clear a defendant must have an opportunity to challenge the reliability of a drug sniffing dog whether by cross examination of the testifying officer or by presenting his own fact or expert witness the court did not condition cross examination of the testifying officer on the defendant's presentation of his own evidence and since your time is short the supreme court at page two forty seven of their opinion the courts should allow the parties to make their best case consistent with the usual rules of criminal procedure the defendant here did not file as affidavit pursuant to rule twelve and i think that's where the that's where the issue is so sad blanket rule florida versus here is established here's the issue of mr new yes not complying with walter found was a rule twelve so how we deal with that well i think there was substantial compliance with the local rule in this case the defendant's motion identified  that the defense had not received any information about the drug sniffing dog not even the parts of the car that it alerted to the motion specifically requested an opportunity to cross examine the motion was written by counsel and it identified that there was outstanding evidence related to the drug sniffing dog and then in their reply the defense counsel  also identified that there was outstanding discovery and cited this court's decision in thomas and said that the government was required to disclose the hammer's log the training records all of those  records that the court had identified in thomas that the government was compelled to disclose when it relied on a drug sniffing dog for probable cause and so and then at the motions hearing itself to found defense counsel identified that it had received the complete set of discovery the friday before the monday motions hearing and the friday after thanksgiving defense counsel made a preliminary offer of proof  was prepared to make a more substantial offer of proof had the records there i'd prepared to move those records was prepared to move those records into evidence and also was prepared to cross examine the handler who  what facts were proffered reprove no there was no declaration by a fact or expert witness because there hadn't been a disclosure of the dog's records at that point so the defense counsel declaration and the motion noted that there had been no production of discovery related to the dog and defense counsel did not even know at that point which part of the car that the drug had alerted to so there was insufficient evidence and discovery at that time to make if a showing in a declaration and there was insufficient evidence to give to an expert witness at the time the motion was filed question as to whether local rule twelve one point one applies at all to this situation when the government has produced the documents regarding the canine reliability in particular respect to the relevant search because the rule says a motion to suppress the supported by declaration on behalf of the defendant setting forth all facts then and  i don't see i think you counsel set forth all facts then known to him in his declaration that you had no way you had had knowledge that no other facts that you could have created a declaration that's correct your honor there were there weren't facts then known that we could generate a declaration from and no witness without any facts to present a declaration on behalf of so i think declaration well for example with if the training records had been produced those could have been given to an expert witness who could have put together a declaration and filed with a motion but there were no there was no discovery or facts with respect to the drug sniffing dogs so i think i think the court is correct that the there were no facts then known with respect to the drug sniffing dog and open but the defense had filed a motion part of that november twenty five cut off right so it seemed to me i'm not familiar with their court's precedent but it seems to me you could  correct i think the court in this case did a detailed trial set in conference where the government outlined its case and the relevant evidence that it had and it intended to prove and based on that trial setting conference and the information given by the government the court set a very quick and condensed timeline the motion was due i believe two weeks after the trial set in conference trial was set for six weeks after the trial set in conference so everyone was operating under a very condensed time frame but at the hearing itself defense counsel was prepared to r german was needed under these circumstances where those records were prepared cross examination was prepared the witness was present for the hearing so why wasn't the witness put on the stand and testified i believe the court did not permit cross examination of the handling officer it was a government witness the handler and defense counsel specifically requested to cross examine the handler that the government's witness and the court denied that request because none of this had been flagged previously in an affidavit under rule twelve correct because there was no declaration that was his rationale correct just one final point the records were produced under protective order so they had to be filed under seal they could not be filed publicly or electronically over the weekend before the monday morning hearing all right thank you here please the court on arts and on behalf of the united states the district court did not abuse its discretion in this case in declining to expand the scope of the evidentiary hearing to include a factual issue that was orally raised for the first time at the suppression hearing and i'd like to stress at the outset that this would be a very different case if the defense had filed these training records even tardily if it had sought a continuing needed done fence have filed records that the government had produced until the friday after thanksgiving before the monday of the hearing and produced under a protective order so they couldn't have been electronically filed they could have been filed the day that they were received they could have been filed easily done cross examine the handler everybody's there at the dock and so they're close the court room and let them put on their case your honor this court has consistently found no abuse of discretion in declining to hold an ration other than what they filed because they don't have then known facts suppose they had gotten the records and timely way and they  it typically alerted or not you are apart from the local rule this court's cases have consistently held that hearing is required only when the moving papers present evidence that would permit the court to determine present any evidence from their own expert as to what training was insufficient or what alerting was false unless they knew what dog you were using and w training the dog had well the only issue here was whether the dog's behavior constituted an alert and the defense claim was that the training records show that the dog was not was trained to alert passively and had alerted the defense i want the produce sooner your honor the the the defendant did not make a request for these records until the day that he he didn't find out until the defendant filed his reply brief that the defendant didn't think