                               FIRST DIVISION
                                BARNES, P. J.,
                          MCMILLIAN and MERCIER, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                       June 20, 2017


In the Court of Appeals of Georgia

 A17A0172. HARRIS v. THE STATE.

       BARNES, Presiding Judge.

       Bruce Ervin Harris was indicted for trafficking marijuana and possession of

marijuana with intent to distribute at Atlanta Hartsfield Jackson International Airport. The

trial court granted the State’s motion to quash Harris’s subpoena for all records and

documents pertaining to the canine and its handler involved in the detection of drugs in

Harris’s luggage. The trial court certified its order for immediate review, and this Court

granted Harris’ application for an interlocutory appeal of the trial court’s order. This

appeal ensued.

       We review the grant of a motion to quash a subpoena under the abuse of discretion

standard of review. Bazemore v. State, 244 Ga. App. 460, 463-464 (2) (535 SE2d 830)

(2000). So viewed, the record reveals that Homeland Security Investigations officers

received a tip about the flight Harris was on originating from San Francisco. When he

arrived at Hartsfield-Jackson International Airport, the luggage from Harris’s flight was
removed by agents and lined up in two rows. A special agent and his trained canine,

“PacMan,” walked along the rows of luggage and PacMan alerted at Harris’ bag.

Afterward, all of the bags were taken to baggage claims, and when Harris claimed his

bags, agents made contact with him. During an ensuing interview, Harris consented to a

search of his bags. Officers recovered approximately 40 pounds of marijuana from Harris’

bag.

       Harris was indicted and charged with trafficking marijuana and possession with

intent to distribute marijuana on October 14, 2015. He filed a preliminary motion to

suppress on December 4, 2015, and a particularized amended motion to suppress on

December 10, 2015, which he later amended and filed on December 29, 2015. The

motions were all filed under the 2015 indictment number.

       On January 6, 2016, the State re-indicted the case, and on January 20, 2016, Harris

filed a motion to suppress, again under the 2015 indictment number, in which he argued,

among other things, that the drug dog was unreliable.1 On February 2, 2016, Harris filed




       1
        The record does not include any filings made under the previous indictment.
Much of the procedural posture was detailed at the March 24, 2016 hearing on the State’s
motion to quash.

                                            2
a witness subpoena seeking certain information about the canine and the handler.2 On

February 15, 2016, the State filed a motion to quash the subpoena on the grounds that it

was unreasonable and oppressive, in violation of OCGA § 24-13-23, and that the material

sought was not relevant, as defined in OCGA § 24-4-401.

       On February 25, 2016, a hearing was held on the motion to quash, but it was

continued to a later date to allow Harris to re-file his motion to suppress after the trial

court noted that the only pending motion to suppress had been filed under the 2015

indictment number. The parties agreed that Harris would be permitted to file a motion to

suppress identical in “form and substance” to the motion to suppress “inadvertently” filed

under the 2015 indictment number. On February 26, 2016, Harris re-filed his motion to

suppress under the 2016 indictment number. In addition to asserting the lack of probable

cause for the seizure of his bags, lack of consent, and that the warrantless seizure of the


       2
           The subpoena in its entirety requested:
                1. All rules, regulations, policies, etc. in your possession, custody or
       control relating to the use of drug/narcotic/explosive detection canines; 2.
       All rules, regulations, policies, etc. in your possession, custody or control
       relating to the use of drug/narcotic/explosive detection canines and
       handlers; 3. All records and documents relating to drug/narcotic/explosive
       detection canine handler S/A Brian Hoopingarner; and 4. All records and
       documents relating to drug/narcotic/explosive detection canine “PacMan.”


                                                3
bag was an illegal search and seizure, Harris also maintained that “the particular dog used

was unreliable.”

       On March 24, 2016, the trial court held a hearing on the State’s motion to quash,

at which the State argued, among other things, that per Florida v. Harris, 568 US 237

(133 SCt 1050, 185 LE2d 61) (2013) and other legal authority, documents related to the

dog’s training are not relevant if a dog is certified on the day in question, and that the

subpoena was overly broad and burdensome.3 The State had previously provided Harris

with five documents – the handler’s training completion certificate, PacMan’s training

completion certificate, a certificate from the National Narcotic Detector Dog Association

(“NNDDA”) certifying that PacMan and the handler had completed NNDDA

certification, and the cover of the NNDDA certification book showing the certification

numbers. It argued that this documentation met the Florida v. Harris criteria for

establishing the dog’s reliability, and that reliability “goes to the alert and whether that

provides probable cause. . . . Reliability does not go to the training.” The State further

asserted that Harris challenged the dog’s reliability, not its training, in his motion to



       3
        At the hearing, Harris withdrew the first two requests listed in his subpoena, and
the only remaining items sought under the subpoena were the records and documents
relating to PacMan’s handler, the handler, and the records and documents relating to
PacMan.

