final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Mallory D.
K. Chase of Chase Law Florida, P.A., St. Petersburg, for
Jo Bondi, Attorney General, R. Quentin Humphrey, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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.
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.
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).
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 ...