* The Honorabl e Rob e rt Holmes Bell , Chief United St ates Dis tri ct Judge for the Western District of Michigan, s itting by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0189P (6th C ir.) File Name: 04a01 89p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.
R EGINA LD B OXLEY , Defenda nt-Appel

lant. X - - - -> , - - N No. 02-6446

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 98-10045—James D. Todd, Chief District Judge.

Argued: April 27, 2004 Decided and Filed: June 22, 2004
Bef ore : M ART IN an d R OGE RS , C irc ui t J udg es; BELL,

Chief District Judge. *

_________________ COUNSEL
ARGUED: David W. Camp, PET TIGREW& CAMP, Jackson, Tennes se e, for Appellant. Christopher E. Cotten, 2 United States v. Boxley No. 02-6446

ASSISTANTUNITED STATES ATTORNEY , Memphis, Tennessee, for Appellee. ON BRIE F: David W. Camp, PETTIGREW

& CAMP, Jackson, Ten

nessee, for Appe llant. Christopher

E. Cotten, ASSISTANT UNI TE D STATES ATTORNEY, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. Reginald Boxley appeals his conviction of possession of sixty grams of cr ack cocaine with the inten t t o distribut e under 2 1 U.S.C. § 841(a)(1). Based on

the reasoning of the district court, we affirm the judgment. We write only to ela borate on two issues: (1) the qualifica

ti on of testimony reg arding canine searches, and (2) the operation of the pr esumption under the doctrine of spoliation.
I

. Testim ony on Canine

Searche s: Qualifica

tions
Onthe night he was arrested in Dece mber of 1997, Boxley was subjected to a canine search for drugs by

a drug-detection dog, Cuffs. Though Cuffs alerted to Boxley ’s pant p ocket, the police f

ound no dr

ugs in the pocket

or on Bo xl ey’ s b od y. The police did, however, find drugs nearby and, based in part onCuffs’s a lert, arrested Boxley . At Boxley’s trial for possessionof cocaine, the prosecution submitted testimonial ev idenc e by Office

r Anderson, Cuffs’s handler, that drug dogs alert to a

romas of drugs, not d rugs themselves, and that Cuffs’s alert to Box ley’s pocke t demonstrates that Boxley carried an aroma of drugs. This testimon y was intended

to link Boxley to the dru

gs that were fou

nd in his vic inity

that night.
Oncross-e

xamination, Boxley

ask edOfficer Anderson whether he had any

documentation, suc h as “search find shee ts, ” to ve ri fy t he do g’ s p ri or hi st or y an d a cc ur ac y.No. 02-6446 United States v. Boxley 3

Anderson stated that the department did not keep accuracy records for drug dogs, but that Cuffs wa s certified as a drug dog after a two -mont h training progra m. Anderson also explained th at C uffs’s record on the department’s computer databas e was deleted after Cuffs passed away, more

than two years before Boxley ’s trial. When asked whether Cuffs had alerte d in the past to a finding of no drugs, as he did in thi s case, Anderson acknow

ledged that C uf fs had done so one other time in his prior sixty to seventy sear ches. Anderson also stated that no dog can be“one hundred percent accurate.” Onappe al, Boxley

claimed t

hat the di strict co

urt abuse d its discretionin allowing Anderson’s testimony bec ause Cuffs’s qualifications could not be documented or verified.
We recognize that an al e rt in the context of a canine narcotics sniff indicates that narcotics are present in the item be ing sniffed or have been present in such a wa y as to leave a detectable odor. United

States v. Buchanon , 72 F.3d 1219, 1217 n.1 (6th Cir. 1995). Thus, we now consider whether the testimony rega rding the aler

t in this ca se is reli able. Th is Courtconsidered the reliability of testimony as to canine searches in United States v. Diaz , 25 F.3d 392 (6th Cir. 1994), for pu rpos es of det

ermining whether a canine ’s alert

could satisfy probable cause for a warr antless search of a

car in a public parking

lot. For guidance in determining w hether such testimony was admissible without do cum entation verifying the dog’s reliability, we applied general principles of evidenc e law. We held that in order to admit evidence of a dog’s alert

to anaroma of drugs, it is not necessar y to provide the dog’s training an d perf

ormance record s, as it is si

milarly unnecessary

to qualify a human expert in this way . Rather, testimony as to the dog’s record

is sufficient. Id . at 3 96. We stated: “[ w]hi le training and performance doc umentation would be us eful in evaluating a dog’s reliability , here the testimony of [ the dog’s handler] sufficiently established the dog’s reliability.” Id

