PEOPLE v. SOMMER (1993)

Appellant challenges the use at her jury trial of evidence that a narcotics detection dog “alerted” after sniffing her large cash bank deposits.   Appellant was convicted of eighteen counts of money laundering (Pen.Code, § 186.10, subd. (a)(2)) ¹ and nine counts of unlawful transaction structuring (Pen.Code § 14166, subd. (c)).²  The trial court suspended imposition of sentence and placed appellant on probation.

Appellant contends that the trial court erred in admitting this dog sniffing evidence because the evidence failed to meet the Kelly/Frye test for the admission of evidence obtained through the application of novel scientific techniques.   She contends that this evidence was admitted without a sufficient foundation, was irrelevant and that the trial court should have given a cautionary instruction regarding it.   She further contends that the police's failure to preserve the sniffed currency for scientific testing rendered her trial fundamentally unfair, and that the evidence was insufficient to prove her guilt beyond a reasonable doubt.   We affirm.

The evidence at trial described appellant's numerous financial transactions in the summer of 1990 which caused bank officials and law enforcement authorities to become suspicious of her.   On May 29, 1990, she opened an account at Great Western Bank's Northridge office in Salinas.   Appellant already had an account at the Bank of America Fort Ord office, which she opened in 1987.   Appellant opened her Great Western account with an initial cash deposit of two thousand dollars.

In the first or second week of June, 1990, appellant told her companion, Gary Gage, that she had received a strange phone call from a man looking for her husband.  (Gage, who had been involved in a romantic relationship with appellant, testified at trial under a grant of immunity.)   The caller told her to tell her husband his “cut” is “1.6.”   Appellant replied “1.6, Mike,” and the man said “yes.”   Appellant explained to Gage that she meant 1.6 million, and that she didn't know what the call was about, but that if it was a drug deal, her husband “should make a big one and get out of it.”

On June 12, appellant made seven $1,000 deposits to her Bank of America account using the automatic teller machine (“ATM”).   On June 20, 1990, at the Great Western Bank ATM, appellant deposited a total of $6,775.92, $5,000 of which was cash.   This deposit was made at 1:22 a.m..  The cash portion of this deposit was in twenty dollar bills divided into five different envelopes containing $1,000 each.  (The ATM could not accept a deposit thicker than $1,000 in twenty dollar bills.)   That same date, at the Bank of America, ATM envelopes containing $9,000 in twenty dollar bills were deposited to appellant's account.   On July 2, 1990, appellant deposited $9,000 at Great Western and was credited with a deposit of $6,000 at the Bank of America.   Both of these deposits were in twenty dollar bills.   To her Great Western account, appellant made similarly packaged ATM deposits of $9,000 each on July 3 at 1:42 a.m., July 11 at 10:35 p.m., and July 12, 10:43 p.m..  At the request of law enforcement officials, the July 12 deposit was segregated by the bank for investigative purposes.   Her Bank of America account was credited July 3 with $9,000 in twenty dollar bills, July 12 with $8,000 in twenties, and July 13 with twelve deposits totaling $10,000.

During this time period, appellant discussed Massachusetts real estate with Gage.   She told him she wanted to buy a house for her mother and a piece of property for herself to build on and, eventually, “move back home.”   On July 13, appellant withdrew $47,109.39 from her checking account and $1,115.43 from her savings account.   She combined these sums with a $2,000 cash advance from Master Card to generate a wire transfer of about $50,000 to another bank.   The transfer was incident to her purchase of a house in Massachusetts.   Appellant's transaction generated a transaction report form which she signed.³

Sometime later, Gage told her of some wooded acreage in Massachusetts that was very close to foreclosure and was a “heck of a deal.”   Appellant said she wanted the property.   While Gage was visiting her at her home in Salinas, appellant brought out a cardboard box with approximately $50,000 in tens and twenties wrapped in bundles.   She counted out $20,000 and put it in her briefcase.

