FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 20, 2017
In the Court of Appeals of Georgia
A17A0172. HARRIS v. THE STATE.
BARNES, Presiding Judge.
Bruce Ervin Harris was indicted for trafficking marijuana and possession of
marijuana with intent to distribute at Atlanta Hartsfield Jackson International Airport. The
trial court granted the State’s motion to quash Harris’s subpoena for all records and
documents pertaining to the canine and its handler involved in the detection of drugs in
Harris’s luggage. The trial court certified its order for immediate review, and this Court
granted Harris’ application for an interlocutory appeal of the trial court’s order. This
appeal ensued.
We review the grant of a motion to quash a subpoena under the abuse of discretion
standard of review. Bazemore v. State, 244 Ga. App. 460, 463-464 (2) (535 SE2d 830)
(2000). So viewed, the record reveals that Homeland Security Investigations officers
received a tip about the flight Harris was on originating from San Francisco. When he
arrived at Hartsfield-Jackson International Airport, the luggage from Harris’s flight was
removed by agents and lined up in two rows. A special agent and his trained canine,
“PacMan,” walked along the rows of luggage and PacMan alerted at Harris’ bag.
Afterward, all of the bags were taken to baggage claims, and when Harris claimed his
bags, agents made contact with him. During an ensuing interview, Harris consented to a
search of his bags. Officers recovered approximately 40 pounds of marijuana from Harris’
bag.
Harris was indicted and charged with trafficking marijuana and possession with
intent to distribute marijuana on October 14, 2015. He filed a preliminary motion to
suppress on December 4, 2015, and a particularized amended motion to suppress on
December 10, 2015, which he later amended and filed on December 29, 2015. The
motions were all filed under the 2015 indictment number.
On January 6, 2016, the State re-indicted the case, and on January 20, 2016, Harris
filed a motion to suppress, again under the 2015 indictment number, in which he argued,
among other things, that the drug dog was unreliable.1 On February 2, 2016, Harris filed
1
The record does not include any filings made under the previous indictment.
Much of the procedural posture was detailed at the March 24, 2016 hearing on the State’s
motion to quash.
2
a witness subpoena seeking certain information about the canine and the handler.2 On
February 15, 2016, the State filed a motion to quash the subpoena on the grounds that it
was unreasonable and oppressive, in violation of OCGA § 24-13-23, and that the material
sought was not relevant, as defined in OCGA § 24-4-401.
On February 25, 2016, a hearing was held on the motion to quash, but it was
continued to a later date to allow Harris to re-file his motion to suppress after the trial
court noted that the only pending motion to suppress had been filed under the 2015
indictment number. The parties agreed that Harris would be permitted to file a motion to
suppress identical in “form and substance” to the motion to suppress “inadvertently” filed
under the 2015 indictment number. On February 26, 2016, Harris re-filed his motion to
suppress under the 2016 indictment number. In addition to asserting the lack of probable
cause for the seizure of his bags, lack of consent, and that the warrantless seizure of the
2
The subpoena in its entirety requested:
1. All rules, regulations, policies, etc. in your possession, custody or
control relating to the use of drug/narcotic/explosive detection canines; 2.
All rules, regulations, policies, etc. in your possession, custody or control
relating to the use of drug/narcotic/explosive detection canines and
handlers; 3. All records and documents relating to drug/narcotic/explosive
detection canine handler S/A Brian Hoopingarner; and 4. All records and
documents relating to drug/narcotic/explosive detection canine “PacMan.”
3
bag was an illegal search and seizure, Harris also maintained that “the particular dog used
was unreliable.”
On March 24, 2016, the trial court held a hearing on the State’s motion to quash,
at which the State argued, among other things, that per Florida v. Harris, 568 US 237
(133 SCt 1050, 185 LE2d 61) (2013) and other legal authority, documents related to the
dog’s training are not relevant if a dog is certified on the day in question, and that the
subpoena was overly broad and burdensome.3 The State had previously provided Harris
with five documents – the handler’s training completion certificate, PacMan’s training
completion certificate, a certificate from the National Narcotic Detector Dog Association
(“NNDDA”) certifying that PacMan and the handler had completed NNDDA
certification, and the cover of the NNDDA certification book showing the certification
numbers. It argued that this documentation met the Florida v. Harris criteria for
establishing the dog’s reliability, and that reliability “goes to the alert and whether that
provides probable cause. . . . Reliability does not go to the training.” The State further
asserted that Harris challenged the dog’s reliability, not its training, in his motion to
3
At the hearing, Harris withdrew the first two requests listed in his subpoena, and
the only remaining items sought under the subpoena were the records and documents
relating to PacMan’s handler, the handler, and the records and documents relating to
PacMan.
