           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2    United States v. Boxley                    No. 02-6446
        ELECTRONIC CITATION: 2004 FED App. 0189P (6th Cir.)
                    File Name: 04a0189p.06                            ASSISTANT UNITED STATES ATTORNEY, Memphis,
                                                                      Tennessee, for Appellee. ON BRIEF: David W. Camp,
                                                                      PETTIGREW & CAMP, Jackson, Tennessee, for Appellant.
UNITED STATES COURT OF APPEALS                                        Christopher E. Cotten, ASSISTANT UNITED STATES
                                                                      ATTORNEY, Memphis, Tennessee, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                    _________________

 UNITED STATES OF AMERICA , X                                                                OPINION
             Plaintiff-Appellee, -                                                       _________________
                                  -
                                  -   No. 02-6446                        BOYCE F. MARTIN, JR., Circuit Judge. Reginald Boxley
            v.                    -                                   appeals his conviction of possession of sixty grams of crack
                                   >                                  cocaine with the intent to distribute under 21 U.S.C.
                                  ,                                   § 841(a)(1). Based on the reasoning of the district court, we
 REGINALD BOXLEY,                 -
         Defendant-Appellant. -                                       affirm the judgment. We write only to elaborate on two
                                                                      issues: (1) the qualification of testimony regarding canine
                                 N                                    searches, and (2) the operation of the presumption under the
      Appeal from the United States District Court                    doctrine of spoliation.
    for the Western District of Tennessee at Jackson.
  No. 98-10045—James D. Todd, Chief District Judge.                       I. Testimony on Canine Searches: Qualifications

                     Argued: April 27, 2004                              On the night he was arrested in December of 1997, Boxley
                                                                      was subjected to a canine search for drugs by a drug-detection
               Decided and Filed: June 22, 2004                       dog, Cuffs. Though Cuffs alerted to Boxley’s pant pocket,
                                                                      the police found no drugs in the pocket or on Boxley’s body.
 Before: MARTIN and ROGERS, Circuit Judges; BELL,                     The police did, however, find drugs nearby and, based in part
               Chief District Judge.*                                 on Cuffs’s alert, arrested Boxley. At Boxley’s trial for
                                                                      possession of cocaine, the prosecution submitted testimonial
                      _________________                               evidence by Officer Anderson, Cuffs’s handler, that drug
                                                                      dogs alert to aromas of drugs, not drugs themselves, and that
                           COUNSEL                                    Cuffs’s alert to Boxley’s pocket demonstrates that Boxley
                                                                      carried an aroma of drugs. This testimony was intended to
ARGUED: David W. Camp, PETTIGREW & CAMP,                              link Boxley to the drugs that were found in his vicinity that
Jackson, Tennessee, for Appellant. Christopher E. Cotten,             night.
                                                                        On cross-examination, Boxley asked Officer Anderson
                                                                      whether he had any documentation, such as “search find
    *
     The Honorable Robert Holmes Bell, Chief United States District   sheets,” to verify the dog’s prior history and accuracy.
Judge for the Western District of Michigan, sitting by designation.

                                1
No. 02-6446                      United States v. Boxley      3    4      United States v. Boxley                      No. 02-6446

