United States of America v. Reginald Boxley

*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
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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.
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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.
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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.

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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.
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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

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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 as the 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
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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.

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