S058001, Opinion — State v. Helzer

153
Argued and submitted May 7, 2010, at Portland State University, Portland,
Oregon, decision of Court of Appeals reversed; judgment of circuit court reversed,
and case remanded to circuit court for further proceedings April 7, 2011
STATE OF OREGON,
Respondent on Review,
v.
KEVIN LEE HELZER,
Petitioner on Review.
(CC CFH050352; CA A133911; SC S058001)
252 P3d 288
After a drug-detection dog alerted to defendant's car, police searched the car
and discovered methamphetamine and a pair of scales with drug residue on them.
Defendant unsuccessfully moved to suppress the seized evidence. Following a
bench trial, the trial court convicted defendant of possession ofmethamphetamine
and, on appeal, the Court of Appeals affirmed the trial court judgment without
opinion. Defendant sought review. Held: the state did not carry its burden to estab-
lish that the dog alert was sufficiently reliable to establish probable cause to
search, because the record showed only that the dog and handler had been certified
by a private organization, and did not provide information about the nature of their
training and the certification standards they had to meet.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further
proceedings.
On review from the Court of Appeals.*
Marc D. Brown, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the brief
for petitioner on review.
Karla Ferrall, Assistant Attorney General, Salem, argued
the cause for respondent on review. With her on the briefs
were John R. Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
* 	Appeal from Umatilla County Circuit Court, Jeffrey M. Wallace, Judge. 231
Or App 567, 219 P3d 617 (2009).
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

154 	State v. Helzer
LINDER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court is 	reversed, 	and 	the 	case is
remanded to the circuit court for further proceedings.

Cite as 350 Or 153 (2011) 	155
LINDER,J.
This is a companion case to State v. Foster, 350 Or
161, 252 P3d 292 (2011), decided this date. As does the defen-
dant in Foster, defendant in this case challenges a warrant-
less search of his car, urging that an alert to the car by a
drug-detection dog did not give police probable cause to
search it for seizable evidence of drugs. As we will explain, we
conclude that the state failed to carry its burden to establish
that the dog alert in this case was sufficiently reliable to pro-
vide police with probable cause to search. We therefore
reverse the decision of the Court of Appeals and the judgment
of the circuit court, and remand to the circuit court for further
proceedings.
Officer Stokoe lawfully stopped defendant's car and,
after the stop, arrested defendant on an outstanding war-
rant. Stokoe asked defendant for consent to search the vehi-
cle, but defendant refused that consent. Stokoe then had his
drug-detection dog, Babe, conduct a "drug sniff' around the
outside of defendant's car. Babe alerted to the passenger side
and trunk area of defendant's car. Stokoe let Babe enter the
car, at which point Babe alerted to two bags in the back seat.
Stokoe opened the bags and found methamphetamine and a
pair of scales. The pair of scales later tested positive for meth-
amphetamine residue. Defendant was charged with posses-
sion of a controlled substance.
Before trial, defendant moved to suppress the evi-
dence found in the search, arguing, as noted, that Babe's
alert to his car was not sufficiently reliable to provide proba-
ble cause for the warrantless search.1 After a hearing, the
trial court denied the motion. Defendant appealed, challeng-
ing that ruling. The Court of Appeals affirmed. State v.
Helzer, 231 Or App 567, 219 P3d 617 (2009).
1 As in Foster, 350 Or at 169 n 3, the search in this case arose under the
so-called "automobile" exception to the warrant requirement of Article I, section 9,
of the Oregon Constitution and the parallel warrant requirement of the Fourth
Amendment to the United States Constitution. See generally State v. Brown, 301
Or 268, 274-76, 721P2d1357 (1986) (officer may lawfully search stopped vehicle
and its contents without warrant or consent if vehicle was mobile when stopped
and if officer had probable cause). No issue has been raised in this case as to the
application or scope of that exception. The only issue is whether, as the exception
requires, Stokoe had the requisite probable cause to search.