Anderson stated that the department did not keep accuracy            We also determined that it is not necessary for the
records for drug dogs, but that Cuffs was certified as a drug      government to show that the dog is accurate one hundred
dog after a two-month training program. Anderson also              percent of the time, because “a very low percentage of false
explained that Cuffs’s record on the department’s computer         positives is not necessarily fatal to a finding that a drug
database was deleted after Cuffs passed away, more than two        detection dog is properly trained and certified.” Id. In Diaz,
years before Boxley’s trial. When asked whether Cuffs had          we concluded:
alerted in the past to a finding of no drugs, as he did in this
case, Anderson acknowledged that Cuffs had done so one                 When the evidence presented, whether testimony from
other time in his prior sixty to seventy searches. Anderson            the dog’s trainer or records of the dog’s training,
also stated that no dog can be “one hundred percent accurate.”         establishes that the dog is generally certified as a drug
On appeal, Boxley claimed that the district court abused its           detection dog, any other evidence, including the
discretion in allowing Anderson’s testimony because Cuffs’s            testimony of other experts, that may detract from the
qualifications could not be documented or verified.                    reliability of the dog’s performance properly goes to the
                                                                       credibility of the dog. Lack of additional evidence, such
  We recognize that an alert in the context of a canine                as documentation of the exact course of training,
narcotics sniff indicates that narcotics are present in the item       similarly would affect the dog’s reliability. As with the
being sniffed or have been present in such a way as to leave           admissibility of evidence, generally, the admissibility of
a detectable odor. United States v. Buchanon, 72 F.3d 1219,            evidence regarding a dog’s training and reliability is
1217 n.1 (6th Cir. 1995). Thus, we now consider whether the            committed to the trial court’s sound discretion.
testimony regarding the alert in this case is reliable. This
Court considered the reliability of testimony as to canine         Id. at 394. Thus, after it is shown that the dog is certified, all
searches in United States v. Diaz, 25 F.3d 392 (6th Cir. 1994),    other evidence relating to his accuracy goes only to the
for purposes of determining whether a canine’s alert could         credibility of the testimony, not to the dog’s qualifications.
satisfy probable cause for a warrantless search of a car in a      See United States v. Sanchez-Pena, 336 F.3d 431 (5th Cir.
public parking lot. For guidance in determining whether such       2003) (evidence that the dog was certified was sufficient
testimony was admissible without documentation verifying           proof of his training to make an effective alert); United States
the dog’s reliability, we applied general principles of evidence   v. Daniel, 982 F.2d 146, 152 n.7 (5th Cir. 1993) (noting that
law.                                                               there is no requirement of an affidavit demonstrating the
                                                                   reliability of a drug-detecting dog); United States v. Wood,
   We held that in order to admit evidence of a dog’s alert to     915 F.Supp. 1126, 1136 n.2 (D.Kan.1996), rev’d on other
an aroma of drugs, it is not necessary to provide the dog’s        grounds, 106 F.3d 942 (10th Cir. 1997) (“[w]ith a canine, the
training and performance records, as it is similarly               reliability should come from the fact that the dog is trained
unnecessary to qualify a human expert in this way. Rather,         and annually certified to perform a physical skill. When the
testimony as to the dog’s record is sufficient. Id. at 396. We     annual certification process involves actual field testing and
stated: “[w]hile training and performance documentation            grading of the canine’s drug-detection skills . . . the canine’s
would be useful in evaluating a dog’s reliability, here the        reliability is sufficient for a probable cause determination
testimony of [the dog’s handler] sufficiently established the      absent some circumstance that justifies a more complete
dog’s reliability.” Id.                                            examination of the canine’s skill and performance.”). In this
                                                                   case, Officer Anderson testified that Cuffs was certified as a
No. 02-6446                      United States v. Boxley       5   6    United States v. Boxley                      No. 02-6446

drug detection dog after a two-month training program.             preservation would have yielded fingerprint evidence. The
Because Cuffs was certified, the district court properly           government also demonstrated that the police did not act with
admitted Anderson’s testimony.                                     any intention to destroy evidence. In Nationwide, 174 F.3d
                                                                   at 804, this Court defined “intentional destruction” not as a
        II. Instruction on Spoliation of Evidence                  knowing and willful removal of evidence, but as removal with
                                                                   the “purpose of rendering it inaccessible or useless to the
  At trial, Boxley requested the following jury instruction:       defendant in preparing its case; that is, spoiling it.” In this
                                                                   case, testimony adduced at trial indicated that several police
  The government in this case has failed to take efforts           officers handled the bag that contained the drugs. However,
  toward preservation of certain fingerprint evidence. The         as the government contends, there is nothing to indicate that
  failure to preserve this evidence creates a rebuttable           the officers did so in bad faith. Rather, the proof at trial
  presumption that the missing evidence may have been              indicated that the bag was passed around “because it was the
  favorable to the defendant. This presumption could be            largest amount of crack any of them had ever seen.”
  sufficient to create a question of reasonable doubt on the
  issue of whether Reginald Boxley ever possessed the                We agree with the district court: “the most that has been
  cocaine base charged in his indictment.                          shown is that the policemen did not maintain and control the
                                                                   evidence in a manner consistent with good police tactics. But
In arguing for a presumption based on the government’s             there was no bad faith involved.” Because the fingerprints
“failure to preserve” evidence, Boxley claims spoliation.          were not likely to be lifted from the evidence notwithstanding
Spoliation is defined as the intentional destruction of evidence   the officers’ actions, and because their actions were not in bad
that is presumed to be unfavorable to the party responsible for    faith, the motion for a jury instruction on spoliation was
its destruction. See Nationwide Mut. Fire Ins. Co. v. Ford         properly denied.
Motor Co., 174 F.3d 801, 804 (6th Cir. 1999).
                                                                                                 III
   The doctrine traditionally operates against the defendant in
a criminal prosecution. For example, the prosecution usually         For the foregoing reasons, we AFFIRM the judgment of the
requests a jury instruction on spoliation when there is            district court.
evidence that the defendant intentionally destroyed evidence
again him. Here, Boxley argued, unconventionally, for the
use of a spoliation instruction against the police, so that the
jury would exercise an unfavorable presumption against the
prosecution. Boxley argued that in order to hold the
government to its burden of proving guilt beyond a
reasonable doubt, he should have every access to
presumptions in his favor.
  The facts of this case do not warrant exercising the
presumption. At trial, the government demonstrated that
there was very little chance that even the most diligent