4
suppress, that it had provided all relevant materials establishing reliability through the
certification documents, and “[a]nything else isn’t [relevant to whether the dog was]
reliable.”
Harris agreed with the State that under Florida v. Harris there is a presumption that
“evidence of certification if unchallenged is enough.” but that the case further establishes
that the presumption is rebuttable. He asserted that he should be permitted to challenge
the dog’s reliability not only cross-examination, but also “based on the underlying records
of the dog and the handler. That’s the basis for the subpoena.” Harris maintained that “as
used in a context of a motion to suppress or a suppression hearing the subpoena would
be used to challenge the reliability of the dog and the dog handler.”
At the conclusion of the hearing, the trial court orally ruled as follows:
After hearing the argument of the parties and examining the subpoena
sought by [Harris], first of all, looking at the motion to suppress and what
is sought in the motion to suppress, the Court grants the motion to quash by
the State, finding that the items that are sought by the subpoena duces
tecum are not relevant. Also, that the requests are over broad, they are
unreasonably burdensome and oppressive.”
Subsequently, the trial court entered a written order granting the State’s motion to quash.
Following our review, we vacate the trial court’s grant of the State’s motion to
quash and remand for further proceedings consistent with this opinion.
5
When a motion to quash a subpoena is filed, the party serving the
subpoena has the initial burden of showing the documents sought are
relevant. Where the evidence sought in a subpoena duces tecum is
demonstrably relevant and material to the defense, it is error for a trial court
to quash the subpoena.
(Citations and punctuation omitted.) Gregg v. State, 331 Ga. App. 833, 835 (771 SE2d
486) (2015) (physical precedent only).
The material requested in Harris’ subpoena were “[a]ll records and documents
relating to drug/narcotic/explosive detection canine handler . . . and . . . [a]ll records and
documents relating to drug/narcotic/explosive detection canine “PacMan.” He contends
that the materials had demonstrative material relevance to an ultimate issue of his defense
as presented in his motion to suppress, to wit: PacMan’s reliability.4 Harris further
contends that per Florida v. Harris, he has a vested right to challenge the State’s
certification evidence of PacMan’s’s reliability because the reliability of the dog’s alert
is a “fact of consequence” to his motion to suppress and, moreover, that he is entitled to
cross-examine the handler with the subpoenaed training documents that might either
support or contradict the handler’s opinion that PacMan’s alert was reliable. Thus, he
4
OCGA § 24-4-401 (“‘relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence”).
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argues, because he has met the burden of establishing that the documents are relevant and
material to his defense or fall within his broad right to a thorough and sifting cross-
examination, the trial court erred in granting the motion to quash. See Gregg, 331 Ga.
App. at 835.
According to the State, PacMan was certified through the NNDDA for the
detection of marijuana and other narcotics and drugs, and because Pacman’s certifications
were current on the day of the incident, in accordance with United States v. Villa, 348
Fed. Appx. 376 (10th Cir. 2009) and U. S. v. Gonzalez-Acosta, 989 F.2d 384, 388-389
(1993), there was a presumption of reliability. Thus, the State argues, the documents in
the subpoena, which were related to the dog’s training, are not relevant to show that the
dog was reliable.
In Florida v. Harris, the Supreme Court reversed the grant of a defendant’s
motion to suppress on the grounds that Florida’s requirement that the State present an
exhaustive set of records to establish a dog’s reliability was “inconsistent with the
flexible, common-sense standard of probable cause.”133 SCt. at 1053. There, the
defendant did not challenge the dog’s training, arguing instead that the dog’s certification
had expired and that he had falsely alerted twice to defendant’s truck even though no
drugs were found therein. The Court explained that
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evidence of a dog’s satisfactory performance in a certification or training
program can itself provide sufficient reason to trust his alert. If a bona fide
organization has certified a dog after testing his reliability in a controlled
setting, a court can presume (subject to any conflicting evidence offered)
that the dog’s alert provides probable cause to search. The same is true,
even in the absence of formal certification, if the dog has recently and
successfully completed a training program that evaluated his proficiency in
locating drugs.
