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Car scratch and hair sample planted

Car scratch and hair sample planted


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Car scratch and hair sample planted in the Pontiac" and was filed by the prosecutor with "the `OCS' search warrant report" on October 30, 1987. The report contained the drawing of a hair attached to a drawing of the car scratched by the dog. It is unclear whether the copy was later sent to the state police and the county sheriff as had been previously requested. The record is silent concerning whether the copy was filed with the proper authorities. In March of 1988, in response to a civil suit arising out of the dog search, the state police submitted an affidavit to the district attorney's office describing the dog search. The affidavit noted that several hairs had been removed from the car's trunk and carpet by the dog and that their presumptive identification as Perry's was confirmed by the analysis of blood and saliva performed by Dr. Sausville. The affidavit did not indicate that the analysis of the hairs and saliva had been performed on the day of the search and was not signed until after trial, but prior to sentencing.

Perry's challenge to the search and arrest of September 28, 1987, the night of the incident and the very next morning, was made in the course of his motion to suppress. The district attorney's office filed a motion in limine to preclude the defense from arguing at trial that the police had illegally searched Perry's car on September 28, 1987, the morning following the incident. The district attorney argued that any evidence concerning the search was barred by the law of the case, including the day-of-the-search analysis of the hairs and saliva by Dr. Sausville. The district court sustained the prosecutor's motion.

As already noted, the trial court on the day of sentencing had denied Perry's motion to suppress, the prosecution's cross-appeal, and the defendant's appeal. This court had denied review. Later, on May 23, 1989, the Court of Appeals reversed the district court's denial of the defendant's motion to suppress and remanded the case for further proceedings. *824 State v. Perry, 540 So.2d 1205 (Fla. 4th DCA 1989).

On remand, the defendant filed an amended motion to suppress. The motion argued that the dog search was illegal because the sheriff's office did not have a written policy in place requiring prior review and approval of all dog searches. The motion also stated that the "legal technician" for the sheriff's office was an unlicensed private individual who had violated Florida's "Quality Assurance Standards for Corrections Services." The amended motion also asserted that the state police had a statutory duty to present "evidence obtained by the state" to the district attorney's office, and that the "so-called `report' made by the state police of their dog sniffing of the alleged scent of cocaine and of hairs and saliva analysis of the alleged victim," was not so presented to the prosecutor's office. The defendant's amended motion alleged that any evidence concerning the dog search and the subsequent search of Perry's car was inadmissible as the fruit of an illegal search and seizure. After a hearing, the trial court denied the motion and ordered the admissibility of the dog search evidence.

In State v. McClellan, 544 So.2d 429 (Fla. 5th DCA 1989), the court stated:

On remand, the trial court is to conduct a new suppression hearing in light of our opinion. The ruling from this court is final. However, as we indicated above, the trial court may again reconsider its decision based on evidence presented at the new hearing.

Id. at 432.

On remand, the district court heard arguments of the parties, heard testimony, and took the case under advisement. The court entered a written order on June 26, 1989, denying Perry


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