BB&K Police Bulletin: Brady Evidence - Failure to Disclose Previous Mistakes in K-9 “Scent Lineups” Violates Brady

by Best Best & Krieger LLP
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Overview: The Ninth Circuit Court of Appeals recently ruled that the state of California violated Brady v. Maryland by failing to disclose exculpatory evidence of a police dog’s history of mistaken scent identifications in a murder trial. The positive canine alert in a “scent pad lineup” had been the only link between the alleged suspect and the murder despite substantial evidence pointing to a different shooter. In a prior case, the prosecution had admitted to two errors made by the dog in similar procedures, leading the judge to exclude the evidence at trial. Although these mistakes were addressed in a letter to the district attorney, the prosecutor told police not to investigate the actual perpetrator, relying heavily on the dog scent evidence to prove Aguilar’s guilt. The appellate court found that police and prosecutors suppressed Brady material at trial, causing the jury to reach a different verdict.

Training Points: There are two key issues for law enforcement to consider with this decision: First, the scope of Brady goes beyond the traditional understanding of Brady material related to human law enforcement officers and extends to the prior history of a canine officer in a similar fashion. The prior history and enforcement actions of police canines can be as important as the prior history of an officer in securing convictions. Second, this decision follows the growing trend in recent cases undermining the credibility and use of police canines. (See previous BB&K K9 bulletins: K-9 Searches and K-9 Police Dogs). Canine officers, like their human counterparts, are only as good as the training that they receive, and care should be taken to maintain training standards for all law enforcement personnel, whether on two feet or four.

Summary Analysis: In Aguilar v. Woodford, Gilbert Aguilar was convicted of first-degree murder in a Los Angeles County Superior Court jury trial after police dog “Reilly” identified his scent on the front seat of a car. Although a judge had previously excluded evidence based on Reilly’s mistaken identifications, the prosecutor did not reveal the prior information at Aguilar’s trial. Without proof from this “flawed” procedure, the evidence against Aguilar was weak. A different suspect who looked similar to Aguilar had a clear motive to shoot the victim and even admitted to shooting his brother’s alleged killer. The court found that the public defender’s letter addressing prior Reilly cases was Brady evidence imputed to the prosecutor and known by the K-9 handler. Based on these facts, the court held that the state’s suppression of Reilly’s history prejudiced the verdict against Aguilar and violated Brady.

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