Gage and appellant went to the Great Western Bank with the money so appellant could obtain a cashier's check.   This money was later segregated by the bank for the police investigation.   At the bank, appellant had to fill out a form due to the amount of money involved.   Appellant told Gage “I hope he appreciates this because I can go to jail for this one.”   Gage thought she was referring to the person from whom she was buying the property.   Gage and appellant then went to the Bank of America where appellant withdrew another $9,000 for a second cashier's check.   Afterwards, appellant called her husband to tell him what happened at the bank and “that she had to fill out some papers [for] the IRS.”   Appellant told Gage that her husband “took it pretty well, but he thought maybe he should come out and straighten things out.”

On September 6, appellant deposited $5,000, and on September 9 she deposited $4,000.   Both of these deposits were segregated by the bank and held for the police.   On September 12 she deposited $8,000.   Appellant's husband returned and appellant called Gage and told him “she found out that she was under investigation.”   On October 7, she deposited $2,000.   Appellant visited the Sheriff's department to determine if she was under investigation.   Shortly thereafter, the police arrested her and searched her residence.

As part of the investigation into appellant's financial transactions, the police used a three year old female German Shepherd dog named Star.   Star had been trained in “olfactory lock work” to lock in on the scent or odor of cocaine, heroin, marijuana and methamphetamine and “alert” to it by sitting down.   On July 27, Star alerted on a bank bag in which the bank officials had placed appellant's July 12 deposit.   On August 2, Star alerted on the $20,000 cash segregated on July 28.   On September 12, Star alerted on the September 6 and 9 deposits.

On October 14, authorities executed a search warrant at appellant's home and arrested her.   Star took part in the search of appellant's residence.   She alerted on a bedroom nightstand drawer which had bundles of currency stacked inside.   She alerted to two packages of currency found underneath the bed.   She alerted on a closed purse which had currency inside.   No drugs were found in the home.   Police did find over $50,000, mostly in five, ten and twenty dollar bills.

In 1990, appellant earned $12,601 for her work as the manager of the Northridge Pet Center.   She had started with part time work at the pet store in 1988, with the remainder of her time spent in the military.   In 1989, appellant's gross pay from the pet store was $6,733, and in 1988, she earned $7,371.   In 1990 appellant bought a Chevy pick-up truck with cash and her trade-in.   Appellant owned birds worth approximately $23,000, and six reptiles worth about $250 to $300 each.

To tie this evidence to money laundering and unlawful transaction structuring, the prosecution introduced testimony from a narcotics investigator that he commonly encountered twenty dollar bills in his seizures of drugs because the price of small quantities of marijuana, heroin or cocaine was $20 to $25.   He said that in about 25 percent of his narcotics searches, he recovered large amounts of cash, normally bundled in consistent amounts such as $1,000, totalling $15,000 to $50,000.

An Internal Revenue Service special agent explained that in transaction structuring, cash transactions are handled to avoid the bank reporting requirements which are triggered when a cash transaction over $10,000 is involved.   Typically, bank accounts are used to structure cash transactions and then the money is withdrawn or used to buy property or make investments which end up in the name of the person involved in the criminal activity.   Often the money coming out of the account is wire transferred to an East Coast bank or out of the country.   An individual involved in such schemes may have several different bank accounts into which sequential deposits are made.   The agent testified that appellant's banking pattern, although not very sophisticated, fit the classic scenario of money laundering or transaction structuring schemes.

Evidentiary Issues

Appellant contends the trial court erred in admitting the evidence regarding Star's alerts.   The evidence concerning Star's performance came from her handler, her trainer, and a veterinarian.

A Monterey Sheriff's Deputy testified that he handled Star.   The handler first worked with Star in Sacramento while she was being trained as a narcotics sniffing dog in August and September 1989 by a Sacramento police officer and full-time canine trainer.

The trainer had worked as a canine officer since 1971, and had pioneered on the west coast the training of dogs in law enforcement for explosives and narcotics detection work.   He explained that after the dog is obedience trained, the dog is trained in “olfactory lock work” which means the dog is trained “to lock in on a particular scent or an odor that we want them to locate.”

The olfactory lock work is a “conditioning process,” in which the dog is rewarded by getting a rubber ball thrown to it when it sits in the presence of certain narcotic substances.   This is known as a passive alert.