                                             4
suppress, that it had provided all relevant materials establishing reliability through the

certification documents, and “[a]nything else isn’t [relevant to whether the dog was]

reliable.”

       Harris agreed with the State that under Florida v. Harris there is a presumption that

“evidence of certification if unchallenged is enough.” but that the case further establishes

that the presumption is rebuttable. He asserted that he should be permitted to challenge

the dog’s reliability not only cross-examination, but also “based on the underlying records

of the dog and the handler. That’s the basis for the subpoena.” Harris maintained that “as

used in a context of a motion to suppress or a suppression hearing the subpoena would

be used to challenge the reliability of the dog and the dog handler.”

       At the conclusion of the hearing, the trial court orally ruled as follows:

       After hearing the argument of the parties and examining the subpoena
       sought by [Harris], first of all, looking at the motion to suppress and what
       is sought in the motion to suppress, the Court grants the motion to quash by
       the State, finding that the items that are sought by the subpoena duces
       tecum are not relevant. Also, that the requests are over broad, they are
       unreasonably burdensome and oppressive.”


Subsequently, the trial court entered a written order granting the State’s motion to quash.

       Following our review, we vacate the trial court’s grant of the State’s motion to

quash and remand for further proceedings consistent with this opinion.

                                             5
              When a motion to quash a subpoena is filed, the party serving the
       subpoena has the initial burden of showing the documents sought are
       relevant. Where the evidence sought in a subpoena duces tecum is
       demonstrably relevant and material to the defense, it is error for a trial court
       to quash the subpoena.


(Citations and punctuation omitted.) Gregg v. State, 331 Ga. App. 833, 835 (771 SE2d

486) (2015) (physical precedent only).

       The material requested in Harris’ subpoena were “[a]ll records and documents

relating to drug/narcotic/explosive detection canine handler . . . and . . . [a]ll records and

documents relating to drug/narcotic/explosive detection canine “PacMan.” He contends

that the materials had demonstrative material relevance to an ultimate issue of his defense

as presented in his motion to suppress, to wit: PacMan’s reliability.4 Harris further

contends that per Florida v. Harris, he has a vested right to challenge the State’s

certification evidence of PacMan’s’s reliability because the reliability of the dog’s alert

is a “fact of consequence” to his motion to suppress and, moreover, that he is entitled to

cross-examine the handler with the subpoenaed training documents that might either

support or contradict the handler’s opinion that PacMan’s alert was reliable. Thus, he


       4
        OCGA § 24-4-401 (“‘relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence”).

                                              6
argues, because he has met the burden of establishing that the documents are relevant and

material to his defense or fall within his broad right to a thorough and sifting cross-

examination, the trial court erred in granting the motion to quash. See Gregg, 331 Ga.

App. at 835.

       According to the State, PacMan was certified through the NNDDA for the

detection of marijuana and other narcotics and drugs, and because Pacman’s certifications

were current on the day of the incident, in accordance with United States v. Villa, 348

Fed. Appx. 376 (10th Cir. 2009) and U. S. v. Gonzalez-Acosta, 989 F.2d 384, 388-389

(1993), there was a presumption of reliability. Thus, the State argues, the documents in

the subpoena, which were related to the dog’s training, are not relevant to show that the

dog was reliable.

        In Florida v. Harris, the Supreme Court reversed the grant of a defendant’s

motion to suppress on the grounds that Florida’s requirement that the State present an

exhaustive set of records to establish a dog’s reliability was “inconsistent with the

flexible, common-sense standard of probable cause.”133 SCt. at 1053. There, the

defendant did not challenge the dog’s training, arguing instead that the dog’s certification

had expired and that he had falsely alerted twice to defendant’s truck even though no

drugs were found therein. The Court explained that


                                             7
       evidence of a dog’s satisfactory performance in a certification or training
       program can itself provide sufficient reason to trust his alert. If a bona fide
       organization has certified a dog after testing his reliability in a controlled
       setting, a court can presume (subject to any conflicting evidence offered)
       that the dog’s alert provides probable cause to search. The same is true,
       even in the absence of formal certification, if the dog has recently and
       successfully completed a training program that evaluated his proficiency in
       locating drugs.


