directly relevant authority, to impose a rule that would require the submission of third-party certification to judicial officers asked to issue warrants on the basis of dog sniff evidence (while, at the same time, suggesting that it would be a wise practice).
For the foregoing reasons, and those set forth in the Court's Memorandum and Order of March 25, 2005, the motion to suppress the evidence seized as a result of the searches pursuant to the warrants issued on April 6, 2004, is denied.
SO ORDERED.