Brenda Kathurima

1214 N Charles St. #308

Baltimore, MD 21201
(240)743-6298
bkathurima@gmail.com
Writing Sample
The following writing sample is an excerpt from an appellate brief submitted for a
Written and Oral Advocacy assignment during the Spring 2014 semester. This was an open
research assignment

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
__________________________________________
No. 12-3456
__________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TYLER GRAY,
Defendant-Appellee.
__________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(BRENDAN COSTIGAN, DISTRICT JUDGE)
__________________________________________
BRIEF OF APPELLANT
__________________________________________

Brenda Kathurima
Assistant United States Attorney
District of Maryland
500 W Baltimore St.
Baltimore, MD 21201
Attorney for Appellant

April 4, 2014

SUMMARY OF THE ARGUMENT

The district courts order should be reversed because the trooper articulated
factors sufficient to find reasonable suspicion, in addition to the criminal record,
that criminal activity was afoot. The Fourth Amendment and this Court have
established that a trooper can use his own experience in assessing reasonable
suspicion. Based on the troopers experience, the criminal record in conjunction
with Grays nervousness, delayed stopping, and possibility of criminal activity in
the area, provided a sufficient finding of reasonable suspicion. The trooper acted
accordingly in extending the stop and requesting a canine search.
Additionally, the district court erred in relying on unpersuasive expert
testimony in challenging the canines reliability and alert. Grays expert, lacked
familiarity with the actual training processes of the Maryland K-9 unit and Fidos
and Trooper Ficks behavior during searches. Although, Fido did not alert in
accordance with his training, the alert in combination with the events leading up to
the alert provided the fair probability that drugs would be found. Thus a finding of
probable cause was warranted.
Based on the aforementioned reasons, the district courts judgment should be
reversed.

ARGUMENT
II.

THE DISTRICT COURT ALSO ERRED IN STATING THAT THE

FACTS SURROUNDING THE DRUG DETECTION CANINE
WERE INSUFFICIENT TO SUPPORT PROBABLE CAUSE TO
ALLOW THE SEARCH OF THE VAN.
A.

Standard of Review

The district court's findings regarding a dog's training and reliability are
factual in nature and should be reviewed for clear error. United States v. Diaz, 25
F.3d 392, 394 (6th Cir. 1994).
B.

The drug detection canine was reliable.

Probable cause to search a vehicle exists where there are known facts and
circumstances that are sufficient to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime will be found. Ornelas, 517 U.S. at 696.
Probable cause deals with probabilities because it is a fluid concept that cannot be
easily or usefully reduced to rigid legal rules. Illinois v. Gates, 462 U.S. 213, 231
(1983). The Supreme Court has rejected rigid rules and bright line tests in evaluating
whether the probability standard has been met and has consistently looked to the
totality of the circumstances. Id. at 230.
In the context of canine sniffs, the alert of a dog certified by a bona fide
organization that tests reliability in a controlled setting supports a finding of
probable cause. Florida v. Harris, 133 S. Ct. 1050, 1057 (2013). Even in the absence

of formal certification, probable cause will be found if the dog has recently and
successfully completed a training program that evaluated his proficiency in detecting
drugs. Id.
In Harris, the canines (Aldo) reliability was challenged because the handler
did not keep records detailing the alerts on the field. 133 S. Ct. at 1057. The court
held that it is best practice to analyze reliability using the results from the
controlled testing environments of the training and certification process. Id.
Fido completed 80 hours of training to detect the odors of narcotics by the
Maryland State Police. See J.A. at 44. Trooper Fick is a certified handler and
completed training and certification together with Fido. Id. During the first year of
drug detection certification, Fido had a success rate of 96%. His reliability is
confirmed with a false alert of 10%. To keep their skills sharp, Fick and Fido spend
eight hours a month in retraining sessions, using the same methods as the training
process. Fido performs the successfully in these conditions.
Gray contends that Fidos alleged poor performance in the field, a false alert
rate of 80%, dwindles his successful training results. Harris warns against treating
field records as a gold standard of reliability. 133 S. Ct. at 1057. The Supreme
Court stated:
If a dog on patrol fails to alert to a car containing drugs, the mistake usually
will go undetected because the officer will not initiate a search. Field data
thus may not capture a dog's false negatives. Conversely [], if the dog
alerts to a car in which the officer finds no narcotics, [] the dog may have

detected substances that were too well hidden or present in quantities too
small for the officer to locate. Or the dog may have smelled the residual odor
of drugs previously in the vehicle or on the driver's person.
Id. at 1056-7. Trooper Fick testified that the 80% false alert rate is overstated. In
the past year, the 8 out ten times Fido alerted but drugs were not found were not
false alerts. J.A. at 29. This is because there was evidence that the cars or
passengers had recently been in contact with drugs. Id. Therefore, Fidos alerts
were in response to the residual odor.
C.

