Legal Case Summary

Mr. Hensler, be a pleasure to hear from you. Good morning. May it please the court, my name is Suzy Hensler, and I'm appearing today on behalf of the appellant Timothy Wilson. The district court made two significant errors in this case. First, it found that an alert by a dog that signaled the presence of narcotics almost every single time he got out of law enforcement vehicle and was wrong 70% of those times. Was sufficient to establish probable cause to search the car that Mr. Wilson was riding in. And second, the court failed to grant a mistrial or a new trial in the face of baseless, persistent and prejudicial questioning that certainly could have influenced the jury's verdict. This case addresses a question which the Supreme Court did not resolve in its recent decision Florida V. Harris, and that is what happens when there is substantial evidence in the record that a dog is unreliable in the field. Here, this dog alerted 96% of the time, and he was wrong 70% of the time. When a coin toss is substantially more reliable than a positive alert by a narcotics dog, that certainly does not signal a fair probability that contraband would be found. When you say he was wrong, the judge in this case concluded first, I guess he assumed that in fact a dog is trained to alert to a scent, not necessarily the actual existence of narcotics or presence of narcotics. And the district court in this case explained why in fact those what you call incorrect or wrong numbers could have been explained by a number of different factors. What was wrong with that? Was that simply not correct on this record? That's right. The court relied on conclussary statements by the government in its argument, a close review of the field reports which were relied upon in the district court in its opinion, shows that there weren't factors in the record in those cases which suggested the presence of narcotics and most of the cases. The government referred to 20 of these 53 false reports from our perspective. And of those 20 very, very few included evidence like a direct admission by the driver of the vehicle that there had recently been drugs in the vehicle or anything that rises to that sort of behavior. The type of behavior that the Supreme Court in Harris describes in the explanatory footnote on this subject, something like I believe the Supreme Court referred to five skiers smoking marijuana in a vehicle, leaving the drugs outside of the car and five minutes later being pulled over. That is not the sort of evidence that we have in this case. In this case, we have a substantial amount of what looks like false alerts. In fact, in most of these field reports from what we believe are the false reports, there's nothing beyond the original indicators that led to the dog sniff in the first place. You don't dispute the fact that this was a well trained dog. There's evidence in the record that in fact the dog passed a certification test. Well, it did pass the certification test, but the. In fact, perform well on those tests, right? It did pass. Yes, your honor. It performed well on the certification test. However, in the field, it performed terribly as trooper orn dorf who trained as a team in his words and went through the certification process with Camo, the narcotics dog here, stated

. He did perform well in the certification test, but true for orn dorf was bear witness to every day for two and a half years when they worked together, him alerting on almost every single occasion and being wrong and overwhelming a majority of the time. And the Supreme Court has said over and over and again that a well trained narcotics dog in both in Cabalis and in United States V place is one that alerts to the. That one who signals that contraband would be found in the vehicle and we don't have that here. So what percentage should we decrease the matter of law? What was your view is that the. The old test it was drugs were found in only 31% of the alerts. Well, luckily, your honor. We don't have to your honor does not have to determine what percentage here because this was not even a close call. But you can't imagine that we could take up the issue without giving some parameters. That's right, your honor. And I believe that this dog performed so poorly in the field. So so poorly is the test. What's what if put yourself in the place of someone who's trying to write this? What boundaries are you giving us a dog being performing excuse me alerting almost 100% of the time. And in almost 100% of cases, excuse me, almost 70% of cases contraband not being recovered. So that's your boundary. So that's what we say whenever we have a dog who alerts most of the time and miss alerts 70% of the time. That's not good enough. That's right. So that and that presuppose that's not a very useful. Reaction is it. And first of all, one of the problems here is that we have the data that reflects that. And also that it is. So it it is an outlier and it's retrospective. We're deciding this after the police officer. Relied on a drug sniff of a well trained dog who passed certification when courts have suggested that it is permissible to do so. This Supreme Court has repeatedly rejected per se rules for a step from making probable cause determinations. So certification alone and viewing certification alone as evidence that a dog is reliable enough to serve as an indicator of a fair probability that contraband will be recovered. In this case would be this exactly the sort of rigid application of a probable cause determination that the court was troubled by recently inherits after the after the traffic stop. Officers noted the rental car agreement which authorized Wilson as a driver. And the Oreo was the one that was driving

. And Oreo. License was from a different state of where he indicated so. And then there were the shaking hands and breathing and everything which is. There wasn't just the dog sniff that contributed to the probable cause. It was that the driver of the car was driving from the rental agreement gave no authorization to in the license was. He misrepresented his his whereabouts. And Wilson was attempting to show a law enforcement badge where wasn't a law enforcement officer. I mean cameo aside. And some other. Your honor all of those other indicators do not rise to the level of probable cause and they would not be a sufficient basis to search the vehicle and camos alert added. You can't divide the conquer here. You have to take some. That's right, your honor and under the totality of the circumstances excluding the dogs positive alert. There was a not a sufficient basis to search the vehicle and the dogs and if added nothing because these officers knew if the dog was getting out of the car he was going to alert and they knew that that told them nothing about whether or not they were likely to find drugs in the car. So the basic point that Florida the Harris is making is the reason that the certification program tend to be valid. To be a greater weight in the field performance is because a huge amount of the time. The drugs will have been taken out of the car, but the distinctive odor will still remain and so dog may alert positive, but the drugs may have been removed from the automobile or the search. I mean, it may be that the drugs are just remarkably well hidden and escaped detection. So I didn't the court look upon that as a rationale. That's right, your honor. However, the court did not directly address the issue and on this record. It's not possible to say that in the other 70% of cases that the drugs had simply been too well hidden or removed from the vehicle, but your honors I would like to address my second point quickly before you get to that and I'm sorry to. You may not get to that, but Dredz Duncan pointed out the problem with trying to fashion a test in this case to address this issue of what is good enough. Why do we even need to get there if we can find just based on the good faith exception that the officers acting good faith based on our albeit unpublished case law were entitled to rely simply on the certification and the prior out of the field reliability of this canine. Why isn't that good enough? Your honors may I briefly conclude because I see my time. I may briefly. Yes. Judge Diaz in the in the four circuits case law on good faith does not apply in this case. It's really a red herring because there was no third party error

. There was no third. It was our error. Well, frankly, I don't even know if we're wrong, but in fact the case law as it existed at the time these officers were operating out in the field said that it was entirely appropriate to rely solely on the dog certification and reliability outside of the field period. And the in the third party could be the certifying authority. Yeah, I probably got it wrong. No, I'm just supplementing his question. I'm not changing it. Okay. Your honor. First of all, there is there was no mandatory authority on the question of what happens when there is certification and something else and the something else here is substantial evidence that in the field the dog did not perform reliable reliably. And beyond that, the certification authority was not a distinct third party as trooper or dors testified. He what he trained with camo as a team. He's got he obtained certification with camo as a team. So there in cases like this where the police error itself is what is at issue in the fourth circuit in the fourth amendment inquiry. It's not appropriate to apply good faith. What's the error specifically what's the error relying on a dog that is that falsely alerts almost 70% of the time in the field and these officers had a had a front row street. Excuse me, front row seat to his unreliable conduct in the field and for that reason they should not have relied upon his alert in determining to search the vehicle. Thank you. Mr. Monter, Marano, please to hear from you. Thank you, Your Honor. Morning. I represent Louis, the driver of the vehicle question, not the renter, of course. And there are two issues I'd like to address to the court's attention as the court is aware we have adopted the argument made by Ms. Hansel on behalf of Mr. Wilson concerning the drug dog issue. But you have the answer to your questions the court might have about those, but I like to talk about the polygraph my client passed in September of 2010 well over a year before the trial in this matter. The polygraph was presented to the government, the CV and background information concerning the FBI polygrapher retired who had 30 years of service at the Bureau. And when the government sought a re-indipment of fully a year after my client passed the polygraph, they did not bother to inform the grand jury that my client had passed the polygraph with flying colors

