right our fourth case for this morning is united states against larry may please the court my name is bill greenlee and i represent the defendant appellant larry bentley larry bentley appeals from the denial of his motion to suppress evidence on two bases one that the canine unit whose alert of the evidence i would like to begin this morning by addressing the question of the drug detection canine unit so why is it that the district where it was mistaken to think that the dog met the minimum criteria for allowing that evidence to come in with the field accuracy rate of little below sixty percent and all the rest of his goods was really things under harris items to go to the weight i think the reason they had it i don't think that we can just focus solely on the percentage and say this number is enough because sixty percent would mean circumstances consideration it's not just the training it's not just the field you look at everything that's available to you and in our case here with mr bentley we had a wealth of information about this dog that we were able to put forward and i think that one of the things that is important not to get away from i think the most important thing is that in ca bias the supreme court said you define the well trained dog by the fact that that dog will not be exposed to search i don't that should remain private and here in with this dog he when confronted with a situation where the vehicles contain no evidence of drugs whatsoever that can be found even after a full search and interrogation of the people who are in the car and the officers willingness to really try to corroborate this dog we have lots of evidence of that even in that in those circumstances where there is no evidence over eighty percent of the time eighty three point seven percent of the time this dog alerts when i understand that but i am  of this makes a decision to let it come in and of course like that lex is alert is i think critical to the finding of of the concealed compartment that much is pretty clear yes and i think that the government conceded that they wouldn't have probable cause to write for it without lex's alert and it terms of whether that these things just go to way i think ultimately in terms of determining the admissibility of the evidence to begin with you have to determine whether he's a well trained dog by the by a standard and to do that you have to consider all of these things one of the problems with the district court's ruling here was he really talked about the number and he didn't specifically address any of the problems lex's problem isn't just although i think the biggest one is he basically alerts every time almost one hundred percent alert rate and we have a dog alert basically a hundred percent of the time and then you have percent and the other thing is the pool of cases that is given i think a district judge placed some importance and this isn't a random array of people in the population at large the police aren't just stopping you know every third car and having the that maybe the percentage of positive alerts should be higher than i thought it maybe should be higher but ninety three percent is the actual number i think of how off the rulers that is a huge number and we actually went and gave your in our initial brief and gave you this statistics on the consent searches when the law when these officers in bloomington give consent searches for people to get in cars for similar reasons for similar suspicions there are twenty eight percent wrote anything coming out of those searches twenty percent doesn't it strike you that that's actually fairly predictable too though i mean if somebody has given consent to a search it seems logical to me that the person either thinks the police are not going to find the hidden drugs or maybe they're they know i didn't bring my drugs with me today you know i don't have anything that there may be some sense in the judge but the idea that the bloomington police department can spot not you know ninety three percent of the time they're able to spot a person just on the basis of punches i think that stretches the bounds of the imagination now they get there and there's a lot done and we go over all this in the briefing to try to corroborate lexus there's a little leaf material on the floor we could be marijuana he gets points for that but ultimately i think this comes down to at the end up into of the problems lex has in training combined with the eighty three point seven percentage figure that's how often he alerts when there is nothing now of course the government supreme court st it's always possible there could have been over there before but eighty three percent of the time he's exposing items to search they don't have the right to be searched those are the innocent items there is nothing in there that's what could bias was worried about and  i don't think lex can meet that test and when you the district court here did not address any of the specific problems like head and they weren't just with the field lex failed to objective tests conducted by a government expert replete with various plastic bags and things he alerted the plastic bags in training and the only thing they did was pull on his leash really hard they didn't do the kind of training where they just exposed him to bags and see if he would look to them or not they didn't do that so he had a problem with that in terms of his training he has the problem that comes from the failure to get any kind of a test to determine the low threshold for what he if he's so sensitive he'll alert to the five dollar bill you have in your pocket your honor then he can't separate one order meeting for not over a meeting and they didn't prove that either and when you have this eighty three percent figure and the definition of could bios and these problems the district court at the very least has to address them wanted to be hoping the dog would get there before they got it done to continue using to get a few warning yes or yes i think it's about seven minutes that wasn't he it wasn't it wasn't a long time no the officer admitted he was hoping that it was going to last long enough to get the dog there but it was not a long time that they were there waiting that's certainly true and then the officers arrive and they sort of walk around the car and the canine gets there and they bring him around now i think everybody admits from the government to to the person that would know but ultimately you needed lex to make the determination and we didn't get an answer from the judge in each of these problems with lex and this is a very problematic dog the other cases we did we allude to the bucks or the car he just alerted and he alerted up by the front of the car he wasn't underneath the car and then they went in search the whole car if you look at the video and the images that we have that you'll see that he he works toward the front of the vehicle on the on the driver side it's not actually around the learning underneath the vehicle but based on based on the fact that we have all these problems with this training and the other cases don't involve the dog who's alerting over eighty percent of the time when exposed to no drugs at all so it looks like i'm out of time i  drugs at the rates that are set forth in the briefs here we