*

The Honorable Robert Holmes Bell, Chief United States District

Judge for the Western District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0189P (6th Cir.)

File Name: 04a0189p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

REGINALD BOXLEY,

Defendant-Appellant.

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 

Before: MARTIN and ROGERS, Circuit Judges; BELL,

Chief District Judge.*

_________________

COUNSEL

ARGUED: David W. Camp, PETTIGREW & CAMP,

Jackson, Tennessee, for Appellant. Christopher E. Cotten,

2 United States v. Boxley No. 02-6446

ASSISTANT UNITED STATES ATTORNEY, Memphis,

Tennessee, for Appellee. ON BRIEF: David W. Camp,

PETTIGREW & CAMP, Jackson, Tennessee, for Appellant.

Christopher E. Cotten, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Reginald Boxley

appeals his conviction of possession of sixty grams of crack

cocaine with the intent to distribute under 21 U.S.C.

§ 841(a)(1). Based on the reasoning of the district court, we

affirm the judgment. We write only to elaborate on two

issues: (1) the qualification of testimony regarding canine

searches, and (2) the operation of the presumption under the

doctrine of spoliation.

I. Testimony on Canine Searches: Qualifications 

On the night he was arrested in December of 1997, Boxley

was subjected to a canine search for drugs by a drug-detection

dog, Cuffs. Though Cuffs alerted to Boxley’s pant pocket,

the police found no drugs in the pocket or on Boxley’s body.

The police did, however, find drugs nearby and, based in part

on Cuffs’s alert, arrested Boxley. At Boxley’s trial for

possession of cocaine, the prosecution submitted testimonial

evidence by Officer Anderson, Cuffs’s handler, that drug

dogs alert to aromas of drugs, not drugs themselves, and that

Cuffs’s alert to Boxley’s pocket demonstrates that Boxley

carried an aroma of drugs. This testimony was intended to

link Boxley to the drugs that were found in his vicinity that

night. 

On cross-examination, Boxley asked Officer Anderson

whether he had any documentation, such as “search find

sheets,” to verify the dog’s prior history and accuracy.
No. 02-6446 United States v. Boxley 3

Anderson stated that the department did not keep accuracy

records for drug dogs, but that Cuffs was certified as a drug

dog after a two-month training program. Anderson also

explained that Cuffs’s record on the department’s computer

database was deleted after Cuffs passed away, more than two

years before Boxley’s trial. When asked whether Cuffs had

alerted in the past to a finding of no drugs, as he did in this

case, Anderson acknowledged that Cuffs had done so one

other time in his prior sixty to seventy searches. Anderson

also stated that no dog can be “one hundred percent accurate.”

On appeal, Boxley claimed that the district court abused its

discretion in allowing Anderson’s testimony because Cuffs’s

qualifications could not be documented or verified. 

We recognize that an alert in the context of a canine

narcotics sniff indicates that narcotics are present in the item

being sniffed or have been present in such a way 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 regarding the alert in this case is reliable. This

Court considered the reliability of testimony as to canine

searches in United States v. Diaz, 25 F.3d 392 (6th Cir. 1994),

for purposes of determining whether a canine’s alert could

satisfy probable cause for a warrantless search of a car in a

public parking lot. For guidance in determining whether such

testimony was admissible without documentation verifying

the dog’s reliability, we applied general principles of evidence

law. 

We held that in order to admit evidence of a dog’s alert to

an aroma of drugs, it is not necessary to provide the dog’s

training and performance records, as it is similarly

unnecessary to qualify a human expert in this way. Rather,

testimony as to the dog’s record is sufficient. Id. at 396. We

stated: “[w]hile training and performance documentation

would be useful 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 determined that it is not necessary for the

government to show that the dog is accurate one hundred

percent of the time, because “a very low percentage of false

positives is not necessarily fatal to a finding that a drug

detection dog is properly trained and certified.” Id. In Diaz,

we concluded:

When the evidence presented, whether testimony from

the dog’s trainer or records of the dog’s training,

establishes that the dog is generally certified as a drug

detection dog, any other evidence, including the

testimony of other experts, that may detract from the

reliability of the dog’s performance properly goes to the

credibility of the dog. Lack of additional evidence, such

as documentation of the exact course of training,

similarly would affect the dog’s reliability. As with the

admissibility of evidence, generally, the admissibility of

evidence regarding a dog’s training and reliability is

committed to the trial court’s sound discretion. 