. And why was it required to do that? DOJ manual requires it. Well, that's just a policy, Mallory. It is absolutely true. It doesn't implicate or require the government to do anything. And if the government chooses to violate its policy and not to do so, it is then up to the court under its super advisory power to ensure that the grand jury is permitted to undertake its historic function as Brandsburg tells us. So what super advisory authority does the court have over what evidence the prosecution declines to represent the clients to present to the grand jury? I mean, if they put on purgid evidence deliberately, then we'd have a different case. I thought that was good, but it's a big debate over polygraphs and how reliable they are. No doubt. I mean, every quote sent of omission. Absolutely, Your Honor. To present this evidence of all that evidence. I mean, what authority does it, what supervisory authority over grand jury does the court possess to overturn an indictment and dismiss them indictment? Well, I think just missing indictment might have been a step too far and we can see that in our papers. What I would suggest, however, that is that Your Honor is absolutely correct. There is at least a question of how far the court can go. And I think that is an issue that we must analyze in a case by case basis. Let us look at this case. There's no objective evidence that Mr. Horrio was involved. None. There's not an admission. There's no forensic evidence. There's no prints. He acts and I'm sure Your Honor has watched the videotape. It's in the joint appendix. He acts absolutely unruffled during this, whereas Mr. Wilson looks like a poster child for ADHD. He's bouncing off the walls. He's shaking. He's nervous

. He changes his story repeatedly. Mr. Horrio does nothing of the kind. Mr. Horrio's version of what happened remains absolutely consistent from the date of the arrest July 23, 2010 through the trial at the end of 2011. And it remains unchanged to this day. If there was evidence of Mr. Horrio's guilt and they chose not to put on the polygraph, that could be absolved in some way, shape or form. But when you have no evidence of guilt, except his presence, which the jury instructions used in the District of Maryland and in this circuit, clearly show is not happened. You're found in guilty under a much tougher standard than a grand jury. Well, Your Honor, it is said in this business that it takes skill to convict the guilty, but real talent to convict the innocent. And if that's true, then I'm a talented attorney. I was trial counsel. It's on me. I can't put it any differently. I don't know how the jury convicted it. Mr. Horrio, take a stand. Yes, he did. The jury just not found him. I mean, it would kind of rise. I would suppose that's part of it, but of course, the question of credibility and their ability to view that credibility, where the credibility is crucial to the jury's determination as this court has found when it is permitted the admission of polygraph evidence as in the blade case. I would submit to the court. The jury didn't get a very fair picture of who Lou a Horrio was. They were they were permitted to have questions about his willingness to take the polygraph when there was no question about that. There is a I think as well to be very honest, Mr. Horrio is an unsophisticated and not especially intelligent young man. He's not so young. He's in his 30s

. He didn't make a very good witness compared to an experienced state trooper. It was part of the evidence against Mr. Horrio, Mr. Wilson's testimony. Only in the sense that Mr. Wilson denied knowledge. I tried to think of the other. My client refused to do so because he had no knowledge of it. He's to this day doesn't know how the crack got into the car. It's easy to suggest it was Mr. Wilson. It wasn't in a bag. Yes it was. I alluded to Burger King receipt. Absolute. Half a mile from your client's home in New York. That's some evidence of jury good. That's that's some evidence circumstantial. I understand your painting a picture here, but there was evidence in this case on which a jury could come to that conclusion. And a grand jury knowing my client had passed a polygraph might not have returned an indictment because the evidence was so thin. The government failed to investigate Mr. Wilson. We did that and we found that that he grew up at a home and he freely admitted this on on cross-samination by me. He grew up at a home closer to the Burger King than where my client then lived. Number one. He's actually make us efficiency of the evidence argument before us. I mean I know you made an argument on I guess you adopt a suppression. And I'm in Wilson is made a motion to sever and Wilson made a motion. To for mistrial and you made the polygraph argument and then there was a safety valve argument

. But did you actually you seem to be making a sufficient to the evidence argument, but did you make that argument? I did make it because I don't believe the case law would support the sufficient to the argument. Assessions to the evidence argument when it is applied to the jury's consideration of case. What are we how do we reverse if you didn't make the argument? Because my argument is that there's a question of sufficient to the evidence to obtain the indictment. When there is a question. I don't understand how that survives to this point. And I'm a little actually baffled by what your argument gets you. First as has been pointed out the policy, the manual itself says it doesn't create any substantive rights. No question. So I don't. Even if we agreed with you what difference would it make? Because the supervisor power the court and be inserted to question the conduct of the government. When it's own policy required this number. It didn't but we've just established that the manual doesn't require it. I believe you would have to I mean you would have. It says it doesn't. So what would the court be enforcing and what does difference does it make now when we are so far past. The indictment and have a conviction by a jury who had the opportunity to observe Mr. Holy. Because the entire trial process ultimately ends up infected by the government's refusal to present this information in a case this thin to the grand jury. And the supervisor power the court is not to be used in this case to effectuate a substantive right which is not created by the DOJ manual. But to view the entire trial process and the governments what a week term misconduct in failing to disclose this. Did the grand jury get into the trial at all did you see did not. Did you see to introduce it. I did your honor. You did. I did. And we asked for that we asked for other immediately to steps short of that we asked for the entire ball of wax. But that's not to suggest the court was appropriate in saying you don't get the whole ball of wax. Monomerano will give you some of it will do something to level the playing field in Blake for example the fact that the client took a polygraph voluntarily was used to dispute his claim when he testified that he had been. And he was

. We'll hear from you in a bottle. Thank you, Your Honor. May I please the court, Your Honors? I'm Josh Call for the government. I'd like to start with the canine issue. The canine in this case was found by the district court and its memorandum opinion to be reliable the court heard testimony from the canine handler. It had the presentation of numerous field and training records that relate to camo as well as his certifications that established his reliability. And it had camo's field records. The court conducted a close analysis of camo's reliability based on the records from his training based on his certification and based on his field performance. And the court found that camo was reliable and that his alerts therefore gave rise to probable cause. That conclusion is supported by the record. And although this case was decided in the district court before the Harris court issued its opinion. Judge Corals in addressing this issue essentially addressed it the exact way that the Supreme Court in Harris suggested that these types of issues. Is this he addressed he ruled before Florida the Harris that's correct. And Judge Corals was pression in his analysis as to how the Supreme Court would dictate that analysis in this types of cases should go. He did find that the certification of the dog alone established camo's reliability. Following this courts unpublished opinion in Wu. But he also went beyond that he looked at the training records. He found based on the training records that camo had established that he was extremely accurate. The court of the Harris kind of backed him up. Absolutely did your honor. The court in Harris explains that probable cause determination and Ms. Hensler is correct about this. It can't be based on a per se or a bright line test. It's a multi factor test. But Judge Corals engaged in exactly that sort of analysis here. I would note that the court in Harris wrote that in most cases a dog's field performance records have relatively limited import and that the better measure of a dog's reliability comes away from the field in a controlled testing environment. You've got this efficiency of the evidence with respect to a horrio because you know it's we don't have a sufficiency of the evidence claim before us. But the drugs were found under Wilson's seat. The council makes the argument that of the two people the one that came on glue was Mr

. Wilson. He says the horrio was relatively composed. You'd make me feel a little bit better if you'd tell me why it was a just result to convict this man. Absolutely. First of all, this is a car that had been rented that morning by Mr. Wilson. Mr. Horrio had driven a different vehicle from New York City to New Jersey. Mr. Horrio lived in the Bronx in New York. He drove to Southern New Jersey to meet with Mr. Wilson. They then drive South coming through Maryland and are stopped. It's just the two of them the vehicle. Drugs are eventually found under the passenger seat under Mr. Wilson's seat as the court said. Mr. Horrio was not an authorized driver of the rental vehicle. Yet he was driving. I was there. Could they just be two friends driving from New Jersey and to Maryland? That was the defense essentially raised by each defendant which the jury rejected. And I think that decision was the proper one for several reasons. First of all, clearly drugs were found under the seat so there's. We use that. That alone is not sufficient. I agree, Your Honor, but that's obviously the fact that there are only two people in a car with drugs is a significant fact. It's not inconsistent with the scenario that they were just friends. That's correct. But in addition to that as Judge Diaz pointed out, the drugs were found in a Burger King bag