156 	State v. Helzer
Our decision in Foster announces the legal stan-
dards that apply here. As we hold in Foster, an alert by a
properly trained drug-detection dog can provide probable
cause to search. Whether such an alert does so in a particular
case will depend on an individualized assessment of the total-
ity of the circumstances known to police that bear on the
dog's reliability in detecting drugs. Those circumstances usu-
ally will include, but are not limited to, the dog's and its han-
dler's training, certification, and performance in the field.
The state has the burden, upon a proper challenge by the
defendant, to demonstrate that the dog's alert was suffi-
ciently reliable to provide probable cause to search. Foster,
350 Or at 170, 177-78. 2
In this case, the state relied exclusively on the testi-
mony of Stakoe to describe how Babe had been certified and
trained in drug detection, and how Stakoe had learned to
work with Babe as her handler. The record made through
Stokoe's examination by the state, and cross-examination by
defendant, is sparse.
Babe was selected for training as a drug-detection
dog by a private business or organization, "Code Three
Canine." Stakoe had not yet purchased Babe, and had no
involvement in her training by Code Three Canine. He did
not describe the nature or details of that training. Stakoe
stated only that Babe had been trained to detect the odors of
four controlled substances: marijuana, methamphetamine,
cocaine, and heroin.
2 The fact that a particular dog alert in a given case is not sufficiently reliable
to provide probable cause does not necessarily foreclose any reliance on or consid-
eration of the alert. Assuming that the state can establish that the alert has some
degree of reliability, the alert still may be considered along with other information
in the totality of the circumstances analysis of whether officers searched with prob-
able cause. See, e.g., State u. Smith, 327 Or 366, 263 P2d 642 (1998) (drug-detection
dog's alert to defendant's storage facility one of several pieces of information set out
in application for search warrant); see generally State u. Coffey, 309 Or 342, 34 7 n 7,
727 P2d 424 (1990) (significant doubts about the validity and rate of error in poly-
graph examinations preclude those examinations from being the sole basis for a
probable cause determination, but examiner's opinion provides sufficient reliabil-
ity to be considered along with other reliable information in the assessment of
probable cause). In this case, however, the only information on which police relied
to search defendant's vehicle was the dog's alert. The state therefore had the bur-
den to establish that the dog's alert in this case was a sufficient basis, without
more, to establish probable cause to search.

Cite as 350 Or 153 (2011) 	157
After he purchased Babe, Stokoe went through a
two-week training program with an instructor from Code
Three Canine. The purpose of that instruction was for Stokoe
to learn how to work with Babe and how to train her to main-
tain and improve her skills. That two-week program entailed
114 hours of training. Stokoe was not asked to describe the
details of that training, either in terms of what he was taught
about handling Babe to maximize her accuracy and reliabil-
ity, or what he learned through that training about Babe's
reliability. He testified only that he and Babe, to complete the
training successfully, had to "meet the standards of the
trainer at the time."
After completing that training, Stokoe trained with
Babe for a period of about six months. He estimated that,
during that time, he trained for an additional 300 or more
hours. He did not work with any formal drug-detection dog
trainers. With the exception of about 10 days on which other
dog-handler officers or members of his family assisted him,
Stokoe worked with Babe entirely on his own.
Stokoe described his ongoing training with Babe in
general terms only. In his training, he rewarded Babe for an
alert by playing with her using a rolled-up cloth. He said that
he used "training aids" to teach Babe to find drugs. Those
training aids involved use of "a sample of the drug" that
ranged in amounts from "residual odors up to a pound."
Stokoe also used "blanks," which consisted of empty plastic
containers, to ensure that Babe alerted to drugs and not the
odor of the plastic containers that he used to hide training
aides. 	The 	blanks 	that 	Stokoe 	used 	included 	"blank"
vehicles-that is, vehicles that Stokoe believed would have
no odor-so that he could be sure that Babe was not alerting
to vehicles "just because she's used to alerting to vehicles."
And Stokoe described using various foods to make sure that
Babe did not alert to the scent of food rather than to that of
drugs. Although Stokoe kept records of his training using
drug 	samples, 	he 	kept 	no 	records 	of Babe's responses
on blank containers and vehicles. He trained with Babe
"wherever we [could] find a place to train at."
After that self-directed training period, Stokoe and
Babe attended a four-day (32 hour) training session with the