(Emphasis supplied.) Florida v. Harris, 133 SCt at 1057 (II). But, the Court also pointed

out that

       [a] defendant must have an opportunity to challenge such evidence of a
       dog’s reliability, whether by cross-examining the testifying officer or by
       introducing his own fact or expert witnesses. The defendant, for example,
       may contest the adequacy of a certification or training program, perhaps
       asserting that its standards are too lax or its methods faulty. So too, the
       defendant may examine how the dog (or handler) performed in the
       assessments made in those settings.


Id.

       In McKinney v. State, 326 Ga. App. 753 (755 SE2d 315) (2014), this Court relied

upon the Florida v. Harris standard for reviewing probable cause based upon an alert.

Quoting from that case, we held that

       [t]he court should allow the parties to make their best case, consistent with
       the usual rules of criminal procedure. And the court should then evaluate

                                             8
       the proffered evidence to decide what all the circumstances demonstrate. If
       the State has produced proof from controlled settings that a dog performs
       reliably in detecting drugs, and the defendant has not contested that
       showing, then the court should find probable cause. If, in contrast, the
       defendant has challenged the State’s case (by disputing the reliability of the
       dog overall or of a particular alert), then the court should weigh the
       competing evidence.


Id. at 755 (1). And, in Gregg, which was decided after McKinney, this Court explained

that a defendant who elects to have the reciprocal discovery statutes apply may

nonetheless utilize subpoena power to obtain relevant documents. Gregg, 331 Ga. App.

at 835. “Where the evidence sought in a subpoena duces tecum is demonstrably relevant

and material to the defense, it is error for a trial court to quash the subpoena.” Id.

       In the present case, at the hearing on the motion to quash, the trial court orally

found that the items sought in the subpoena were not relevant to “what is sought in the

motion to suppress,” and also that the requests are overly broad, unreasonably

burdensome and oppressive. Although the subsequent written order did not provide a

rationale for granting the motion to quash, the trial court apparently accepted the State’s

contention that the certification documents alone created an unrebuttable presumption of

reliability, and that materials related to training were not relevant to demonstrate

reliability.


                                             9
       While, as explained by this Court in McGivney, within the context of establishing

probable cause, certification can be sufficient to show that the dog’s alert is reliable, this

presumption is established when the reliability is uncontested. McGivney, 326 Ga. App.

at 755 (1). But if the defendant contests the reliability of the alert then “the court should

weigh the competing evidence.”Id. To do so, the defendant should be permitted to utilize

subpoena power to obtain relevant materials. Gregg, 331 Ga. App. at 835. Thus, for the

trial court to weigh competing evidence, the defendant must have access to it. The cases

do not hold, as the State asserts, that Harris is precluded from challenging the reliability

of the alert with materials related to training because reliability was presumptively

established by demonstrating certification on the day of the alert.

       Having determined that certification on the day of the alert does not preclude a

challenge to the reliability, this Court cannot determine from the existing record whether

the training materials were relevant to the issue of reliability. The subpoena requested all

of the “records and documents relating to” the handler and PacMan. At the hearing on the

motion to quash, the State simply argued that the materials were irrelevant because

training materials were not related to reliability, and reliability was established per se by

the certification. Other than the blanket assertion that training materials are irrelevant to

demonstrate reliability based on its interpretation of Harris and its progeny, the State


                                             10
offered no other basis for its objection. Moreover, even if the subpoena was overly broad,

a trial court has discretion to modify it. See OCGA § 24-13-23; Bazemore v. State, 244

Ga. App. 460, 464 (2) (535 SE2d 830) (2000) (in response to a motion to quash, a trial

court may modify a subpoena.)

       Accordingly, because it is unclear whether Harris met his burden of establishing

that the subpoenaed materials were relevant to challenge the reliability of the alert, and,

if so, whether the State then met its burden of demonstrating that the subpoena was overly

broad and unreasonably burdensome, we vacate the trial court’s judgment and remand

this case to the trial court for further proceedings consistent with this opinion.

       Judgment vacated, and case remanded. McMillian and Mercier, JJ., concur.




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