To be scientific Mary, I’m emotionally biased, and Bloodhounds may well be in a category of their own. They’re great dogs, very sweet, but I’m a Basset freak. To me they are anatomical fashion statements. I took care of some Bloodhounds for a while, but I didn’t do any serious tracking or training. They “seem” similar–to me.

There is a funny case in the old 5th Circuit 2 years before the Eleventh split from it in 1981 that reminds me of the goofey DOJ–FBI anD US attorneys were in all probability the leakers.

The argument before the panel centered around a bloodhound, and the trial court was reversed and the good ole boy was acquitted. (Rare as hen’s teeth in a blood hound).

UNITED STATES V ROZEN 600 F. 2d 494 (CA 5, 1979)

SelectedCases Federal Court Where Deploying Doggies as Agents

Ed Rozen was convicted of possession of marijuana with intent to distribute in the trial court in the Southern District of Georgia.

Local law enforcement in South Georgia had people and their trucks under surveillance. They followed them to a motel in Savannah, and then to a creek area accessed by boat and lost the guys. They then spotted one of the trucks and stopped it and it had 1460 pounds in bales of marijuana in the back. They later found the other truck with no one in it in the woods, and it contained 1720 pounds of marijuana.

They promptly summoned Clyde, who was a well known bloodhound cared for by one of the prisons in Georgia. Clyde circled the truck with grass and no occupant, and followed a scent across a creek, during which time two officers with Clyde had to swim the creek to follow Clyde.

After about 4 hours, Clyde found one of the men and the defendant asleep under a tree. The controversy evolved over which man’s scent Clyde was following or whether Clyde was following two scents at once.

That was the government’s case; the only evidence they had on one Ed Rozen was that Clyde found him asleep under a tree after circling the truck.

Appellant’s first, last and only appearance in the wide spectrum of activities was when he was found and arrested. Until that moment no one identified him as in the company of either of his brothers…. No marijuana was found on him, nor any visible evidence of burlap that might have come from coverings of the bales.

We do not speculate whether the motion for judgment of acquittal would have to be granted if there had been sufficient evidence tending to show that appellant had been in the GMC. 2 The only evidence even tending to show appellant’s presence in the truck was Clyde’s pursuit of a scent from near the truck to the sleeping brothers. The only connecting factor is Clyde’s nose, and no one can do any more than guess whether Clyde was following the scent of David, the scent of appellant, or the scent of both. In this respect the case is similar to U. S. v. Reyess, 595 F.2d 275 (CA5, 1979).

The government would like us to hold that the jury might have inferred that one or more of the defendants pushed bales of marijuana out of the plane and smeared the cabin with pineapple, but there was no direct testimony that Any of them did so, much less that All of them participated. Each of the defendants was entitled to have his guilt or innocence determined as an individual; the government failed to prove beyond a reasonable doubt that each defendant or any particular defendant participated in any way in the importation scheme beyond being present in the aircraft. 13
Id., at p. 281. In like manner, a jury could not infer that the scent from the vicinity of the truck to the tree where appellant and his brother were sleeping was the scent of appellant, or the scent of both men, and that it was not the scent of only David. 14
In addition, Clyde did not pick up the scent from the interior of the truck, or from any item removed from the truck, or even from its exterior. He “cut a tight circle” around the truck, found a scent and followed it. No doubt this is acceptable procedure for tracking down an escapee or fugitive, but it is not enough to support the chain of inferences that the government necessarily would have had the jury draw in this case when the motion for judgment of acquittal was made and denied, and that are argued to us on appeal i. e., that it may be inferred that appellant was a conspirator because he was aware of the presence of the marijuana in the camper body of the truck, and it may be inferred that he was aware because he had been in the truck. A scent picked up at some unspecified point near the truck, even if identified as the scent of appellant, would not permit the inference that appellant had been inside the truck or in any other position where he could see the bales of marijuana within the camper body. 15
The test of sufficiency is whether the evidence, viewed as we have viewed it in the light most favorable to the government, could be accepted by a reasonably-minded jury as adequate to support a conclusion that appellant was guilty of conspiracy beyond reasonable doubt. U. S. v. Warner, 441 F.2d 821 (CA5), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); U. S. v. Prout, 526 F.2d 380 (CA5, 1976). The evidence does not meet this standard, with respect to whether appellant knew of the conspiracy and, with that knowledge, voluntarily joined in it. 3 The government’s effort to win by a nose does not succeed. Obviously, appellant’s presence was highly suspicious, but this is not a substitute for evidence sufficient to prove beyond reasonable doubt. 16
Although it is certainly possible maybe even probable that Littrell was involved in the conspiracy, such speculation does not constitute proof beyond a reasonable doubt, and juries “must not be permitted to convict on suspicion and innuendo.” 17
Littrell, supra, 574 F.2d at 833. If appellant was not a participant in the conspiracy there is no evidence of possession. 18

If nothing else can be salvaged from this case, testimony concerning Clyde deserves to be perpetuated. After the dog handler described Clyde’s experience and skill this ensued: 19

MR. MC ABEE (prosecutor): Your Honor, at this time, I would like to submit to the Court that the testimony concerning Clyde, the bloodhound, entitles him to be considered as an expert in this case. And that the testimony of Mr. Powell concerning Clyde will be used in that light. 20
MR. ENTIN (defense counsel): Your Honor, I would have to object. I think I ought to have the opportunity to confront and cross examine Clyde. 21
NOTE: (BRIEF COLLOQUY.) 22
MR. ENTIN: Your Honor, I think that the witness can testify as to what Clyde did, as to making him an expert in terms of putting him into the mind of an animal, I don’t think we can do that. I think he can testify that he took the dog and the dog led him somewhere, but as to anything else, I really don’t think that that makes him an expert. 23
THE COURT: The dog or the man? 24
MR. ENTIN: The dog was an expert, but the man was only carrying his leash. It’s an unusual situation. 25
THE COURT: Well, I think if you give a full background of the dog’s training and the dog’s ability to smell . . . 26
MR. MC ABEE: . . . It has happened in the state of Georgia on several occasions where a bloodhound such as Clyde have (sic) been qualified in State Court, sir. 27
MR. ENTIN: Your Honor, I’m not saying we can’t qualify the dog, we can’t qualify the witness. 28
MR. MC ABEE: Well, in this particular instance, Your Honor, it’s unlikely, Clyde has since died, I believe, so we don’t have Clyde to bring in before the Court. 29
THE COURT: I’ll let him testify. 30
MR. ENTIN: What about the application of the dead man’s rule? 31
THE COURT: We don’t have communication between a dead dog so I’m going to let it in. 32
Though successful in this appeal, counsel for appellant undoubtedly will always regret that in this colloquy, now enshrined in the official reports, he overlooked the confrontation clause of the Constitution. 33
The conviction is REVERSED with directions to enter a judgment of acquittal.