Who’s to blame when a man caught with drugs in his car walks away from a courthouse a free man after the charges against him are dismissed?
This story starts in June of last year. A Tombstone Marshal made a traffic stop and suspected the man stopped has drugs in the car. The marshal called for a canine unit back up. The agent that arrives is from the Border Patrol and after the dog sniffed the car, the agent found methamphetamine inside. To the outside observer this may seem like a simple case, but it ended abruptly when the judge dismissed the charges the morning before the trial.
The files for this case contain hundreds of pages but Cochise County Attorney Brian McIntyre knows exactly where in the stacks to find the one page letter that effectively ended the prosecution.
The letter is from a Department of Homeland Security attorney and is a response to a request from a deputy county attorney requesting records and training logs from the dog and its handler.
Sitting in his Bisbee office, McIntyre quoted a line from the letter, “Those records identify investigative techniques or procedures and therefore will not be disclosed.”
By law, a defendant is entitled to review and challenge the training certifications of a police dog and its handler. McIntyre’s office tried to get those records from border patrol to give them to the man's public defender which is a routine part of a case.
“It is frustrating especially because I thought had we been able to arrange a meeting or something beforehand we might have been able sort it out,” he said.
Because the charges were dismissed KGUN9 has chosen to not identify the man arrested and charged.
This dismissal was perhaps bound to happen because of the county's geography.
Rugged and rural, Cochise County, is more than 6,000 square miles. Most local agencies don’t have the funds to have a large unit of canine officers. The Sheriff's Department has five K-9 units spread across all shifts.
Because of its location along the Mexican border there frequently Border Patrol K-9 agents not far away either working at highway checkpoints or other inspection stations.
“So for the most part is usually a Border Patrol officer that us closest and most able to respond,” explained McIntyre.
After a judge dismissed the charges in this case, McIntyre says leaders of local law enforcement agencies told him they were weary of accepting K-9 help from border patrol, “Obviously, it doesn't make a lot of sense to charge someone if you can’t follow through.”
The judge in the case left open the possibility for the County to file new charges against the man, but McIntyre says he isn’t likely to do so.
Since then, McIntyre says he and federal attorneys have agreed on a new procedure.
The Border Patrol will disclose how the dog and handler performed in trainings during the six months leading up to an arrest. He believes the information should be enough to satisfy legal requirements and successfully prosecute criminals.
“Having the issue come up and getting us all to the table to work out an agreement frankly is probably a bigger benefit than one particular conviction.”