. The Burger King bag had a receipt from a Burger King. That was I thought it was. It was less than a mile from a Horrio's house. Remember a horrio lives in the Bronx. That's where the Burger King receipt is from. Wilson lives in Southern New Jersey. And Mr. Monomerano at trial tried to establish some. Did the Burger King receipt cover both breakfasts or whatever? Did it cover both of their meal? The Burger King. I can't really recall what the meal was. I think it was just a single meal. The government's theory at the case here on it was that. A horrio had transported the drugs from New York to New Jersey where they met and they were traveling south where Wilson had contacts. They were going to see Wilson's family. That Burger King receipt is strong corroboration from that theory because. Wilson lived. The first leg of the trip, a horrio made by himself. That's correct. A horrio drove by himself from New York to New Jersey where he met with Mr. Wilson. Now Mr. Wilson's ties to the neighborhood that Mr. Monomerano was talking about predated this event by 10 years. He hadn't lived in that neighborhood since I believe the 90s. Wilson testified against a horrio or essentially. They both testified neither I would not characterize either of their testimonies as being against the other. Both of them simply denied knowledge whatsoever. Neither of them at any point. One had no knowledge of the other ideas. Well, there's also the possibility as Justice Stevens pointed out in his concurrence in the fero that. Neither person knew what was there and that that seems a little less likely. I don't disagree with your honor but the government called a rental car. Person who had testified a trial as to all the process he did to clean out the car. That sort of thing. What was the quantity here? The quantity was I believe 300 little over 300 grams of crack cocaine. There was a distribution amount barely. Yes. And going back to the evidence against Mr. Ahorrio honor. Mr. Ahorrio's hands were shaky. The officer observed. He said they were more shaky than the typical person. In addition, Mr. Ahorrio stepped out of the vehicle during this encounter. At one point, the officer said to him, so does everything in the car belong to you? And he says no. And the officer sort of reacted. He was surprised by that response. He said, does it belong to you? He said no, don't. That's exactly right, Your Honor. And then he was asked if he would give consent to search. And he said you have to ask him referring to Wilson. He wouldn't. Now. Wilson was the renter to be sure. But those are not the types of responses that are consistent with innocence. He then was questioned by the officers later on. And he denied

. Well, there's also the possibility as Justice Stevens pointed out in his concurrence in the fero that. Neither person knew what was there and that that seems a little less likely. I don't disagree with your honor but the government called a rental car. Person who had testified a trial as to all the process he did to clean out the car. That sort of thing. What was the quantity here? The quantity was I believe 300 little over 300 grams of crack cocaine. There was a distribution amount barely. Yes. And going back to the evidence against Mr. Ahorrio honor. Mr. Ahorrio's hands were shaky. The officer observed. He said they were more shaky than the typical person. In addition, Mr. Ahorrio stepped out of the vehicle during this encounter. At one point, the officer said to him, so does everything in the car belong to you? And he says no. And the officer sort of reacted. He was surprised by that response. He said, does it belong to you? He said no, don't. That's exactly right, Your Honor. And then he was asked if he would give consent to search. And he said you have to ask him referring to Wilson. He wouldn't. Now. Wilson was the renter to be sure. But those are not the types of responses that are consistent with innocence. He then was questioned by the officers later on. And he denied. Helpability. But the officers explained that he often gave vague responses. At some points, he would put his head on the table when he was asked questions. This was not the type of encounter that. This is not the type of case where the jury had. The jury's decision to convict the defendant was not amply supported by the evidence. There were numerous reasons for the jury to conclude. Particularly given the Burger King receipt. Let me ask you a few more questions about Camo and this district judge's analysis. I agree that he. Attempted to. Explain why. The reported to be unreliability in the field might have been attributed to something else. He went through the direct and indirect evidence of. Of why. In fact, drugs could have been in the car or cars at the time when they were not physically. They found that even though the dog had alerted some of that seemed to me to be pretty skimpy to be. But the other problem I had. I think I recall this correctly is that. It appeared that the trainer in this case would only reward Camo when he alerted positively. Which is troubling me. Can you. Help us out. Absolutely. Let me address the second point. First, your honor. That there was testimony in the record that the calling, which is the device that's given to the dog. Was only given when there's a positive alert. I

. Helpability. But the officers explained that he often gave vague responses. At some points, he would put his head on the table when he was asked questions. This was not the type of encounter that. This is not the type of case where the jury had. The jury's decision to convict the defendant was not amply supported by the evidence. There were numerous reasons for the jury to conclude. Particularly given the Burger King receipt. Let me ask you a few more questions about Camo and this district judge's analysis. I agree that he. Attempted to. Explain why. The reported to be unreliability in the field might have been attributed to something else. He went through the direct and indirect evidence of. Of why. In fact, drugs could have been in the car or cars at the time when they were not physically. They found that even though the dog had alerted some of that seemed to me to be pretty skimpy to be. But the other problem I had. I think I recall this correctly is that. It appeared that the trainer in this case would only reward Camo when he alerted positively. Which is troubling me. Can you. Help us out. Absolutely. Let me address the second point. First, your honor. That there was testimony in the record that the calling, which is the device that's given to the dog. Was only given when there's a positive alert. I. I. Assume that that's the case with all narcotics canines that perhaps that's wrong. I mean, that much. Well, it's not a record, but my understanding is that that's not the way it's supposed to be. Okay. Your honor is probably correct. But I do know that you are correct. He was rewarded only when he alerted positively. But I would I would direct the honor to his. Exercise is his training exercises in which. I think that there he as the officer testified he was. They gave him I think what he called blind, which were alerts are food and things like that. To try to sort of test the dog to see if it would falsely alert. And in the training exercises that he did. Which the trooper testified there were over a hundred of those. Only one time did he falsely alert. So in cases where. Where officers knew that there might be a reason to falsely alert here. Essentially almost never did. He also never missed. An alert. Now going back to the point about the strength of those other cases. It's undisputed that in 24 of the cases that were drugs found. And I would direct the courts attention to join appendix. And could I just ask. How bad would a dog have to be. To fall outside. The purview of of house. The touchstone your honor is is reliability

. I. Assume that that's the case with all narcotics canines that perhaps that's wrong. I mean, that much. Well, it's not a record, but my understanding is that that's not the way it's supposed to be. Okay. Your honor is probably correct. But I do know that you are correct. He was rewarded only when he alerted positively. But I would I would direct the honor to his. Exercise is his training exercises in which. I think that there he as the officer testified he was. They gave him I think what he called blind, which were alerts are food and things like that. To try to sort of test the dog to see if it would falsely alert. And in the training exercises that he did. Which the trooper testified there were over a hundred of those. Only one time did he falsely alert. So in cases where. Where officers knew that there might be a reason to falsely alert here. Essentially almost never did. He also never missed. An alert. Now going back to the point about the strength of those other cases. It's undisputed that in 24 of the cases that were drugs found. And I would direct the courts attention to join appendix. And could I just ask. How bad would a dog have to be. To fall outside. The purview of of house. The touchstone your honor is is reliability. And I. Reliable and but and you're saying that as long as the dog. Is reliable in field test is certified in this reliable and field test. The fact that his reliability in the field is worse than a coin toss. Is not to be taken into consideration. Surely that can't be because even in Harris. As I recall the court. Indicated that. Controlled environment data. Could be relevant. Our position isn't that that that data in the field is irrelevant your honor. But that the significance of it in the overall inquiry is much less significant than the training and certification records, which the court. The court held in in Harris. Because in the controlled environment. There actually is a precise measure as to the accuracy of the dog. Whereas in the field. There's no way to know whether the dog is. Alerting mistakenly or it's alerting to the lingering odor of drugs. And I would say in this case. There's a very strong there's very strong evidence I think that the dog was alerting in many of these cases. To the lingering odor of drugs even where drugs. In a motions filing before the district court. The government described these in some detail. This is at pages 114 and 115 of the joint appendix. There are two lengthy footnotes in which the government goes through the 20 cases in which. There was direct evidence that somebody either had recently used drugs in the car. Or at least quite possibly had. And then it also goes through many of the 33 cases in which. There was significant evidence to think that there may have been