The testimony from Grays expert on drug detection canines did

not deteriorate the dogs reliability and sufficiency of the alert.

The district court erred in relying on the unpersuasive testimony of Harriet

Coster. A dogs alert is presumed to provide probable cause if he has been certified
by bona fide organization that tested his reliability. Harris, 133 S.Ct. at 1057.
Reliability can be disputed by challenging the adequacy of a certification or
training program. Id. An alert can be contested by a showing that the handler cued
the dog. Id. In challenging reliability, field performance may sometimes be
relevant. Id.
In Diaz, expert testimony from a former police officer who trained canines
did not adequately dispute a dogs reliability. 25 F.3d at 395. According to his
understanding of the dogs training, the expert alleged that reliability was
compromised because the dog was not trained using dead targets. Id. He believed
that the dogs alert was tainted because the handler knew which car was suspected

resulting in unconscious cuing. Id. The court deemed the experts objections
unpersuasive. The expert had never witnessed the dog in action, spoke with the
trainer or handler, or visited the training facility. Id. The court noted that the
limited information upon which his opinion [was] based most assuredly detract[ed]
from his testimony. Id.
Here, Costers testimony is based on limited information deeming it
unpersuasive like Diaz. During the suppression hearing, Coster criticized Maryland
State Police K-9 unit for: (1) certifying its own canines, (2) the duration of the
certification, (3) training without dead targets, and (4) rewarding the dog after
alerts. Like Diaz, Coster lacked enough information to adequately support her
inferences. She lacks the specific details of Fidos training for she has not spoken
with his trainer or visited the facility. Her inference are based on her own
understanding of Fidos training. Coster suggests that her criticism is informed by
best practices. But later in her testimony she admits that the canine certification
industry lacks a single, unified standard resulting in different organizations
following different standards and guidelines. Without a uniform standard of best
practices, it is hard to tell which training method is superior to another.
Coster inferred that Fidos field results and false positives indicated the
possibility of handler cuing. Without watching Fido and Fick during a vehicle
sniff, Coster willingly admits her flawed conclusion by stating, I cannot be sure of

that [] without observing the video recordings of these various car stops. J.A. at
36-37. Trooper Fick testified that Fido was allowed to roam freely around Grays
van without any direction from Fick.
In the totality of the circumstances, the events leading up to Fidos
alert gave sufficient indicia that there was a probability that
narcotics would be found.
Grays contention that Fido did not genuinely alert to the presence of narcotics
D.

is not supported by the record. The Supreme Court avoids rigid rules, bright-line
tests, and mechanic inquiries in assessing probable cause. Harris, 133 S. Ct. at 1055.
The relevant question is "whether all the facts surrounding a dog's alert, viewed
through the lens of common sense, would make a reasonably prudent person think
that a search would reveal contraband or evidence of a crime." Id. at 1058. Under
the totality of the circumstances, there must be a fair probability that drugs or
evidence of drugs will be found and some indicia of reliability for that alert. Gates,
462 U.S. at 235; Harris, 133 S. Ct. at 1057.
In United States v. Munoz-Nava, the Tenth Circuit considered the totality of
the circumstances in establishing probable cause when a dogs conduct did not
amount to an alert. 524 F.3d 1137, 1145 (10th Cir. 2008). The dog was attempting
to sniff the defendants boots which were suspected for hiding narcotics inside the
soles. The dog's behavior demonstrated that it smelled narcotics near the boots but
it could not locate the source. The court concluded that the circumstances could
lead a reasonable person to believe that the boots contained illegal drugs. The

absence of a full alert did not negate probable cause when other circumstances
supported it. Id. at 1146.
In this case, the events leading up to Fidos alert support probable cause.
Trooper Fick testified that, Fido will indicate by licking is lips and sometimes
pawing at the area. When Fido is certain that narcotics he is trained to detect are in
a particular location, he will alert by sitting down. J.A. at 19. During the search
of Grays van, Fido scratched and pawed at the right rear fender. His behavior was
an indication that he detected the odor of narcotics. A final alert would have
expressed that Fido was certain. But probable cause requires a fair probability, not
certainty. It was part of Fidos trained response to paw. The indication was enough
to give Trooper Fick a reasonable belief that a search of the van would reveal
drugs.

CONCLUSION
For the aforementioned reasons, the Government requests that this court vacate the
district courts order. Respectfully submitted on this 4th day of April, 2014.

Brenda K. Kathurima
Brenda Kathurima
United States Assistant Attorney
District of Maryland
500 W. Baltimore St
Baltimore, MD 21201
Attorney for Appellant United
States

April 4, 2014