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Johnson v. State

Florida Court of Appeals, First District

June 18, 2018

Charles Johnson, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Mallory D. Cooper, Judge.

          Dane K. Chase of Chase Law Florida, P.A., St. Petersburg, for Appellant.

          Pamela Jo Bondi, Attorney General, R. Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          B.L.Thomas, C.J.

         In this collateral appeal, we address whether Appellant's counsel provided constitutionally ineffective assistance of counsel by failing to object to testimony by a law enforcement officer who specialized in training and utilized dogs to track suspects and detect odors. The officer used his dog "Diesel" to track down fleeing suspects involved in a home burglary.

         At trial, Officer Michael Michener testified regarding Diesel's ability to detect odors from someone in an anxious mental or physical state, running from police or otherwise in a state of distress. He had worked with the Jacksonville Sheriff's Office twenty-two years, with sixteen years as a K-9 handler. Officer Michener testified that he selected Diesel when the dog was eleven months old; he personally trained him and had been working with Diesel for nearly two years. Officer Michener testified that Diesel was an explosive-detection dog, but also performed patrol functions, including tracking people based on odor.

         Officer Michener testified that he and Diesel were dispatched to the scene of a burglary where people were fleeing from police. When he arrived at the neighborhood, Diesel indicated that he was sensing human body odor consistent with the nervousness or anxiety of someone fleeing. The officer testified that animals react depending on the human odor they are searching for; people who are fleeing give off a different type of odor than sedentary people, and based on his experience with Diesel and other dogs, he can tell when Diesel is indicating someone has been fleeing. He gave Diesel a command to locate human odor. Diesel led Officer Michener to a private fence, began pulling the officer very strongly, and eventually led him to the backyard of a residence and a shed, where the officer observed three people hiding. Diesel made contact with one of the people in the shed, and all three were eventually detained, including Appellant.

         Appellant was convicted of burglary of a dwelling and sentenced to thirty years' imprisonment. This court affirmed the judgment and sentence without opinion. Johnson v. State, 68 So.3d 238 (Fla. 1st DCA 2011) (table).

         The relevant trial testimony between the prosecutor and Officer Michener, to which Appellant's trial counsel did not object, was as follows:

Q: Well, let me take you back then to October, that particular day on the 29th. Did you do a search with Diesel?
A: Yes, ma'am, I did.
Q: And what method did you actually use that day?
A: Because of the nature of the information I was obtaining through the police radio prior to getting there, this was what I would consider to be a hot search, meaning I actively had people that were fleeing from the police, I had bodies that were going through neighborhoods. So the most efficient thing to work towards is the dog's abilities to capitalize on that, is what we call an area search. To break that down . . . we went with what we call a yard search which is a systematic search of each yard as we go.
Q: And when you're doing that systemic search with Diesel, what is he picking up on that will help him ...

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