. And I. Reliable and but and you're saying that as long as the dog. Is reliable in field test is certified in this reliable and field test. The fact that his reliability in the field is worse than a coin toss. Is not to be taken into consideration. Surely that can't be because even in Harris. As I recall the court. Indicated that. Controlled environment data. Could be relevant. Our position isn't that that that data in the field is irrelevant your honor. But that the significance of it in the overall inquiry is much less significant than the training and certification records, which the court. The court held in in Harris. Because in the controlled environment. There actually is a precise measure as to the accuracy of the dog. Whereas in the field. There's no way to know whether the dog is. Alerting mistakenly or it's alerting to the lingering odor of drugs. And I would say in this case. There's a very strong there's very strong evidence I think that the dog was alerting in many of these cases. To the lingering odor of drugs even where drugs. In a motions filing before the district court. The government described these in some detail. This is at pages 114 and 115 of the joint appendix. There are two lengthy footnotes in which the government goes through the 20 cases in which. There was direct evidence that somebody either had recently used drugs in the car. Or at least quite possibly had. And then it also goes through many of the 33 cases in which. There was significant evidence to think that there may have been. I'll just read a few examples. These are cases where drugs were not found. The driver admitted that he and his girlfriend smoke marijuana in the vehicle. That was one case where drugs were not found. The driver stated that her cousin owns the vehicle and may have had CDS in it earlier that day. The driver stated that he may have had someone in the truck that had drugs on him or her earlier in the day. And so forth. Those are some of the 20 examples in which there's sort of direct evidence that drugs either were or may have been in the car. You're on this is joint appendix at 114 and 115 in the footnotes. The government. Puts all these together. And then the records that actually support that. Are an attachment to that filing. Which is also in the record. That's a pages. 151 to 233. So the court can. Cross reference the actual reports from the field to the government's filings. And likewise with respect to the 33 cases. Here's some examples. From the reports the driver was nervous stated that he had just gotten out of prison for drug distribution and told the story that didn't make sense. Another example driver was nervous. Friends shaking car had numerous air fresheners and driver was wanted in Y Comico County. Another situation. So the point is in. Even though. Camo in those cases. According to the defendants. Fulsely alerted

. I'll just read a few examples. These are cases where drugs were not found. The driver admitted that he and his girlfriend smoke marijuana in the vehicle. That was one case where drugs were not found. The driver stated that her cousin owns the vehicle and may have had CDS in it earlier that day. The driver stated that he may have had someone in the truck that had drugs on him or her earlier in the day. And so forth. Those are some of the 20 examples in which there's sort of direct evidence that drugs either were or may have been in the car. You're on this is joint appendix at 114 and 115 in the footnotes. The government. Puts all these together. And then the records that actually support that. Are an attachment to that filing. Which is also in the record. That's a pages. 151 to 233. So the court can. Cross reference the actual reports from the field to the government's filings. And likewise with respect to the 33 cases. Here's some examples. From the reports the driver was nervous stated that he had just gotten out of prison for drug distribution and told the story that didn't make sense. Another example driver was nervous. Friends shaking car had numerous air fresheners and driver was wanted in Y Comico County. Another situation. So the point is in. Even though. Camo in those cases. According to the defendants. Fulsely alerted. There's there's ample reason to think that. His training records. And there's. A much. Closer reflection of his. His actual skill. And more closely reflect reflect his accuracy. I also know that the training records here are not just good, but they're outstanding. He had one miss essentially. In his training. So there's. There's ample reason here to think that that camera was reliable. With respect. Briefly to the polygraph issue. I don't think so, Your Honor. And actually if the court doesn't have any questions with respect to the other issues. I just asked that the court. Affirm the convictions in this case. Thank you. Thank you. Your honors. I would like to briefly address the second. Issue raised in my brief, which was the court's era not granting either a mistrial or a new trial. After. Council for. Luea, or you raised a prejudicial line of questioning seven times. So in Judge Quarles words. He referred to Mr Wilson's drug dealing relatives, which Judge Quarles ruled had absolutely no relevance to the case. On seven separate occasions after being cautioned three times

. There's there's ample reason to think that. His training records. And there's. A much. Closer reflection of his. His actual skill. And more closely reflect reflect his accuracy. I also know that the training records here are not just good, but they're outstanding. He had one miss essentially. In his training. So there's. There's ample reason here to think that that camera was reliable. With respect. Briefly to the polygraph issue. I don't think so, Your Honor. And actually if the court doesn't have any questions with respect to the other issues. I just asked that the court. Affirm the convictions in this case. Thank you. Thank you. Your honors. I would like to briefly address the second. Issue raised in my brief, which was the court's era not granting either a mistrial or a new trial. After. Council for. Luea, or you raised a prejudicial line of questioning seven times. So in Judge Quarles words. He referred to Mr Wilson's drug dealing relatives, which Judge Quarles ruled had absolutely no relevance to the case. On seven separate occasions after being cautioned three times. And so again, this wasn't a case where there was an isolated comment and isolated reference to drugs. This was a case where co counts were co-defendants counsel returned repeatedly over the multi-day trial to a prejudicial line of questioning. Judge Paul gave repeated instructions. That's right, Your Honor. The first time this issue came up there was a three-page bench conference. He struck the question. He instructed the jury to ignore it. And the very next question was on the same subject. And it mattered in this case because as Judge Diaz pointed out, the only smoking gun evidence in this case was a Burger King receipt that pointed directly at Mr. Ahorio. That's right, Your Honor. However, there was testimony in Mr Wilson's defense by an investigator from the Federal Public Defender's office that this make and model of the car. In this make and model of the car, a person in the passenger seat could not see what was stashed underneath the passenger seat unless they put their head flush against the floor of the car. And the trooper, trooper Ornjurff also testified that he couldn't smell the drugs until his face was on the floor of the car. So there was substantial evidence that somebody in the passenger seat could not see or smell the drugs underneath the seat. And again, this smoking gun evidence pointed straight at Mr. Ahorio. So again, because the court could not cure this taint and because co-defendants counsel returned to this well again and again. And these questions related to the exact same type of conduct at issue here, drug distribution at around the same time, five weeks before the search. Mr. Chair, the co-counsel brought these things up. They didn't come up in the form of testimony. They came up in the form of questions. Well, there were certain answers to certain questions. And even at one point there was an objection and Judge Quarles overruled it on the basis that co-defendants counsel promised to tie this all up in the end. He promised to show in closing in his through its clients testimony that this drug dealing relatives defense. Doesn't make a difference from something that's a reference like this is introduced by co-defendants counsel and when it's introduced by the government. No, Your Honor. The effect is the same