a protective order was necessary and wouldn't file it that was on the twenty second so as soon as that happened the government contacted the defen there is no dispute about the factual finding that was made in the protective order just asking let's the base well or the characters found that public dissemination could adversely affect the efficacy of the train and you couldn't have gone to the court and gotten that protective order instead of just resting on a dispute with defense counsel you if you got the protective order from the court right yes but the government didn't know there was a dispute with defense counsel until the twenty second  defense counsel stated in his reply papers that he wasn't going to sign the protective order and i would note it in our one thirty the government had no reason to believe there was going to be a problem here because two weeks earlier in a very similar case the government and the public defender's office had agreed to the exact protective order that the government proposed in this case so the government didn't have any reason to believe there was going to be a problem move expeditiously to get the records  again the defense didn't move for a continuance and the question is does the court have to follow fly blind here when we have rules that are here for a good reason they're here not just to allow the court to you know efficiently handle its cases but also to determine whether there is a contested issue of fact and determine whether those training records actually support the claim that was made here of which i which they do sought a continuance and again that would be a very different case so they did this for a court was flying blind as it stated in it did not abuse its discretion under this court's longstanding he sought even apart from the local  rule such as howell stating that you know even if the government does have the burden of demonstrating probable cause the motion still must present disputed facts to determine whether an evidentiary hearing is necessary  also like to take a few minutes to discuss harmlessness and again that the only claim that was really made here was that the dog's behavior did not amount to an alert and the reason for that was supposedly what the dog did not sit which is what it was trained to do this court considered a very similar issue in the thomas case and the parties have discussed the thomas case for a different issue having to do  with whether the government is required to turn over dog discovery under rule sixteen but there was a second issue in that case that is pertinent here and it involved very similar facts that was also a search of a cart a secondary inspection the dog came to a tool box in the defendant's truck it jumped up and placed its paws on the vehicle and pressed its nose against a tool box but it did not sit and it was trained to give passive alerts and the defendant claimed that there was no alert because the dog never sat and therefore gave just untrained responses this court rejected that claim and said there is no rule requiring a final indication you look at whether that signaling behavior under all the facts  circumstances constitutes an alert because probable cause is measured in reasonable expectations and not certainties i would submit here that the dogs actions were an ambiguous this is not a question of whether the dog up its ears enough or whether you know was panting because it was tired the conduct was absolutely unambiguous the dog jumped on the driver's window when it was a door what was placed inside the car it jumped over two seats into the third seat grabbed the handle of a bag that was the bag that contained the meth under any objective really reasonable view of the facts those actions sufficiently demonstrated an alert to support probable cause even if it is true that the dog was not difficulty trained in that behavior and again i would submit to florida's the harris made very clear that probable cause in this context is a term in the way it is in every other context and that is whether all of the facts and circumstances would allow a reasonably prudent person to believe that there's evidence of a crime when you look at this alert even if it was something less than a full alert that behavior in conjunction with the defendant's false statements about not having been in mexico when that was clearly contrary to the records as well as all of the conduct surprise supporting reasonable suspicion when you put all of that together there is just no reasonable view of the fact that there was not probable cause here and therefore there was no evidentiary hearing necessary there nothing of the heart as i read the transcript the court was conducting an evidentiary hearing at least one witness testified well correct but the scope of the evidence sherry hearing did not need to extend to that issue if there was no disputed fact on that issue the issue or the court didn't even have to do that i that accommodation or in good faith he he gave one and allowed cross examination of this fellow rivera who talked about what happened at the stop i wasn't that yes i would agree and then the issue of the dog came up and he says no i don't have any of this in front of me i'm going to stop it here now so i would agree with that your honor there were a number of documents submitted relating to whether there was reasonable suspicion for the stop and the court said i've reviewed all of those records were public decisions from from this court and public information about how dog drug sniffing dogs are trained so when did you transmit that information to the prosecution i believe one thing ok there's perhaps bad communication between the lawyers perhaps we criticize the government for a late disclosure or whatever the case may be but the district judge wasn't involved and that the district judge grants a hearing and cross examination on monday morning and then as we heard he's confronted with all the stuff that occurred out of court and says i don't have  affidavit i don't have any facts i don't know what's going on here my time's limited so we're going to dispense with that what what knowing what we do about florida versus harris and knowing what we know about what district judges are required to do what's the legal error that the district court made here well i think the district court erred by not permitting cross examination of the dog handler when but but he's the judge is trying to move the docket there's no request for an adjournment the documents are there you know i mean i mean i don't see this is mendacious or you know they had spirited efforts on behalf of the district judge he just he didn't know what was going on what why why we had to reverse him for what all what all happened before hand outside court defense counsel put this issue in front of the judge with the original moving papers those papers identified that it was insufficient it was an allegation of counsel there were no no parties fax statements under oath any of those types of things that's what led him to the position he was in yet a judge yes and the declaration of counsel identify that there was outstanding discovery and no discovery had been produced with respect to the drug sniffing dogs so there were no facts then known to defense counsel to put in a declaration thank you