respectfully disagree first of all because the supreme court florida the house establishes that the paramount consideration is performance in controlled environments that's tr doesn't even do that well he does know he does that very early on in controlled environments he was certified he received advanced certification now talking about the no protests that the no test was after the search in this case was after that and that was in two instances that wasn't a it wasn't a full on sort of occasion it wasn't in the practice it's entailed to some weight but very limited weight because it wasn't known to the officers at the time and when they're making this determination as to whether this dog establishes probable cause it's entitled to some a very little weight if you look at his is sort of vacation prior to and training prior to the search in this case during two thousand and ten he had he conducted four hundred eighteen practice narcotics searches he had two false positives meanings meaning that there were there were no drugs there but he said that there were at and fifteen false negatives meaning that there were drugs there but he said there weren't there so sort of the government's position that a dog who's perfect at the school but that never gets it right out in the field that always alerts when there are no drugs or fails to alert when there are drugs it's a perfectly good i don't want to use for a search if the only evidence that's presented is this this thread of perfect performance in training then that we know that that you also introduce evidence yes and then that he's terrible on the field i would say zero zero zero l so you know he gets it right ten percent of the time when there are drugs and he fails the other ninety percent of the field records are might be of relevance but are our vet of best marginal relevance and that's because it's crazy i mean that's where he's being trained to work t and drugs were not found whether it was a false positive muffler i think you're over reading florida versus harris me i think it's it's saying that you know make your best case look at all the circumstances there might be a reason  alerts and the officer doesn't spot what he's alerting to but i don't i don't think it means that the field is just beside the point no absolutely not your honor and that's not a position it's not beside the point it's entitled to some weight but little weight and in this case it doesn't do the work that it would need to do to rebut or to overcome all of the other evidence in this case which is the evidence of his training and performance and all of the evidence that we presented because there's some troublesome evidence to officer shipley rewards him every time he alerts to the reward comes before we find out if it was a false positive or a true positive he this dog is trained to be rewarded with a bite toy in training which is not the same thing that he's trained to recognize when he lurks so that and beezer who testified said that this is an appropriate method of of of conduct for and handler so  there's a variable reward with a specific reward being the toy that he's trained with and another cations praise and mr bentley is basically embarrassed at this ninety three percent alert rate in the field he says i don't like to see i don't know you know what he did smell and he did alert i don't but that's it seems to me that with that quantity of drugs there's it's not hard to get a word well the question is whether his overall everything known to the officers at the time when they conducted that search gave them confidence and it's a totality that i don't understand it so that it would be positive but so he did to alert to say that well he doesn't have a very good record at alerting ninety six searches he did alert eighty nine times and that was explained by the context and beezer interviewed them in terms of how he used but of those eighty nine learn a lot it's drug presence was corroborated on fifty three occasions that's almost hundred percent dog so if you've got a police department that's a little shy of probable cause but either profiling or whatever this case kind of a marginal waving over weight situation and they they search the car nothing's there because people you know because no criminal proceedings are brought so we see the cases like this one where after the fact we discover that there was a huge amount of cocaine in the will be alert rate in in lamar's was very high there were i believe is a ninety three percent alert rate and thirty one percent and the court said if we assume that sixty two percent is only one he was accurate that's that i'm not sure there's any potential for manufacture here this is every there's no suggestion of anything but good faith and good faith training of this dog and it is a very positive behavior during training during the using  because if you can bring out a dog that's going to alert to ninety three percent of cars and i won't exaggerate so ninety three percent of cars of course you're only going to prosecute in the group that wind up being a problem are are we seriously adding to the evidence that would either support or undermine probable cause with such a job yes because he's been shown to be corroborated sixty percent of the time and we don't know whether the other the other twenty some odd percent or thirty some percent is a is of false positive or not it could have been a true positive we just don't know that drugs could have been well hidden in that car the drugs couldn't there could been marijuana being smoked a few hours before and we don't know and there was no there was no admission by the by the occupants of the car that dog may very well been accurate in that additional thirty percent of the time we don't know that's why we have to concentrate and focus training and certification was offered in that case and even in that context without these very probative and very supportive field training and certification records the court found that only those those fields that field that are data was sufficient but couple of a couple things quickly first paul in terms of visas testimony it's important beazer testimony testified you should never give him the giftie toy out in the field because you don't know what he's getting in right or not both expert system the defense expert is right that to shively is shown on video doing it it's not he says that he does it he always rewards in one way or another but he did what he wasn't supposed to do so there's a problem there the problem and what's not discus marise in the same way that we've discussed it here is the well trained dog definition of good bias in the percentage of time the dog is exposed in no objective evidence of drugs and still alerts that didn't come up in and that's what's important to bias i think we've gotten away from then and if we focus on that figure in this case with this dog and all of his problems this dog cannot be a will trained dog and when we consider that the district court in address any of these specific training problems  the opinion is insufficient this is not a well trained dog pursued to come by us this is an excuse to search the car not a justification that's what the numbers tell us thank you on all right thank you very much thanks to both take a case undersized