. And so again, this wasn't a case where there was an isolated comment and isolated reference to drugs. This was a case where co counts were co-defendants counsel returned repeatedly over the multi-day trial to a prejudicial line of questioning. Judge Paul gave repeated instructions. That's right, Your Honor. The first time this issue came up there was a three-page bench conference. He struck the question. He instructed the jury to ignore it. And the very next question was on the same subject. And it mattered in this case because as Judge Diaz pointed out, the only smoking gun evidence in this case was a Burger King receipt that pointed directly at Mr. Ahorio. That's right, Your Honor. However, there was testimony in Mr Wilson's defense by an investigator from the Federal Public Defender's office that this make and model of the car. In this make and model of the car, a person in the passenger seat could not see what was stashed underneath the passenger seat unless they put their head flush against the floor of the car. And the trooper, trooper Ornjurff also testified that he couldn't smell the drugs until his face was on the floor of the car. So there was substantial evidence that somebody in the passenger seat could not see or smell the drugs underneath the seat. And again, this smoking gun evidence pointed straight at Mr. Ahorio. So again, because the court could not cure this taint and because co-defendants counsel returned to this well again and again. And these questions related to the exact same type of conduct at issue here, drug distribution at around the same time, five weeks before the search. Mr. Chair, the co-counsel brought these things up. They didn't come up in the form of testimony. They came up in the form of questions. Well, there were certain answers to certain questions. And even at one point there was an objection and Judge Quarles overruled it on the basis that co-defendants counsel promised to tie this all up in the end. He promised to show in closing in his through its clients testimony that this drug dealing relatives defense. Doesn't make a difference from something that's a reference like this is introduced by co-defendants counsel and when it's introduced by the government. No, Your Honor. The effect is the same. It deprives my client of a fair trial. But on the other hand, the sort of defendant is scratching and flooring on the hand of his client. And he's got to fulfill his obligations under the adversary system as well. And the judge did what he should have. And he wouldn't really come continually made references to the fact that you don't consider somebody but by virtue of their relatives. You have to judge his behavior on it. I mean, he just alluded to this once. He hammered it. Well, again, Your Honor, well, certainly Mr. O'Horios counsel had certain duty of zealous advocacy to his client as Judge Quarles himself noted. If the defense was going to be Mr. Wilson's drug dealing relatives, then he had an obligation to cut Mr. Wilson loose. Because those sorts of defenses certainly in the way that it was presented without any basis, without any basis in evidence that was offered in the trial is not consistent with Mr. Wilson's constitutional right to a fair trial. And for that reason, I ask that Your Honor's bake it his conviction. Thank you. Thank you so much. Mr. Montgomery. I post a question. Is everything on the bench yours? Because if you deny that it is and I know it's not, I saw Your Honor's walk into the courtroom carrying each your pile of documents relating to the case today. Would you be attempting? What are you asking me? Is everything on the bench yours? Because if Your Honor says no, it's not. I saw each of you bringing documents for today's arguments. And if you deny that everything on the bench yours, is it only because it's true? Where are you going with this? Mr. Call referred to Mr. O'Horios denial of everything being in the car as being his. If you watch the videotape, he attempted to explain no just the black jim bag, this mine. Trooper, a corporal canard, cuts him off

. It deprives my client of a fair trial. But on the other hand, the sort of defendant is scratching and flooring on the hand of his client. And he's got to fulfill his obligations under the adversary system as well. And the judge did what he should have. And he wouldn't really come continually made references to the fact that you don't consider somebody but by virtue of their relatives. You have to judge his behavior on it. I mean, he just alluded to this once. He hammered it. Well, again, Your Honor, well, certainly Mr. O'Horios counsel had certain duty of zealous advocacy to his client as Judge Quarles himself noted. If the defense was going to be Mr. Wilson's drug dealing relatives, then he had an obligation to cut Mr. Wilson loose. Because those sorts of defenses certainly in the way that it was presented without any basis, without any basis in evidence that was offered in the trial is not consistent with Mr. Wilson's constitutional right to a fair trial. And for that reason, I ask that Your Honor's bake it his conviction. Thank you. Thank you so much. Mr. Montgomery. I post a question. Is everything on the bench yours? Because if you deny that it is and I know it's not, I saw Your Honor's walk into the courtroom carrying each your pile of documents relating to the case today. Would you be attempting? What are you asking me? Is everything on the bench yours? Because if Your Honor says no, it's not. I saw each of you bringing documents for today's arguments. And if you deny that everything on the bench yours, is it only because it's true? Where are you going with this? Mr. Call referred to Mr. O'Horios denial of everything being in the car as being his. If you watch the videotape, he attempted to explain no just the black jim bag, this mine. Trooper, a corporal canard, cuts him off. That's the nature of the evidence in this case. Let's take something that happens and put the most incredible amount of spin on it so I was to implicate Louis O'Horio. Let's go back to the Burger King receipt. The receipt stated a week before the arrest. Plenty of time to prepare this package for insertion beneath the seat where clearly wouldn't be seen or smelled. Mr. Wilson drives a delivery truck for the New York Daily News. He's driving all over the city. He knows where the Burger King is. He knows it's near Louis O'Horios home. So he gets a bag. The bag was unnecessary as demonstrated to the jury in my closing argument. I took a bag of Cheerios, which looks the same texture and color as crack. Wrap it in a blue ziplock freezer bag like the original stuff was. Put it in an opaque white grocery bag. At that point you couldn't see what it was. The Burger King bags only necessary to set up Mr. O'Horio. To put it in a location near his home, a location Mr. Wilson knew about because he knew the neighborhood because he'd lived there. Yes, 10 years before, but I don't think his memory is that dim. He still has family and friends who live in that neighborhood. He admitted going to that neighborhood. That's the nature of the case against Louis O'Horio. Thank you. I see you accord appointed and appreciate the efforts that you made on the air.

