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United States v. Zhou

United States District Court, M.D. Pennsylvania

August 6, 2019

UNITED STATES OF AMERICA
v.
XIAO WU ZHOU (1) and CHUANZE XU (2), Defendants

          MEMORANDUM

          Christopher C. Conner, Chief Judge.

         In April 2018, this court resolved a motion to suppress filed by defendants Xiao Wu Zhou (“Zhou”) and Chuanze Xu (“Xu”). We held that (1) Pennsylvania State Police Trooper Jeremy Hoy (“Trooper Hoy”) had reasonable suspicion that defendants committed a traffic violation which justified initiating a traffic stop on October 31, 2017, and (2) Trooper Hoy then developed reasonable suspicion that defendants were engaged in criminal activity sufficient to extend the duration of that stop and request a canine unit for a dog sniff. Zhou now moves to suppress evidence obtained during that traffic stop based on the alleged impropriety of the dog sniff. (Doc. 72). The court will deny Zhou's motion.

         I. Findings of Fact [1]

         The evidence adduced during the July 19, 2019 evidentiary hearing falls into three categories: fact witness testimony and documentary evidence concerning canine training and procedures; fact witness testimony and documentary evidence regarding the dog sniff conducted during the October 31, 2017 traffic stop; and expert testimony on the issues of natural and trained canine behavior.

         A. Canine Training and Procedures

         In 2011, the Pennsylvania State Police acquired a one-year-old Belgian Malinois named Tom (“Canine Tom”). (Tr. 9:10-15, 21:20-21). Trooper Aaron Tiracorda (“Trooper Tiracorda”) was assigned as Canine Tom's handler, [2] and the two began a 12-week basic training course for narcotics detection in May 2011.[3] (Id. at 8:5-13, 8:24-9:4, 9:13-15, 10:7-10, 11:11-14). Handlers train with their canines in “real-life settings”-e.g., buildings and automobiles-using real narcotics, known as “training aids” or “finds.” (Id. at 10:11-11:10). Trooper Tiracorda and Canine Tom completed the 12-week course on July 22, 2011. (Id. at 9:13-15). Canine Tom was trained to detect heroin, methamphetamine, marijuana, and cocaine. (Gov't Ex. 4 at 7; Tr. 16:19-23).

         Canine teams “must certify annually, ” attend monthly in-service training sessions, and train a minimum of four hours per week. (Gov't Ex. 11 at 2-3; Tr. 9:16-10:6). Trooper Tiracorda and Canine Tom were most recently certified by the Pennsylvania State Police on October 3, 2017, and October 3, 2018. (Gov't Ex. 6; Gov't Ex. 7; Gov't Ex. 10 at 77). In the ten months preceding the October 31, 2017 traffic stop, Canine Tom located 85 of 89 hidden finds resulting in a 95.5% success rate. (Gov't Ex. 9 at 1, 12, 17, 22, 31, 35, 43, 50, 54, 59).

         The canine team proceeds in several steps when responding to a request for an exterior search of a vehicle. Upon arriving at a scene, the handler walks around the vehicle to identify any potential hazards to the canine. (Tr. 20:24-21:9). The handler and canine then engage in a “fast pass” search pattern which involves a systematic search of the vehicle in one direction and then a reverse of that search. (See id. at 36:5-18, 53:5-7). Typically, the handler will commence the search pattern by commanding the canine to “find it.” (Id. at 53:2-4).

         Trooper Tiracorda defined Canine Tom's alert behavior as “a sudden change in posture [and] an increased respiration when the dog first encounters the odors he's trained to detect.”[4] (Id. at 14:19-23). Alert behavior cannot be trained; it is a “natural reaction to stimuli.” (Id. at 14:24-15:2). When a canine exhibits alert behavior, the handler conducts a “two-meter rule” exercise. (Id. at 15:3-6). The handler will “detail” a two-meter area near the location where the canine began to alert by “cast[ing] productive areas” where contraband may be found. (Id. at 15:3-15). A handler casts by using the back of a hand, without patting a particular location, to lead the dog to smell within the two-meter area. (Id. at 15:15-17).