. 4 United States v. Boxley No. 02-6446

We also dete

rmined tha

t it is not ne cessary

for the go vernment

to show that the dog is accurate one hundr e d percent of the time , becau se “a ve ry lo w percen

tage of false positives is not necessarily fa tal to a f inding that a drug detection dog is properly

trained and certified.” Id . In Diaz , we concluded: Whenthe ev idenc e presented, whether testimony from the dog’s t rainer or reco rds of the do g’s tra inin g, establishes that the dog is generall y certifie d as a drug detection dog, any

other evidence, including the testimony of other experts, that may de tract from the reliabil ity of the dog’s performance properly goes to the credibi lity

of the dog. Lack

of additional evidence, such as documentation of the exact co u rse of t raini ng, similarly would affect the dog’s reliability . As with the admissibil ity

of evidence, ge ne ra ll y, the admissibility of ev idence regar

ding a d og’s tr aining a nd relia bili ty i s committed to the trial court’s sound discretion. Id

. at 394. Thus, after

it is shown tha

t the dog is certif ied, all other evi den ce relating to his accuracy goes only to the credibi lity

of the tes timo ny, not to the d og’s qualifica

tions. See United States v. Sanchez-Pena , 3 3 6 F.3d 431 (5th Cir. 2003) (eviden

ce that the do g was certified was sufficient proof of his training

to make a n effective aler

t); United States v. Daniel , 982 F.2d 146, 152 n.7 (5th Cir. 1993) (noting that there is no requirement of an affidavit demonstrating the reliabil ity of a dru g-detec ting d og) ; United States v. Wood , 9 15 F.Supp. 1126, 1136 n.2 (D.Kan.1996), rev’d on other grounds , 106 F.3d 942 (10th Cir. 1997) (“[w]ith a canine, the re l iability should come from the fact that the dog is trained and annually c ertified to perform a physical skill. Whenthe annual certificat i on process involves actual field testing and grading of the canine’s drug-detection skills . . . the canine’s reliabil ity is suffic ient for a

probable cause de te rmina tion absent some circumstance that justifies a more comp lete examination of

the canine’s skill and performance.”). In thi s case, Officer Anderson testified that Cuffs wa s certif

ied as aNo. 02-6446 United States v. Boxley 5

drugdetectio

n dog af ter a tw o- month trai

ning pro gram. Becau se Cuffs was certified, t he district c ourt prop erly admitted Anderson’s testimony. II. Instruction on Spoliation of Evidence At trial, Boxley requeste d the following jury instruction: The government in this case has failed to take ef fort s toward preservation of certain finge rprint evidence. The failure to preser

ve th is evidence cre ates a r ebuttabl e presumptionthat the missing evidence may have been favora ble to the defendant. This presumption could be sufficient to create a question of

reasonable doubt on

the issue of whether Reginald Boxley ever po ssessed the cocaine base charg ed in his indictment.
Inarguing for a pre sumption b ased on the government’s “failure to preserve” evidenc e, Boxley claims spoliation. Spoliation is defined as the intenti onal destruction of evidence that is presume d to be unf

avorabl e to the party re sponsible for its destruction. See Nationwide Mut. Fire Ins. C o. v. Ford Motor Co. , 174 F.3d 801, 804 (6th Cir. 1999). The doctrine

traditionally

operate s again st

the defe ndant in a criminal prosecution. For example, the prose cution usu ally request s a jury instruction on spoliation when the re is evidence that the defendant intentionally destroy

ed evidence again him. Here , Boxley

argue d, unconv entional l y, for the us e of a spoli ation instr

uction against the p olice, so that t h e jury would exer

cis e an unfavorable presumption against the pr osecut ion. Boxley arg ued that in order to hold the government

to it s b ur de n o f p ro vi ng gu il t b eyo nd a reasona ble doubt, he should have ev er y access to presumptions in his favor. The facts of this case do not warrant exercising the presumption. At tr ia l, the government demonstrated that there wa s very little chanc e that even the most diligent 6 United States v. Boxley No. 02-6446
preservation

would have yielde d fingerprint evidenc e . The government

also demonstrated that the police di d not act w ith any intention to destroy evidence . In Nationwide , 174 F.3 d a t 804 , this Court

defined “intentional destr

uction” n ot as a knowing and willf

ul remova l of evide nce, but as remova

l with the “purpose of

rendering it inaccessible or useless to the def endantin prepar

ing its c ase; tha

t is, spoilin

g it.” I n this case, testimony adduced at tria l indicated

that several police officers handled the bag

that contained the drugs. However, as the g overnme

nt conten ds, there is nothing

to indica te that the office rs did so in

bad fait h. Ra ther, the proof at trial indicated that the b ag was

passed a round “b ecause

it was the largest amount of crack any of them had ever seen.”
We agree with the di strict co

urt: “the most that has been shownis that

the policemen did not maintain and control the evidence in a manner consistent with good police tactics. But there was no bad faith invol ved .” Becau se the fin gerpr ints were not likely

to be lifted from

the evidence notwithstanding the office rs’ acti ons, and b ecause

their actions were not in bad faith, th e m ot io n f

or a j ur y i nst ruction on spoliation was properly de

nied.
III
For the foregoing reasons, we AFFIRM the judg

ment of the district c ourt.