Mr. Hensler, be a pleasure to hear from you. Good morning. May it please the court, my name is Suzy Hensler, and I'm appearing today on behalf of the appellant Timothy Wilson. The district court made two significant errors in this case. First, it found that an alert by a dog that signaled the presence of narcotics almost every single time he got out of law enforcement vehicle and was wrong 70% of those times. Was sufficient to establish probable cause to search the car that Mr. Wilson was riding in. And second, the court failed to grant a mistrial or a new trial in the face of baseless, persistent and prejudicial questioning that certainly could have influenced the jury's verdict. This case addresses a question which the Supreme Court did not resolve in its recent decision Florida V. Harris, and that is what happens when there is substantial evidence in the record that a dog is unreliable in the field. Here, this dog alerted 96% of the time, and he was wrong 70% of the time. When a coin toss is substantially more reliable than a positive alert by a narcotics dog, that certainly does not signal a fair probability that contraband would be found. When you say he was wrong, the judge in this case concluded first, I guess he assumed that in fact a dog is trained to alert to a scent, not necessarily the actual existence of narcotics or presence of narcotics. And the district court in this case explained why in fact those what you call incorrect or wrong numbers could have been explained by a number of different factors. What was wrong with that? Was that simply not correct on this record? That's right. The court relied on conclussary statements by the government in its argument, a close review of the field reports which were relied upon in the district court in its opinion, shows that there weren't factors in the record in those cases which suggested the presence of narcotics and most of the cases. The government referred to 20 of these 53 false reports from our perspective. And of those 20 very, very few included evidence like a direct admission by the driver of the vehicle that there had recently been drugs in the vehicle or anything that rises to that sort of behavior. The type of behavior that the Supreme Court in Harris describes in the explanatory footnote on this subject, something like I believe the Supreme Court referred to five skiers smoking marijuana in a vehicle, leaving the drugs outside of the car and five minutes later being pulled over. That is not the sort of evidence that we have in this case. In this case, we have a substantial amount of what looks like false alerts. In fact, in most of these field reports from what we believe are the false reports, there's nothing beyond the original indicators that led to the dog sniff in the first place. You don't dispute the fact that this was a well trained dog. There's evidence in the record that in fact the dog passed a certification test. Well, it did pass the certification test, but the. In fact, perform well on those tests, right? It did pass. Yes, your honor. It performed well on the certification test. However, in the field, it performed terribly as trooper orn dorf who trained as a team in his words and went through the certification process with Camo, the narcotics dog here, stated. He did perform well in the certification test, but true for orn dorf was bear witness to every day for two and a half years when they worked together, him alerting on almost every single occasion and being wrong and overwhelming a majority of the time. And the Supreme Court has said over and over and again that a well trained narcotics dog in both in Cabalis and in United States V place is one that alerts to the. That one who signals that contraband would be found in the vehicle and we don't have that here. So what percentage should we decrease the matter of law? What was your view is that the. The old test it was drugs were found in only 31% of the alerts. Well, luckily, your honor. We don't have to your honor does not have to determine what percentage here because this was not even a close call. But you can't imagine that we could take up the issue without giving some parameters. That's right, your honor. And I believe that this dog performed so poorly in the field. So so poorly is the test. What's what if put yourself in the place of someone who's trying to write this? What boundaries are you giving us a dog being performing excuse me alerting almost 100% of the time. And in almost 100% of cases, excuse me, almost 70% of cases contraband not being recovered. So that's your boundary. So that's what we say whenever we have a dog who alerts most of the time and miss alerts 70% of the time. That's not good enough. That's right. So that and that presuppose that's not a very useful. Reaction is it. And first of all, one of the problems here is that we have the data that reflects that. And also that it is. So it it is an outlier and it's retrospective. We're deciding this after the police officer. Relied on a drug sniff of a well trained dog who passed certification when courts have suggested that it is permissible to do so. This Supreme Court has repeatedly rejected per se rules for a step from making probable cause determinations. So certification alone and viewing certification alone as evidence that a dog is reliable enough to serve as an indicator of a fair probability that contraband will be recovered. In this case would be this exactly the sort of rigid application of a probable cause determination that the court was troubled by recently inherits after the after the traffic stop. Officers noted the rental car agreement which authorized Wilson as a driver. And the Oreo was the one that was driving. And Oreo. License was from a different state of where he indicated so. And then there were the shaking hands and breathing and everything which is. There wasn't just the dog sniff that contributed to the probable cause. It was that the driver of the car was driving from the rental agreement gave no authorization to in the license was. He misrepresented his his whereabouts. And Wilson was attempting to show a law enforcement badge where wasn't a law enforcement officer. I mean cameo aside. And some other. Your honor all of those other indicators do not rise to the level of probable cause and they would not be a sufficient basis to search the vehicle and camos alert added. You can't divide the conquer here. You have to take some. That's right, your honor and under the totality of the circumstances excluding the dogs positive alert. There was a not a sufficient basis to search the vehicle and the dogs and if added nothing because these officers knew if the dog was getting out of the car he was going to alert and they knew that that told them nothing about whether or not they were likely to find drugs in the car. So the basic point that Florida the Harris is making is the reason that the certification program tend to be valid. To be a greater weight in the field performance is because a huge amount of the time. The drugs will have been taken out of the car, but the distinctive odor will still remain and so dog may alert positive, but the drugs may have been removed from the automobile or the search. I mean, it may be that the drugs are just remarkably well hidden and escaped detection. So I didn't the court look upon that as a rationale. That's right, your honor. However, the court did not directly address the issue and on this record. It's not possible to say that in the other 70% of cases that the drugs had simply been too well hidden or removed from the vehicle, but your honors I would like to address my second point quickly before you get to that and I'm sorry to. You may not get to that, but Dredz Duncan pointed out the problem with trying to fashion a test in this case to address this issue of what is good enough. Why do we even need to get there if we can find just based on the good faith exception that the officers acting good faith based on our albeit unpublished case law were entitled to rely simply on the certification and the prior out of the field reliability of this canine. Why isn't that good enough? Your honors may I briefly conclude because I see my time. I may briefly. Yes. Judge Diaz in the in the four circuits case law on good faith does not apply in this case. It's really a red herring because there was no third party error. There was no third. It was our error. Well, frankly, I don't even know if we're wrong, but in fact the case law as it existed at the time these officers were operating out in the field said that it was entirely appropriate to rely solely on the dog certification and reliability outside of the field period. And the in the third party could be the certifying authority. Yeah, I probably got it wrong. No, I'm just supplementing his question. I'm not changing it. Okay. Your honor. First of all, there is there was no mandatory authority on the question of what happens when there is certification and something else and the something else here is substantial evidence that in the field the dog did not perform reliable reliably. And beyond that, the certification authority was not a distinct third party as trooper or dors testified. He what he trained with camo as a team. He's got he obtained certification with camo as a team. So there in cases like this where the police error itself is what is at issue in the fourth circuit in the fourth amendment inquiry. It's not appropriate to apply good faith. What's the error specifically what's the error relying on a dog that is that falsely alerts almost 70% of the time in the field and these officers had a had a front row street. Excuse me, front row seat to his unreliable conduct in the field and for that reason they should not have relied upon his alert in determining to search the vehicle. Thank you. Mr. Monter, Marano, please to hear from you. Thank you, Your Honor. Morning. I represent Louis, the driver of the vehicle question, not the renter, of course. And there are two issues I'd like to address to the court's attention as the court is aware we have adopted the argument made by Ms. Hansel on behalf of Mr. Wilson concerning the drug dog issue. But you have the answer to your questions the court might have about those, but I like to talk about the polygraph my client passed in September of 2010 well over a year before the trial in this matter. The polygraph was presented to the government, the CV and background information concerning the FBI polygrapher retired who had 30 years of service at the Bureau. And when the government sought a re-indipment of fully a year after my client passed the polygraph, they did not bother to inform the grand jury that my client had passed the polygraph with flying colors. And why was it required to do that? DOJ manual requires it. Well, that's just a policy, Mallory. It is absolutely true. It doesn't implicate or require the government to do anything. And if the government chooses to violate its policy and not to do so, it is then up to the court under its super advisory power to ensure that the grand jury is permitted to undertake its historic function as Brandsburg tells us. So what super advisory authority does the court have over what evidence the prosecution declines to represent the clients to present to the grand jury? I mean, if they put on purgid evidence deliberately, then we'd have a different case. I thought that was good, but it's a big debate over polygraphs and how reliable they are. No doubt. I mean, every quote sent of omission. Absolutely, Your Honor. To present this evidence of all that evidence. I mean, what authority does it, what supervisory authority over grand jury does the court possess to overturn an indictment and dismiss them indictment? Well, I think just missing indictment might have been a step too far and we can see that in our papers. What I would suggest, however, that is that Your Honor is absolutely correct. There is at least a question of how far the court can go. And I think that is an issue that we must analyze in a case