(Emphasis supplied.) Florida v. Harris, 133 SCt at 1057 (II). But, the Court also pointed
out that
[a] defendant must have an opportunity to challenge such evidence of a
dog’s reliability, whether by cross-examining the testifying officer or by
introducing his own fact or expert witnesses. The defendant, for example,
may contest the adequacy of a certification or training program, perhaps
asserting that its standards are too lax or its methods faulty. So too, the
defendant may examine how the dog (or handler) performed in the
assessments made in those settings.
Id.
In McKinney v. State, 326 Ga. App. 753 (755 SE2d 315) (2014), this Court relied
upon the Florida v. Harris standard for reviewing probable cause based upon an alert.
Quoting from that case, we held that
[t]he court should allow the parties to make their best case, consistent with
the usual rules of criminal procedure. And the court should then evaluate
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the proffered evidence to decide what all the circumstances demonstrate. If
the State has produced proof from controlled settings that a dog performs
reliably in detecting drugs, and the defendant has not contested that
showing, then the court should find probable cause. If, in contrast, the
defendant has challenged the State’s case (by disputing the reliability of the
dog overall or of a particular alert), then the court should weigh the
competing evidence.
Id. at 755 (1). And, in Gregg, which was decided after McKinney, this Court explained
that a defendant who elects to have the reciprocal discovery statutes apply may
nonetheless utilize subpoena power to obtain relevant documents. Gregg, 331 Ga. App.
at 835. “Where the evidence sought in a subpoena duces tecum is demonstrably relevant
and material to the defense, it is error for a trial court to quash the subpoena.” Id.
In the present case, at the hearing on the motion to quash, the trial court orally
found that the items sought in the subpoena were not relevant to “what is sought in the
motion to suppress,” and also that the requests are overly broad, unreasonably
burdensome and oppressive. Although the subsequent written order did not provide a
rationale for granting the motion to quash, the trial court apparently accepted the State’s
contention that the certification documents alone created an unrebuttable presumption of
reliability, and that materials related to training were not relevant to demonstrate
reliability.
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While, as explained by this Court in McGivney, within the context of establishing
probable cause, certification can be sufficient to show that the dog’s alert is reliable, this
presumption is established when the reliability is uncontested. McGivney, 326 Ga. App.
at 755 (1). But if the defendant contests the reliability of the alert then “the court should
weigh the competing evidence.”Id. To do so, the defendant should be permitted to utilize
subpoena power to obtain relevant materials. Gregg, 331 Ga. App. at 835. Thus, for the
trial court to weigh competing evidence, the defendant must have access to it. The cases
do not hold, as the State asserts, that Harris is precluded from challenging the reliability
of the alert with materials related to training because reliability was presumptively
established by demonstrating certification on the day of the alert.
Having determined that certification on the day of the alert does not preclude a
challenge to the reliability, this Court cannot determine from the existing record whether
the training materials were relevant to the issue of reliability. The subpoena requested all
of the “records and documents relating to” the handler and PacMan. At the hearing on the
motion to quash, the State simply argued that the materials were irrelevant because
training materials were not related to reliability, and reliability was established per se by
the certification. Other than the blanket assertion that training materials are irrelevant to
demonstrate reliability based on its interpretation of Harris and its progeny, the State
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offered no other basis for its objection. Moreover, even if the subpoena was overly broad,
a trial court has discretion to modify it. See OCGA § 24-13-23; Bazemore v. State, 244
Ga. App. 460, 464 (2) (535 SE2d 830) (2000) (in response to a motion to quash, a trial
court may modify a subpoena.)
Accordingly, because it is unclear whether Harris met his burden of establishing
that the subpoenaed materials were relevant to challenge the reliability of the alert, and,
if so, whether the State then met its burden of demonstrating that the subpoena was overly
broad and unreasonably burdensome, we vacate the trial court’s judgment and remand
this case to the trial court for further proceedings consistent with this opinion.
Judgment vacated, and case remanded. McMillian and Mercier, JJ., concur.
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