Id. at 394. Thus, after it is shown that the dog is certified, all

other evidence relating to his accuracy goes only to the

credibility of the testimony, not to the dog’s qualifications.

See United States v. Sanchez-Pena, 336 F.3d 431 (5th Cir.

2003) (evidence that the dog was certified was sufficient

proof of his training to make an effective alert); 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

reliability of a drug-detecting dog); United States v. Wood,

915 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

reliability should come from the fact that the dog is trained

and annually certified to perform a physical skill. When the

annual certification process involves actual field testing and

grading of the canine’s drug-detection skills . . . the canine’s

reliability is sufficient for a probable cause determination

absent some circumstance that justifies a more complete

examination of the canine’s skill and performance.”). In this

case, Officer Anderson testified that Cuffs was certified as a
No. 02-6446 United States v. Boxley 5

drug detection dog after a two-month training program.

Because Cuffs was certified, the district court properly

admitted Anderson’s testimony. 

II. Instruction on Spoliation of Evidence

At trial, Boxley requested the following jury instruction:

The government in this case has failed to take efforts

toward preservation of certain fingerprint evidence. The

failure to preserve this evidence creates a rebuttable

presumption that the missing evidence may have been

favorable to the defendant. This presumption could be

sufficient to create a question of reasonable doubt on the

issue of whether Reginald Boxley ever possessed the

cocaine base charged in his indictment. 

In arguing for a presumption based on the government’s

“failure to preserve” evidence, Boxley claims spoliation.

Spoliation is defined asthe intentional destruction of evidence

that is presumed to be unfavorable to the party responsible for

its destruction. See Nationwide Mut. Fire Ins. Co. v. Ford

Motor Co., 174 F.3d 801, 804 (6th Cir. 1999). 

The doctrine traditionally operates against the defendant in

a criminal prosecution. For example, the prosecution usually

requests a jury instruction on spoliation when there is

evidence that the defendant intentionally destroyed evidence

again him. Here, Boxley argued, unconventionally, for the

use of a spoliation instruction against the police, so that the

jury would exercise an unfavorable presumption against the

prosecution. Boxley argued that in order to hold the

government to its burden of proving guilt beyond a

reasonable doubt, he should have every access to

presumptions in his favor. 

The facts of this case do not warrant exercising the

presumption. At trial, the government demonstrated that

there was very little chance that even the most diligent

6 United States v. Boxley No. 02-6446

preservation would have yielded fingerprint evidence. The

government also demonstrated that the police did not act with

any intention to destroy evidence. In Nationwide, 174 F.3d

at 804, this Court defined “intentional destruction” not as a

knowing and willful removal of evidence, but as removal with

the “purpose of rendering it inaccessible or useless to the

defendant in preparing its case; that is, spoiling it.” In this

case, testimony adduced at trial indicated that several police

officers handled the bag that contained the drugs. However,

as the government contends, there is nothing to indicate that

the officers did so in bad faith. Rather, the proof at trial

indicated that the bag was passed around “because it was the

largest amount of crack any of them had ever seen.” 

We agree with the district court: “the most that has been

shown is that the policemen did not maintain and control the

evidence in a manner consistent with good police tactics. But

there was no bad faith involved.” Because the fingerprints

were not likely to be lifted from the evidence notwithstanding

the officers’ actions, and because their actions were not in bad

faith, the motion for a jury instruction on spoliation was

properly denied. 

III

For the foregoing reasons, we AFFIRM the judgment of the

district court.