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Harris v. State

Court of Appeals of Georgia, First Division

June 20, 2017

HARRIS
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Bruce Ervin Harris was indicted for trafficking marijuana and possession of marijuana with intent to distribute at Atlanta Hartsfield Jackson International Airport. The trial court granted the State's motion to quash Harris's subpoena for all records and documents pertaining to the canine and its handler involved in the detection of drugs in Harris's luggage. The trial court certified its order for immediate review, and this Court granted Harris' application for an interlocutory appeal of the trial court's order. This appeal ensued.

         We review the grant of a motion to quash a subpoena under the abuse of discretion standard of review. Bazemore v. State, 244 Ga.App. 460, 463-464 (2) (535 S.E.2d 830) (2000). So viewed, the record reveals that Homeland Security Investigations officers received a tip about the flight Harris was on originating from San Francisco. When he arrived at Hartsfield-Jackson International Airport, the luggage from Harris's flight was removed by agents and lined up in two rows. A special agent and his trained canine, "PacMan, " walked along the rows of luggage and PacMan alerted at Harris' bag. Afterward, all of the bags were taken to baggage claims, and when Harris claimed his bags, agents made contact with him. During an ensuing interview, Harris consented to a search of his bags. Officers recovered approximately 40 pounds of marijuana from Harris' bag.

         Harris was indicted and charged with trafficking marijuana and possession with intent to distribute marijuana on October 14, 2015. He filed a preliminary motion to suppress on December 4, 2015, and a particularized amended motion to suppress on December 10, 2015, which he later amended and filed on December 29, 2015. The motions were all filed under the 2015 indictment number.

         On January 6, 2016, the State re-indicted the case, and on January 20, 2016, Harris filed a motion to suppress, again under the 2015 indictment number, in which he argued, among other things, that the drug dog was unreliable.[1] On February 2, 2016, Harris filed a witness subpoena seeking certain information about the canine and the handler.[2] On February 15, 2016, the State filed a motion to quash the subpoena on the grounds that it was unreasonable and oppressive, in violation of OCGA § 24-13-23, and that the material sought was not relevant, as defined in OCGA § 24-4-401.

         On February 25, 2016, a hearing was held on the motion to quash, but it was continued to a later date to allow Harris to re-file his motion to suppress after the trial court noted that the only pending motion to suppress had been filed under the 2015 indictment number. The parties agreed that Harris would be permitted to file a motion to suppress identical in "form and substance" to the motion to suppress "inadvertently" filed under the 2015 indictment number. On February 26, 2016, Harris re-filed his motion to suppress under the 2016 indictment number. In addition to asserting the lack of probable cause for the seizure of his bags, lack of consent, and that the warrantless seizure of the bag was an illegal search and seizure, Harris also maintained that "the particular dog used was unreliable."

         On March 24, 2016, the trial court held a hearing on the State's motion to quash, at which the State argued, among other things, that per Florida v. Harris, 568 U.S. 237 (133 S.Ct. 1050, 185 L.Ed.2d 61) (2013) and other legal authority, documents related to the dog's training are not relevant if a dog is certified on the day in question, and that the subpoena was overly broad and burdensome.[3] The State had previously provided Harris with five documents - the handler's training completion certificate, PacMan's training completion certificate, a certificate from the National Narcotic Detector Dog Association ("NNDDA") certifying that PacMan and the handler had completed NNDDA certification, and the cover of the NNDDA certification book showing the certification numbers. It argued that this documentation met the Florida v. Harris criteria for establishing the dog's reliability, and that reliability "goes to the alert and whether that provides probable cause. . . . Reliability does not go to the training." The State further asserted that Harris challenged the dog's reliability, not its training, in his motion to suppress, that it had provided all relevant materials establishing reliability through the certification documents, and "[a]nything else isn't [relevant to whether the dog was] reliable."

         Harris agreed with the State that under Florida v. Harris there is a presumption that "evidence of certification if unchallenged is enough." but that the case further establishes that the presumption is rebuttable. He asserted that he should be permitted to challenge the dog's reliability not only cross-examination, but also "based on the underlying records of the dog and the handler. That's the basis for the subpoena." Harris maintained that "as used in a context of a motion to suppress or a suppression hearing the subpoena would be used to challenge the reliability of the dog and the dog handler."

         At the conclusion of the hearing, the trial court orally ruled as follows:

After hearing the argument of the parties and examining the subpoena sought by [Harris], first of all, looking at the motion to suppress and what is sought in the motion to suppress, the Court grants the motion to quash by the State, finding that the items that are sought by the subpoena duces tecum are not relevant. Also, that the requests are over broad, they are unreasonably burdensome and oppressive."

         Subsequently, the trial court entered a written order granting the State's motion to quash.

         Following our review, we vacate the trial court's grant of the State's motion to quash and remand for further proceedings consistent with this opinion.

When a motion to quash a subpoena is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant. Where the evidence sought in a subpoena duces tecum is demonstrably relevant and material to the ...

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