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Citrus drug dog's missing records throw a wrench into two cases

A judge tosses out evidence because performance records showing the track record of a drug-sniffing dog have disappeared.

By COLLEEN JENKINS
Published July 30, 2004

INVERNESS - A Citrus County judge has tossed out more evidence against alleged drug offenders because of missing performance records for a law enforcement drug dog.

On Wednesday, Circuit Judge Ric A. Howard granted an attorney's motions to suppress evidence in two cases involving Thor, a German shepherd that helps sniff out drugs for the Citrus County Sheriff's Office.

This isn't Thor's first trouble in Citrus courts this year.

The problems started in April, when another attorney convinced a county court judge that Thor's reliability in alerting deputies to search a car or a person for drugs couldn't be proved because the dog's "track record" had disappeared.

A paper trail is supposed to be kept by a dog's handler to record how the animal performs on the job. But Thor's previous handler, Deputy George Phelps, was fired last year after he was arrested on charges of domestic battery and child neglect.

The child neglect charge has been dropped, and the battery charge was reduced to a misdemeanor.

Sheriff's officials think Phelps kept records for Thor in his patrol car. The car immediately was seized upon his departure, but the records got lost in the shuffle.

"Where they went from there, nobody knows," defense attorney Charles Vaughn said Thursday.

On Wednesday, Vaughn argued that the evidence against Jeffrey Sean Hamilton, charged with possession of cocaine, and Gary Lee Wilson, charged with possession of methamphetamine, cannabis and drug paraphernalia, shouldn't be admissible to a jury without Thor's performance records.

He based his claim on Matheson vs. State, an appellate ruling that arose last summer from a Hillsborough County case. The 2nd District Court of Appeal determined that, among other things, a dog's track record leading up to a search had to be available to prove probable cause.

After hearing Vaughn's argument, the judge threw out the evidence. Vaughn said the decision bodes well for his clients.

"If (the state) can't bring it into evidence, then they can't prove their case," he said.

Assistant State Attorney Richard Buxman has 10 days to file an appeal but said Thursday he had not decided whether he would. The State Attorney's Office in Inverness already has appealed County Judge Mark Yerman's decision to throw out similar evidence in April.

Local lawyers estimated that at least six to a dozen more cases involving Phelps and Thor could be thrown out.

Colleen Jenkins can be reached at 352 860-7303 or cjenkins@sptimes.com

[Last modified July 29, 2004, 23:57:19]