by case basis. Let us look at this case. There's no objective evidence that Mr. Horrio was involved. None. There's not an admission. There's no forensic evidence. There's no prints. He acts and I'm sure Your Honor has watched the videotape. It's in the joint appendix. He acts absolutely unruffled during this, whereas Mr. Wilson looks like a poster child for ADHD. He's bouncing off the walls. He's shaking. He's nervous. He changes his story repeatedly. Mr. Horrio does nothing of the kind. Mr. Horrio's version of what happened remains absolutely consistent from the date of the arrest July 23, 2010 through the trial at the end of 2011. And it remains unchanged to this day. If there was evidence of Mr. Horrio's guilt and they chose not to put on the polygraph, that could be absolved in some way, shape or form. But when you have no evidence of guilt, except his presence, which the jury instructions used in the District of Maryland and in this circuit, clearly show is not happened. You're found in guilty under a much tougher standard than a grand jury. Well, Your Honor, it is said in this business that it takes skill to convict the guilty, but real talent to convict the innocent. And if that's true, then I'm a talented attorney. I was trial counsel. It's on me. I can't put it any differently. I don't know how the jury convicted it. Mr. Horrio, take a stand. Yes, he did. The jury just not found him. I mean, it would kind of rise. I would suppose that's part of it, but of course, the question of credibility and their ability to view that credibility, where the credibility is crucial to the jury's determination as this court has found when it is permitted the admission of polygraph evidence as in the blade case. I would submit to the court. The jury didn't get a very fair picture of who Lou a Horrio was. They were they were permitted to have questions about his willingness to take the polygraph when there was no question about that. There is a I think as well to be very honest, Mr. Horrio is an unsophisticated and not especially intelligent young man. He's not so young. He's in his 30s. He didn't make a very good witness compared to an experienced state trooper. It was part of the evidence against Mr. Horrio, Mr. Wilson's testimony. Only in the sense that Mr. Wilson denied knowledge. I tried to think of the other. My client refused to do so because he had no knowledge of it. He's to this day doesn't know how the crack got into the car. It's easy to suggest it was Mr. Wilson. It wasn't in a bag. Yes it was. I alluded to Burger King receipt. Absolute. Half a mile from your client's home in New York. That's some evidence of jury good. That's that's some evidence circumstantial. I understand your painting a picture here, but there was evidence in this case on which a jury could come to that conclusion. And a grand jury knowing my client had passed a polygraph might not have returned an indictment because the evidence was so thin. The government failed to investigate Mr. Wilson. We did that and we found that that he grew up at a home and he freely admitted this on on cross-samination by me. He grew up at a home closer to the Burger King than where my client then lived. Number one. He's actually make us efficiency of the evidence argument before us. I mean I know you made an argument on I guess you adopt a suppression. And I'm in Wilson is made a motion to sever and Wilson made a motion. To for mistrial and you made the polygraph argument and then there was a safety valve argument. But did you actually you seem to be making a sufficient to the evidence argument, but did you make that argument? I did make it because I don't believe the case law would support the sufficient to the argument. Assessions to the evidence argument when it is applied to the jury's consideration of case. What are we how do we reverse if you didn't make the argument? Because my argument is that there's a question of sufficient to the evidence to obtain the indictment. When there is a question. I don't understand how that survives to this point. And I'm a little actually baffled by what your argument gets you. First as has been pointed out the policy, the manual itself says it doesn't create any substantive rights. No question. So I don't. Even if we agreed with you what difference would it make? Because the supervisor power the court and be inserted to question the conduct of the government. When it's own policy required this number. It didn't but we've just established that the manual doesn't require it. I believe you would have to I mean you would have. It says it doesn't. So what would the court be enforcing and what does difference does it make now when we are so far past. The indictment and have a conviction by a jury who had the opportunity to observe Mr. Holy. Because the entire trial process ultimately ends up infected by the government's refusal to present this information in a case this thin to the grand jury. And the supervisor power the court is not to be used in this case to effectuate a substantive right which is not created by the DOJ manual. But to view the entire trial process and the governments what a week term misconduct in failing to disclose this. Did the grand jury get into the trial at all did you see did not. Did you see to introduce it. I did your honor. You did. I did. And we asked for that we asked for other immediately to steps short of that we asked for the entire ball of wax. But that's not to suggest the court was appropriate in saying you don't get the whole ball of wax. Monomerano will give you some of it will do something to level the playing field in Blake for example the fact that the client took a polygraph voluntarily was used to dispute his claim when he testified that he had been. And he was. We'll hear from you in a bottle. Thank you, Your Honor. May I please the court, Your Honors? I'm Josh Call for the government. I'd like to start with the canine issue. The canine in this case was found by the district court and its memorandum opinion to be reliable the court heard testimony from the canine handler. It had the presentation of numerous field and training records that relate to camo as well as his certifications that established his reliability. And it had camo's field records. The court conducted a close analysis of camo's reliability based on the records from his training based on his certification and based on his field performance. And the court found that camo was reliable and that his alerts therefore gave rise to probable cause. That conclusion is supported by the record. And although this case was decided in the district court before the Harris court issued its opinion. Judge Corals in addressing this issue essentially addressed it the exact way that the Supreme Court in Harris suggested that these types of issues. Is this he addressed he ruled before Florida the Harris that's correct. And Judge Corals was pression in his analysis as to how the Supreme Court would dictate that analysis in this types of cases should go. He did find that the certification of the dog alone established camo's reliability. Following this courts unpublished opinion in Wu. But he also went beyond that he looked at the training records. He found based on the training records that camo had established that he was extremely accurate. The court of the Harris kind of backed him up. Absolutely did your honor. The court in Harris explains that probable cause determination and Ms. Hensler is correct about this. It can't be based on a per se or a bright line test. It's a multi factor test. But Judge Corals engaged in exactly that sort of analysis here. I would note that the court in Harris wrote that in most cases a dog's field performance records have relatively limited import and that the better measure of a dog's reliability comes away from the field in a controlled testing environment. You've got this efficiency of the evidence with respect to a horrio because you know it's we don't have a sufficiency of the evidence claim before us. But the drugs were found under Wilson's seat. The council makes the argument that of the two people the one that came on glue was Mr. Wilson. He says the horrio was relatively composed. You'd make me feel a little bit better if you'd tell me why it was a just result to convict this man. Absolutely. First of all, this is a car that had been rented that morning by Mr. Wilson. Mr. Horrio had driven a different vehicle from New York City to New Jersey. Mr. Horrio lived in the Bronx in New York. He drove to Southern New Jersey to meet with Mr. Wilson. They then drive South coming through Maryland and are stopped. It's just the two of them the vehicle. Drugs are eventually found under the passenger seat under Mr. Wilson's seat as the court said. Mr. Horrio was not an authorized driver of the rental vehicle. Yet he was driving. I was there. Could they just be two friends driving from New Jersey and to Maryland? That was the defense essentially raised by each defendant which the jury rejected. And I think that decision was the proper one for several reasons. First of all, clearly drugs were found under the seat so there's. We use that. That alone is not sufficient. I agree, Your Honor, but that's obviously the fact that there are only two people in a car with drugs is a significant fact. It's not inconsistent with the scenario that they were just friends. That's correct. But in addition to that as Judge Diaz pointed out, the drugs were found in a Burger King bag. The Burger King bag had a receipt from a Burger King. That was I thought it was. It was less than a mile from a Horrio's house. Remember a horrio lives in the Bronx. That's where the Burger King receipt is from. Wilson lives in Southern New Jersey. And Mr. Monomerano at trial tried to establish some. Did the Burger King receipt cover both breakfasts or whatever? Did it cover both of their meal? The Burger King. I can't really recall what the meal was. I think it was just a single meal. The government's theory at the case here on it was that. A horrio had transported the drugs from New York to New Jersey where they met and they were traveling south where Wilson had contacts. They were going to see Wilson's family. That Burger King receipt is strong corroboration from that theory because. Wilson lived. The first leg of the trip, a horrio made by himself. That's correct. A horrio drove by himself from New York to New Jersey where he met with Mr. Wilson. Now Mr. Wilson's ties to the neighborhood that Mr. Monomerano was talking about predated this event by 10 years. He hadn't lived in that neighborhood since I believe the 90s. Wilson testified against a horrio or essentially. They both testified neither I would not characterize either of their testimonies as being against the other. Both of them simply denied knowledge whatsoever. Neither of them at any point. One had no knowledge of the other ideas. Well, there's also the possibility as Justice Stevens pointed out in his concurrence in the fero that. Neither person knew what was there and that that seems a little less likely. I don't disagree with your honor but the government called a rental car. Person who had testified a trial as to all the process he did to clean out the car. That sort of thing. What was the quantity here? The quantity was I believe 300 little over 300 grams of crack cocaine. There was a distribution amount barely. Yes. And going back to the evidence against Mr. Ahorrio honor. Mr. Ahorrio's hands were shaky. The officer observed. He said they were more shaky than the typical person. In addition, Mr. Ahorrio stepped out of the vehicle during this encounter. At one point, the officer said to him, so does everything in the car belong to you? And he says no. And the officer sort of reacted. He was surprised by that response. He said, does it belong to you? He said no, don't. That's exactly right, Your Honor. And then he was asked if he would give consent to search. And he said you have to ask him referring to Wilson. He wouldn't. Now. Wilson was the renter to be sure. But those