Scott Sandlin | Wednesday, September 29, 2010

Just how good is a drug dog's nose?

The answer could be a factor in a judge's decision on whether law enforcement went beyond its authorized scope in executing a pair of search warrants in the South Valley. The searches led to the arrest and indictment of a father and son - and to the discovery of more than $400,000 buried up to 8 feet underground.

Jerry L. Padilla Jr. and his son, Jerry L. Padilla III, were indicted on drug conspiracy charges in December after searches of Padilla III's home and business. The searches, part of an investigation into the so-called "Los Padillas" gang, yielded $441,008 in cash that became part of a forfeiture provision in the indictment.

But the defense says the search, which was authorized by a federal magistrate judge, went so far beyond its original scope as to constitute an illegal intrusion.

Law enforcement did not find the quantities of drugs they suspected were buried on the property, but they did find currency. Lots of it. It had been placed in segments of PVC piping and sealed shut with tape on the ends and grains of rice on the inside to forestall moisture from collecting.

The Padillas' trial was to have started Monday before U.S. District Judge James O. Browning but has been rescheduled for November. The indictment charges possession with intent to distribute over 5 kilos of cocaine. The younger Padilla faces 20 years if convicted. His father, who has two prior felony convictions, faces life and/or an $8 million fine.

Padilla III's attorney Robert Gorence claims law enforcement turned his client's property into a "lunar landscape" when SWAT teams from the Albuquerque Police Department and the FBI and a State Police tactical team descended on the two locations at 6:40 a.m. Dec. 3.

They brought drug-sniffing dogs Rodi and Kyber and two backhoes.

Until law enforcement went in with the dogs and heavy equipment, they had found few drugs and little cash, Gorence noted.

"The affidavit did not contain sufficient facts to support a full-scale excavation of (Padilla III's) back yard," he said in the motion. The defense notes only one of four confidential sources made any reference to buried drugs: The source claimed that when he arrived to buy cocaine, one of the Padillas left the house with a shovel and returned a short time later with wrapped bricks that had dirt on them.

An FBI surveillance team also saw a tractor digging a hole next to a shed in the yard Nov. 9.

Gorence contends authorities needed a second warrant to authorize a "law enforcement 'Klondike Gold rush' subterranean dig," according to his motion to suppress evidence.

"In essence, the dogs were a pretext for other information that law enforcement attempted to protect," he said.

He also contends dogs can't sniff out odors 8 feet underground, and "that the backhoes did not dig solely in the area where the dogs allegedly alerted."

During the searches, the backhoes excavated six holes, some of which were 8 feet deep, and created a 70-footlong trench, court documents say. The PVC capsules were revealed after about an hour of digging and were broken open without obtaining a separate warrant.

The FBI had conducted 16 days of surveillance in November, during which agents noted "that it did not appear at any time that any legitimate business activity was occurring at either location," the U.S. Attorney's Office said in its response. Agents did see brief comings and goings that suggested drug activity.

Assistant U.S. Attorney Joel Meyers countered that under the defense logic, "The government would need six separate warrants to properly search the contents of a Matryoshka doll" - the wooden Russian nesting dolls that are one within another within another.

Meyers contends that using the dogs was a benefit to Padilla III. If the dogs hadn't "keyed" on specific locations, he said, "the agents would have likely dug up defendant's entire yard."

Officers dug into the unimproved dirt lot behind Padilla III's house because confidential sources and aerial surveillance led them to believe "that items listed in the warrant may have been hidden beneath the surface. ... The only way to obtain this evidence was to dig into the ground." The dogs just made the search more specific, Meyers argued.