         A canine is taught to pinpoint the source of the odor first alerted to by exhibiting trained indication behavior. (Id. at 16:2-7). Canine Tom was trained to passively indicate the position of narcotics by locking, pointing, and staring at the location. (Id. at 15:23-16:1, 16:15-18, 16:24-17:12, 44:12-15, 55:21-23). Trooper Tiracorda explained that Canine Tom was also trained to sit as part of his indication behavior. (Id. at 16:24-17:6, 29:13-16, 44:12-15). Trooper Tiracorda described sitting as the preferred posture that accompanies the locking, pointing, and staring. (Id. at 37:5-8, 44:14-15, 48:22-24, 55:21-24). When the source of an odor is low to the ground, Canine Tom will sometimes lie down rather than sit. (Id. at 17:7-8, 44:12-15). And Trooper Tiracorda noted that Canine Tom sometimes stands rather than sits when exhibiting the lock, point, and stare indication. (Id. at 17:6-7, 29:13-30:4).

         Canine Tom is trained to associate the odor of narcotics with finding a toy. (See id. at 17:23-25, 70:5-6). When Canine Tom locates narcotics, he is rewarded with various toy-like items.[5] (Id. at 25:20-24). Canine Tom will not stop staring and will not leave the location of a find until he receives a reward. (See id. at 17:22-18:1, 55:24-56:3, 72:8-11). To remove Canine Tom from a find location in the field without rewarding him (for example, in the event of a false indication), Trooper Tiracorda will conduct a “praise off.” (See id. at 17:13-18:5, 72:15-24). A praise off involves verbally encouraging or praising Canine Tom for following his training and physically removing him from the location. (Id. at 18:5-7, 25:16-19, 70:2-3, 72:8-11). The praise off is designed to balance two competing goals: (1) to remove Canine Tom from the scene without correcting him (e.g., with a leash tug) for what is likely a successful find and (2) to avoid prematurely rewarding Canine Tom before confirming drugs are present. (See id. at 18:8-10, 25:11-19, 70:12-71:5, 71:12-18, 72:8-24). Once Trooper Tiracorda confirms the presence of drugs, Canine Tom receives a toy reward as positive reinforcement. (Id. at 70:3-4, 71:12-15, 72:15-17).

         B. Dog Sniff of the U-Haul Truck

         On October 31, 2017, Trooper Tiracorda responded to Trooper Hoy's request for a canine unit on the eastbound side of Interstate 80 near mile marker 159. Zhou, 2018 WL 1858187, at *2; (Tr. 12:16-13:3). Trooper Tiracorda canvassed the exterior of the U-Haul truck looking for anything that could harm Canine Tom. (Tr. 20:24-21:9; Gov't Ex. 1 at 15:11:00-15:11:45). After determining that the wind was blowing west to east, Trooper Tiracorda decided to begin the canine search at the front of the vehicle to “use the wind to bring any odors . . . to the dog.” (Tr. 13:15-14:1). As Trooper Tiracorda moved Canine Tom downwind toward the front of the U-Haul truck to begin a search pattern, Canine Tom suddenly stopped and snapped his neck and body back toward the rear wheel well on the passenger side of the truck. (Id. at 14:2-12, 22:22-23:6; Gov't Ex. 1 at 15:14:55-15:15:07). Canine Tom then began closing his mouth and exhibited “increased shallow respirations.” (Gov't Ex. 4 at 7; Tr. 14:19-23).

         Trooper Tiracorda observed Canine Tom's alert behavior and immediately detailed the area by casting his hand along the bottom rail of the U-Haul truck's cargo box near the rear wheel well. (Tr. 15:18-22, 22:2-11, 23:2-14; Gov't Ex. 4 at 7; Gov't Ex. 1 at 15:15:05-15:15:15). He held the leash loose to allow Canine Tom room to maneuver. (Tr. 23:13-21; Gov't Ex. 1 at 15:15:05-15:15:15). Canine Tom paced back and forth in shorter and shorter distances as he narrowed down the source of the odor. (Tr. 24:3-9; Gov't Ex. 1 at 15:15:15-15:15:25). Canine Tom then locked onto the rear corner of the cargo area on the passenger side, froze in place, and indicated by standing, pointing his head and nose out, staring, and wagging his tail. (Tr. 15:23-16:1, 16:10-18, 24:12-16; Gov't Ex. 1 at 15:15:23-15:15:33). Although Trooper Hoy briefly stepped in between the dashboard camera and Canine Tom, Canine Tom's indication behavior is clearly visible both before and after Trooper Hoy obstructs the camera's view. (See Gov't Ex. 1 at 15:15:25-15:15:35). Trooper Tiracorda continued moving back and forth for a few moments, but Canine Tom remained frozen ...


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