158 	State v. Helzer
Oregon Police Canine Association (OPCA), which is a private
organization, not a state agency. Stokoe, who was not asked
what the OPCA training session involved, gave no details or
even a generalized description of it. He testified only that, at
the conclusion of the session, he and Babe were certified by
OPCA. The state did not establish in this case what stan-
dards OPCA applied to Stokoe and Babe for that certifica-
tion. The state supplemented Stokoe's testimony with docu-
mentation of alerts in the field over a several-month period.
Stokoe kept no records, however, of deployments in which
Babe did not alert.
With that description of the record made at the
motion to suppress, we turn back to whether, in this particu-
lar case, the state carried its burden to establish that Babe's
alert was sufficiently reliable to establish probable cause to
search. In Foster, we explained that the performance of a
drug-detection dog and its handler under controlled circum-
stances, during formal training and certification, is especially
meaningful in assessing the reliability of the individual dog's
alert in a particular case. Foster, 350 Or at 177-78. To assess
the dog's and handler's abilities based on their training and
certification, however, more is needed than the fact that the
two have received certification by a private organization. The
record must provide information about the training that the
dog and handler underwent, and the standards they had to
meet to achieve certification.
The state in this case, however, established little
beyond the bare fact that Babe and Stokoe had been certified
by OPCA. A comparison to the record made in Foster reveals
the voids. See id. at 164-68 (describing record). The drug-
detection dog and its handler in Foster went through their
initial formal training with OPCA and continued training
with the assistance of an OPCA "master trainer." The record
in Foster is significantly more developed on the particular
training they received initially, as well as their continued
training afterwards. The record is also significantly more
developed on the OPCA certification test that they took, and
the standards to which they were held in order to pass it. See
id. (describing same). No similar record was made in this
case. In particular, the nature of Babe's initial training by

Cite as 350 Or 153 (2011) 	159
Code Three Canine-the kind of training, its length, and the
standards used-was not established by the state. Likewise,
the record provides no description of or details about Stokoe
and Babe's team training with Code Three Canine after
Stokoe purchased Babe. Unlike in Foster, the record does not
reveal what training Stokoe received to avoid handler cues or
other errors that can cause a dog to alert falsely. Stokoe tes-
tified vaguely to his use of blanks and food distractions in his
own training, but he provided no information beyond that to
explain how his training builds accuracy and reliability in
both Babe's abilities and his handling ofBabe. 3
To be sure, the state also provided some documen-
tation of Babe's performance in the field. But as we explained
in Foster, although a drug-detection dog's field performance
is pertinent to assessing that dog's reliability, "more telling is
the dog's performance in controlled circumstances, such as
those involved in testing for certification, where the dog's
ability to find and signal the presence of drugs can be accu-
rately gauged." Foster, 350 Or at 177-78. In this case, as we
have described, the record provides no information about
Babe's training through Code Three Canine and only vague
information about some, and not all, of Stokoe's training with
Babe. Beyond that, the record establishes only the bare fact
that Babe and Stokoe were certified by the OPCA, a private
organization whose training methods and standards for cer-
tifying Babe and Stokoe were not established on this record.
Without more information about Babe's training and certifi-
cation, the field performance records that the state produced
3 Some of what Stokoe described-in particular, his reference to the use of
"residual odors" to train Babe-potentially could detract from Babe's reliability. As
we explain in Foster, a "residual odor" describes a drug odor that is present even
when the drug that produced the odor is not. It can occur because the odor persists
after the drug has been consumed or removed, or because the odor is clinging to an
object or a person who had contact with drugs in another location. Id. at 167. We
conclude in Foster that the fact that drug-detection dogs are capable of smelling
residual odors is not, in and of itself, a basis on which to conclude that a dog's alert
does not provide probable cause. The fact-if it were established-that a dog had
been affirmatively and deliberately trained to alert to residual odors, however,
could be more problematic. In this case, Stokoe at other points referred to residual
"amounts" of drugs, not residual "odors." His reference to residual odors may have
been an inadvertent choice of terms. In all events, regardless ofStokoe's testimony
on that point, the record here inadequately establishes the quality of Stokoe's and
Babe's training and certification.

160 	State v. Helzer
in this case are insufficient to establish that Babe was
sufficiently reliable to provide probable cause to search
defendant's car. 4
Because of those deficiencies in the record, we con-
clude that the state did not carry its burden to show that
Babe's alert in this case was sufficiently reliable to provide
Stakoe with probable cause to search. The trial court there-
fore erred in denying defendant's motion to suppress.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
4 Worth noting in that regard is that the trial court expressly found that Babe
and Stokoe were "certified," but made no other pertinent findings and, in particu-
lar, did not make any express findings as to what conclusions the court drew (if
any) from Stokoe's records of Babe's field performance records. Based on our review
of those records, the conclusions to be drawn from them, even viewing them in the
light most favorable to the trial court's ruling, are difficult to assess on the limited
record before us (e.g., Stokoe's testimony explaining them was very limited; no
records were kept of circumstances in which Babe did not alert when deployed;
some records do not establish whether drugs found after Babe alerted were in a
place consistent with where Babe alerted; some of the records are for deployments
after the date of the search in this case). Although field performance records in gen-
eral are pertinent to the inquiry, whether they in fact add to or detract from the reli-
ability assessment in any particular case may depend on whether their significance
is sufficiently developed through testimony at the hearing or is self-evident.