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State v. Wieting

March 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
DANIEL P. WIETING, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-04952-1. Date filed: 11/20/95.

Petition for Review Denied September 3, 1997,

PER CURIAM. Daniel Wieting chose to flee on foot after robbing a convenience store in Auburn. As it turned out, the Auburn Police Department's K-9 unit--Officer Ryan Worthington and his dog Ax--was just a few blocks away. When the cashier called 911, Worthington and Ax were first to the scene, and they soon caught up with Wieting. Convicted by a jury on charges of first degree robbery, Wieting appeals, raising as his sole issue the adequacy of the foundation for introducing dog track evidence.

FACTS

Worthington and Ax were trained together. The training included 300 hours of initial basic training as well as ongoing monthly training averaging 20 hours per month. They were initially trained by a person who completed an instructor's course for the training of German border guards in the use of dogs. At the end of the initial training, Worthington and Ax passed a proficiency test.

The ongoing training includes obedience, human tracking, area searching, building searching, and evidence searching. Training for human tracking includes use of decoys and scent discrimination so that the dog will not be distracted by new, intervening scents while tracking.

Worthington testified that Ax has made 30 to 35 captures in the 50 or 75 real cases in which he has been applied.

On this particular evening the air was warm and moist and therefore good for tracking. Ax eagerly alerted to a scent outside the store where the cashier said he last saw the robber. Ax tracked the scent in the air, meaning that the scent was recent and therefore still lingering in the air. At one point Worthington had to lift the dog over three consecutive fences as Ax indicated that the scent went through an area best described as a junkyard.

After that, as they were crossing into a residential backyard, Worthington received a radio communication that a citizen reported sighting someone resembling the suspect's description from the cashier. Ax was, in the words of the State, "pushed ahead" by Worthington, meaning that Worthington removed Ax to a spot believed to be further ahead on the same track. Worthington testified that the dog's behavior indicated that he was still following the same scent as before, and that the dog would have been hesitant if the scent were new.

At another point, Worthington took Ax around a fence (rather than over the fence) to save time after he sighted a suspect in the neighboring yard. Ax again showed no hesitancy and continued to react as though he was on the same scent. Ax quickly apprehended the suspect.

Discussion

The parties agree that the foundational requirements for dog-tracking evidence are found in our Supreme Court's opinion in State v. Loucks, 98 Wash. 2d 563, 566, 656 P.2d 480 (1983). After a hearing out of the presence of the jury, the trial court determined that these foundational requirements were met and entered written findings as to each element. We discuss each foundational element in order.

First, the State must show that "the handler was qualified by training and experience to use the dog". Loucks, 98 Wash. 2d at 566. Evidence showed that Worthington had 300 hours of initial training with an individual experienced in training border patrol dogs for human tracking. Moreover, Worthington testified that he and Ax do four hours per week of continual training. Worthington testified that he and Ax passed a proficiency test at the end of the 300-hour course.

Wieting argues that a lack of detail provided by Worthington concerning this test renders the foundation inadequate. Wieting also argues that the rigged nature of the training exercises are make the training a questionable indicator of the dog's abilities. Finally, he argues that the State did not show that follow-up training was done by a qualified person, that it involved tracking, or that it was successful.

We believe these issues go more to the weight of the foundation evidence than to the sufficiency. They were good topics for cross-examination and good topics for oral argument to the trial Judge. Nevertheless, the evidence elicited was adequate to establish that Worthington was qualified by training and experience in human tracking. Wieting's arguments may indicate how the State could ...


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