are not the types of responses that are consistent with innocence. He then was questioned by the officers later on. And he denied. Helpability. But the officers explained that he often gave vague responses. At some points, he would put his head on the table when he was asked questions. This was not the type of encounter that. This is not the type of case where the jury had. The jury's decision to convict the defendant was not amply supported by the evidence. There were numerous reasons for the jury to conclude. Particularly given the Burger King receipt. Let me ask you a few more questions about Camo and this district judge's analysis. I agree that he. Attempted to. Explain why. The reported to be unreliability in the field might have been attributed to something else. He went through the direct and indirect evidence of. Of why. In fact, drugs could have been in the car or cars at the time when they were not physically. They found that even though the dog had alerted some of that seemed to me to be pretty skimpy to be. But the other problem I had. I think I recall this correctly is that. It appeared that the trainer in this case would only reward Camo when he alerted positively. Which is troubling me. Can you. Help us out. Absolutely. Let me address the second point. First, your honor. That there was testimony in the record that the calling, which is the device that's given to the dog. Was only given when there's a positive alert. I. I. Assume that that's the case with all narcotics canines that perhaps that's wrong. I mean, that much. Well, it's not a record, but my understanding is that that's not the way it's supposed to be. Okay. Your honor is probably correct. But I do know that you are correct. He was rewarded only when he alerted positively. But I would I would direct the honor to his. Exercise is his training exercises in which. I think that there he as the officer testified he was. They gave him I think what he called blind, which were alerts are food and things like that. To try to sort of test the dog to see if it would falsely alert. And in the training exercises that he did. Which the trooper testified there were over a hundred of those. Only one time did he falsely alert. So in cases where. Where officers knew that there might be a reason to falsely alert here. Essentially almost never did. He also never missed. An alert. Now going back to the point about the strength of those other cases. It's undisputed that in 24 of the cases that were drugs found. And I would direct the courts attention to join appendix. And could I just ask. How bad would a dog have to be. To fall outside. The purview of of house. The touchstone your honor is is reliability. And I. Reliable and but and you're saying that as long as the dog. Is reliable in field test is certified in this reliable and field test. The fact that his reliability in the field is worse than a coin toss. Is not to be taken into consideration. Surely that can't be because even in Harris. As I recall the court. Indicated that. Controlled environment data. Could be relevant. Our position isn't that that that data in the field is irrelevant your honor. But that the significance of it in the overall inquiry is much less significant than the training and certification records, which the court. The court held in in Harris. Because in the controlled environment. There actually is a precise measure as to the accuracy of the dog. Whereas in the field. There's no way to know whether the dog is. Alerting mistakenly or it's alerting to the lingering odor of drugs. And I would say in this case. There's a very strong there's very strong evidence I think that the dog was alerting in many of these cases. To the lingering odor of drugs even where drugs. In a motions filing before the district court. The government described these in some detail. This is at pages 114 and 115 of the joint appendix. There are two lengthy footnotes in which the government goes through the 20 cases in which. There was direct evidence that somebody either had recently used drugs in the car. Or at least quite possibly had. And then it also goes through many of the 33 cases in which. There was significant evidence to think that there may have been. I'll just read a few examples. These are cases where drugs were not found. The driver admitted that he and his girlfriend smoke marijuana in the vehicle. That was one case where drugs were not found. The driver stated that her cousin owns the vehicle and may have had CDS in it earlier that day. The driver stated that he may have had someone in the truck that had drugs on him or her earlier in the day. And so forth. Those are some of the 20 examples in which there's sort of direct evidence that drugs either were or may have been in the car. You're on this is joint appendix at 114 and 115 in the footnotes. The government. Puts all these together. And then the records that actually support that. Are an attachment to that filing. Which is also in the record. That's a pages. 151 to 233. So the court can. Cross reference the actual reports from the field to the government's filings. And likewise with respect to the 33 cases. Here's some examples. From the reports the driver was nervous stated that he had just gotten out of prison for drug distribution and told the story that didn't make sense. Another example driver was nervous. Friends shaking car had numerous air fresheners and driver was wanted in Y Comico County. Another situation. So the point is in. Even though. Camo in those cases. According to the defendants. Fulsely alerted. There's there's ample reason to think that. His training records. And there's. A much. Closer reflection of his. His actual skill. And more closely reflect reflect his accuracy. I also know that the training records here are not just good, but they're outstanding. He had one miss essentially. In his training. So there's. There's ample reason here to think that that camera was reliable. With respect. Briefly to the polygraph issue. I don't think so, Your Honor. And actually if the court doesn't have any questions with respect to the other issues. I just asked that the court. Affirm the convictions in this case. Thank you. Thank you. Your honors. I would like to briefly address the second. Issue raised in my brief, which was the court's era not granting either a mistrial or a new trial. After. Council for. Luea, or you raised a prejudicial line of questioning seven times. So in Judge Quarles words. He referred to Mr Wilson's drug dealing relatives, which Judge Quarles ruled had absolutely no relevance to the case. On seven separate occasions after being cautioned three times. And so again, this wasn't a case where there was an isolated comment and isolated reference to drugs. This was a case where co counts were co-defendants counsel returned repeatedly over the multi-day trial to a prejudicial line of questioning. Judge Paul gave repeated instructions. That's right, Your Honor. The first time this issue came up there was a three-page bench conference. He struck the question. He instructed the jury to ignore it. And the very next question was on the same subject. And it mattered in this case because as Judge Diaz pointed out, the only smoking gun evidence in this case was a Burger King receipt that pointed directly at Mr. Ahorio. That's right, Your Honor. However, there was testimony in Mr Wilson's defense by an investigator from the Federal Public Defender's office that this make and model of the car. In this make and model of the car, a person in the passenger seat could not see what was stashed underneath the passenger seat unless they put their head flush against the floor of the car. And the trooper, trooper Ornjurff also testified that he couldn't smell the drugs until his face was on the floor of the car. So there was substantial evidence that somebody in the passenger seat could not see or smell the drugs underneath the seat. And again, this smoking gun evidence pointed straight at Mr. Ahorio. So again, because the court could not cure this taint and because co-defendants counsel returned to this well again and again. And these questions related to the exact same type of conduct at issue here, drug distribution at around the same time, five weeks before the search. Mr. Chair, the co-counsel brought these things up. They didn't come up in the form of testimony. They came up in the form of questions. Well, there were certain answers to certain questions. And even at one point there was an objection and Judge Quarles overruled it on the basis that co-defendants counsel promised to tie this all up in the end. He promised to show in closing in his through its clients testimony that this drug dealing relatives defense. Doesn't make a difference from something that's a reference like this is introduced by co-defendants counsel and when it's introduced by the government. No, Your Honor. The effect is the same. It deprives my client of a fair trial. But on the other hand, the sort of defendant is scratching and flooring on the hand of his client. And he's got to fulfill his obligations under the adversary system as well. And the judge did what he should have. And he wouldn't really come continually made references to the fact that you don't consider somebody but by virtue of their relatives. You have to judge his behavior on it. I mean, he just alluded to this once. He hammered it. Well, again, Your Honor, well, certainly Mr. O'Horios counsel had certain duty of zealous advocacy to his client as Judge Quarles himself noted. If the defense was going to be Mr. Wilson's drug dealing relatives, then he had an obligation to cut Mr. Wilson loose. Because those sorts of defenses certainly in the way that it was presented without any basis, without any basis in evidence that was offered in the trial is not consistent with Mr. Wilson's constitutional right to a fair trial. And for that reason, I ask that Your Honor's bake it his conviction. Thank you. Thank you so much. Mr. Montgomery. I post a question. Is everything on the bench yours? Because if you deny that it is and I know it's not, I saw Your Honor's walk into the courtroom carrying each your pile of documents relating to the case today. Would you be attempting? What are you asking me? Is everything on the bench yours? Because if Your Honor says no, it's not. I saw each of you bringing documents for today's arguments. And if you deny that everything on the bench yours, is it only because it's true? Where are you going with this? Mr. Call referred to Mr. O'Horios denial of everything being in the car as being his. If you watch the videotape, he attempted to explain no just the black jim bag, this mine. Trooper, a corporal canard, cuts him off. That's the nature of the evidence in this case. Let's take something that happens and put the most incredible amount of spin on it so I was to implicate Louis O'Horio. Let's go back to the Burger King receipt. The receipt stated a week before the arrest. Plenty of time to prepare this package for insertion beneath the seat where clearly wouldn't be seen or smelled. Mr. Wilson drives a delivery truck for the New York Daily News. He's driving all over the city. He knows where the Burger King is. He knows it's near Louis O'Horios home. So he gets a bag. The bag was unnecessary as demonstrated to the jury in my closing argument. I took a bag of Cheerios, which looks the same texture and color as crack. Wrap it in a blue ziplock freezer bag like the original stuff was. Put it in an opaque white grocery bag. At that point you couldn't see what it was. The Burger King bags only necessary to set up Mr. O'Horio. To put it in a location near his home, a location Mr. Wilson knew about because he knew the neighborhood because he'd lived there. Yes, 10 years before, but I don't think his memory is that dim. He still has family and friends who live in that neighborhood. He admitted going to that neighborhood. That's the nature of the case against Louis O'Horio. Thank you. I see you accord appointed and appreciate the efforts that you made on the air