People v. Childs (2nd Dist. 2013) 2013 Cal. App. Unpub. LEXIS 5609

Scent Tracking/Identification; Foundation for Scent Identification; Reliability Foundation

A defendant convicted of murder, among other things. Shell casings were collected at the scene. Using a Scent Transfer Unit, scent pads were made from the shell casings by PSD’s handler. PSD was exposed to the scent pads and told to, “Find ‘em.” PSD followed a trail to an apartment complex and showed interest in two apartments. A 2nd PSD and his handler were then dispatched and the 2nd PSD, after being exposed to the scent pad, showed interest in same apartments. About two years later, a scent pad was made from a shirt worn by the defendant. A scent line up was made to match the scent pad from the casings to the scent pad from the shirt. The 2nd PSD made the correct identification.

At trial, the prosecutor asked the trial judge to take judicial notice of a trial in the same jurisdiction where the STU had been found to have passed the Kelly test. The trial court, in this case, adopted the previous findings: 

(1) The STU is generally accepted as reliable in the relevant scientific community; 

(2) The protocol that handler uses for cleaning and using the STU is generally accepted as reliable in the relevant scientific community; 

(3) Experts have established to a reasonable scientific certainty that human scent is unique and that trained dogs can reliably distinguish between one scent and another; 

(4) Experts have established that, for purposes of scent identification, scent can remain on an object for years, through bomb blasts, underwater, and in the elements; 

(5) Scent can remain on a gauze pad for several months, then slowly decreases, although the human scent pattern remains; 

(6) It is the training, rather than the breed, of the dog that makes a dog proficient in scent detection, identification, and discrimination; and 

(7) Dogs can be trained to accurately discriminate between human scents, such as in a scent lineup.

Defense counsel did not object to the findings but challenged the foundation for the evidence of scent identification at a hearing. The court allowed the testimony. In his appeal, the court found that defendant had forfeited the issue of a Kelly objection and that an appropriate foundation was presented through the testimony of the handler regarding training and certification as well as how the scent identification was prepared and executed.