Tuesday, August 17, 2004
Dino hounded by attorney's challenge
jen.mccaffery@roanoke.com 981-3336
It's not often that the name Dino comes up in drug cases.
Yet the canine has been responsible for conducting hundreds of searches for drugs over the last few years, according to court documents.
In the case of two Nashville, Tenn., men who were stopped along Interstate 81 in Botetourt County for speeding, then indicted on drug and gun charges, defense attorneys took the unusual step of challenging not only the evidence in the case, but also Dino himself.
The case of Xavier Jauquin Gray and Denarko Vantrease Potter has raised the issue of what constitutes a reasonable search and seizure under the U.S. Constitution after a traffic stop.
On Monday, both Potter and Denarko pleaded guilty in federal court to the charge that they each possessed a firearm as a convicted felon. They had also each faced charges of crack cocaine possession with intent to distribute and having a firearm during a drug trafficking offense.
But federal prosecutor Ed Lustig said results came back after the defendants were indicted that the amount of cocaine found in Gray's rented 2004 Excursion was small enough that it would have made a distribution argument difficult.
Denarko and Potter each face up to 10 years in prison with the conviction, but will likely be sentenced to considerably less time under federal sentencing guidelines.
But defense attorneys in the case questioned why a state trooper stopped Gray and Potter in the first place and then raised questions about Dino's reliability.
On Dec. 8, 2003, Gray was driving a 2004 Ford Excursion when Trooper Lee Willis stopped the car for going 75 to 80 mph in a 65 mph zone, according to court documents. Willis asked for Gray's license and registration and learned that they had rented the car in Tennessee and were going to New York for clothes, according to court documents.
During their initial conversation, Willis noted that Gray and Potter had a map on the back seat, fast food wrappers in the car, and didn't have any luggage in the back seat, which he said are signs that drivers might be on a drug run, according to court documents.
Willis told Gray he was going to let him off with warning, and said he was going back to his car to do some paperwork. He radioed in to his colleagues, mentioning that Gray was black and that Potter looked like Snoop Doggy Dog, according to Cargill. Then Willis ran their criminal histories and found they had each had prior drug convictions. He called in a canine unit, which is legal.
Gray and Potter remained at the scene for about 12 minutes, while Willis was running the background checks. They have argued that they were illegally detained during that time, because the traffic stop had ended.
Willis then came back to the car, gave Gray his license back, and asked if he could search the car, according to court documents.
Gray said no to the search, but said Willis could "run the dogs." By that time, Dino had arrived with trooper E.A. Fischer, according to court documents. Dino alerted on the car, giving troopers probable cause to search the car. When troopers searched, they found a loaded handgun and crack cocaine, according to court documents.
But Cargill questioned Dino's skill at alerting. According to documents Cargill requested from federal prosecutors in the case, when it came to accurate car searches, Dino had a success rate of about 40 percent, Cargill argued.
Lustig argued that the stop was not racially motivated and that Willis had good reason to suspect that Denarko and Potter were on a drug run. Lustig also argued that Dino does not alert at every opportunity. Dino is trained to detect the odor of drugs, so it is reasonable that sometimes actual quantities are not found. And Lustig argued that when Dino does alert, more often than not, drugs are found.
U.S. District Judge Glen Conrad ultimately ruled earlier this month that the search of the car was legal. Conrad found that the combination of indicators in the case gave Willis enough probable cause to suspect Potter and Gray might be running drugs and so call in a canine. Conrad also found that Dino's performance was satisfactory and reliable.
