Sixth Circuit Joins Seventh, Finding Daubert Gatekeeping Inapplicable At Suppression Hearing

In a suppression hearing regarding a dog-alert drug case, exclusion of defense dog training expert was erroneous because the trial judge incorrectly believed he lacked discretion to conduct Daubert gatekeeping of the testimony on whether the police dog properly alerted on defendant's vehicle; joining Seventh Circuit in United States v. Ozuna, 561 F.3d 728 (7th Cir. April 6, 2009) in finding that district court was not required to conduct any Daubert inquiry for purposes of a suppression hearing, but noting that a court was not precluded from conducting a Daubert-like hearing if, in its discretion, it would aid the court's assessment of the suppression case, in United States v. Stepp, 680 F.3d 651 (6th Cir. May 17, 2012) (No. 11-5004)

"We have not yet expressed a position on whether Rule 702 or Daubert play any role in suppression hearings," noted the Sixth Circuit in considering a dog-alert drug suppression case. If not Daubert "what standards should [a court] use in determining whether a party should be permitted to present expert testimony" in a suppression hearing? These were two questions considered by the Sixth Circuit over a month ago. The circuit conducted a careful review of the role of Daubert gatekeeping as a prelude to accepting or rejecting expert testimony in a suppression hearing. The Sixth Circuit noted that the Seventh Circuit approach was "informative" to answering these questions.

In the case, after defendants were detained during a routine traffic stop regarding a the license-plate "mismatch" of defendants vehicle with official records, officers concluded that the defendants' explanations were so inconsistent and other factors so suspicious that they would "conduct a drug sniff of the vehicle." The drug dog alerted to the presence of drugs and officers found two kilograms of cocaine hidden in the car. Pre-trial, the defendants' sought to suppress the evidence gathered during the traffic stop. Defense counsel offered to present alleged expert testimony of an expert, "based on the behavior of the dog handler immediately prior to the alert" that the dog was "given a signal" by the officer conducting the alert. The court denied admission of the evidence, but allowed the defense to make an offer of proof of what the witness's supposed expert qualifications and testimony would be. The defendant then entered into a conditional-plea agreement, "changing his plea to guilty but reserving" his appeal of the suppression ruling.

The Sixth Circuit "agree[d]" with the approach of the Seventh Circuit in United States v. Ozuna, 561 F.3d 728 (7th Cir. April 6, 2009) explaining that:

In Ozuna, the Seventh Circuit declined to impose on district courts an additional requirement of conducting a Daubert analysis before considering expert testimony at evidentiary hearings. Noting that the Rules of Evidence were generally inapplicable at such hearings, the court held that nothing in Daubert’s stated rationale would be furthered by requiring a judge to apply Daubert before hearing expert testimony at a suppression hearing. The district court did not err in hearing the purported expert testimony [on handwriting], weighing its reliability, and then choosing to credit parts of it but not all. We agree with this approach. Even at a suppression hearing, the district court must always consider any proffered expert’s qualifications and determine, in its discretion, what weight to afford that expert’s testimony.
Stepp, 680 F.3d at 669 (quoting United States v. Ozuna, 561 F.3d 728 (7th Cir. April 6, 2009) and citing United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994)). See Daubert Expert Requirements Need Not Be Met For A Suppression Hearing.

In light of the Seventh Circuit's position in Ozuna, there was one twist applied by the Sixth Circuit for defendant Stepp. In examining the record, the court found that the trial judge erred not because it excluded the proffered defense expert testimony - and not because it concluded the proffered expert was not qualified to give expert testimony. Rather, the suppression hearing record disclosed that the trial judge "improperly held itself to an erroneous standard when deciding [if] it could hear his testimony in the first place." Stepp, 680 F.3d at 669 (citations omitted)).

But this error was harmless. The circuit opined that:

The record here sufficiently establishes that even had the district court permitted [defense dog expert] Jones to testify, Jones’s opinion would not have constituted the “competent and credible evidence” on which we expect district courts to rely. Jones was questioned at length about his background, demonstrating that he lacked the necessary qualifications to offer even minimally credible or reliable testimony on the subject of dogs sniffing for narcotics. Jones admitted to having trained only two or three drug dogs in the course of a fifty-year career, the last of which was ten years before the hearing. He was not, nor had he ever been, a police-dog handler. He had no certification on narcotics-dog training. Furthermore, any prejudice in erroneously preventing him from testifying was minimized by the fact that his ultimate conclusions and an abbreviated explanation were offered..."
in the defendant's offer of proof. Stepp, 680 F.3d at 670 (citations omitted)).

The Sixth Circuit noted that the government presented as its expert the officer who was "[t]he dog['s] handler, [who] ... had already credibly testified at length regarding the training of the dog involved in this case and how the dog had alerted (sitting down near the driver’s door)." This expert testimony by the government led the circuit to believe that had the trial judge "applied the correct standard, we believe that the district court in its discretion would have permissibly taken the same actions of rejecting the content of Jones’s proffered testimony in favor of the highly credible evidence offered by the government’s expert in this area. Nor do we believe, had Jones testified in accordance with the proffer, that the district court’s holding that probable cause was established would have changed when weighed against the testimony of [dog-handler] Officer Young." Stepp, 680 F.3d at 670 (citing United States v. Diaz, 25 F.3d 392, 395 (6th Cir. 1994)).


Federal Rules of Evidence