In training dogs such as Star, both pure narcotics and street-grade drugs are used.   Street narcotics usually are diluted with another substance.   To ensure that the dog is “in fact alerting on narcotic material and only narcotic material,” the trainers “constantly set scenarios up where [they] try to fool the dog's abilities.”   This includes cutting the cocaine with different items.

During training, the trainer extinguishes inappropriate responses, i.e., false sits, by refusing to reward the dog's behavior.   These false sits are common during training as the dog seeks a short-cut to a reward.   However, with a well-trained dog, the false sit is almost nonexistent.

The trainer has found that this conditioning technique is a reliable way to train narcotics detecting dogs.

In addition, the trainer explained that he also works with the dog's eventual handler to make sure that the handler by body language does not cue the dog to the location of the narcotics.   In fact, the trainer explained that extensive work with the handler was necessary because a dog “is not like a gun where you can load it and go out and pull the trigger․ [rather] ․ [y]ou have to know how the dog behaves and how he learns․”

A dog is not permitted to go out to full duty until it stops false sitting.

The trainer testified that in his experience when a narcotics detecting dog alerts on currency and the narcotic material is not visible, the assumption is “that whoever was handling the narcotic also handled the currency, and left the residue of the narcotic on the currency.”   He also explained that during a search, whenever a dog alerts to currency, the trainer makes two or three control samples from available officer pocket money, and then runs the dog by the control samples to ensure that the dog is not alerting to just any currency, but to “that particular bundle of currency that we feel has got the narcotic material on it.”   He also testified that the dogs he trained, “always alerted on the correct [currency].”

He said that in the cases he worked on in which the dog had alerted to currency, he did not have the currency tested by the Department of Justice crime laboratory.

Extrapolating from his knowledge of explosives, the trainer said that a machine that tests for narcotics might not be as sensitive as a dog.   With explosives, he explained, the machine which detects explosive material can smell in parts per million, but that scientific studies had found that “dogs have the ability to smell in parts per trillion.”  “[S]o if ․ the same ․ type of machine that is used in explosives [is] used on narcotics, you may get an alert from the dog where the machine may not back it up.”

The trainer was aware of reports that there were trace amounts of certain types of narcotics on general circulation currency.

At the time the handler worked with the trainer, he learned about dog handling, the olfactory system of a dog, and the dog training techniques.   Star was trained to search for cocaine, heroin, marijuana and methamphetamine.   During her training, Star did some false sits.   The trainer said that the handler did not have a problem with the training.   Star was trained to respond to narcotics with a “passive alert” i.e., she would sit down when she smelled the narcotic.   Star's reward for finding the narcotic was to have a ball thrown for her.

Before she began work as a narcotics sniffing dog, Star also was certified by the department.   A three-judge panel appraised Star in a test in which she had to locate different narcotics.   Star was required to be retested and certified approximately every six months.

The handler had worked continuously with Star since he officially received her in October 1989, and he kept monthly training records of her work.   Star had logged over 100 hours in narcotic training searches in the last year.

For Star's training, the handler hid narcotics which had been tested by the Department of Justice lab for narcotic content.   He did not repeatedly use the same area so that the dog would not become accustomed to searching in one location.   He specifically worked with Star in the detection of narcotics on currency.   He would put currency and narcotics in the same manilla envelope for about a day before separating the narcotics from the currency.   Star would then have to locate both the currency and the narcotics which were hidden in different places.   The handler reported that Star performed really well by alerting on both the actual narcotic and the currency during these tests.

The handler also kept records of Star's performance on case searches.   He estimated that he had used Star about 40 times in the past year on search warrants and public demonstrations.   Star did not alert to narcotic cutting agents, alone.   The handler described several cases in which Star alerted on currency as well as narcotics.

Star's handler testified that in his opinion Star was “reliable in detecting narcotic scents,” and had done so “time and time again.”   In his opinion, there was “no doubt” that Star also was reliable in detecting narcotic scents emanating from currency, and that she had “done it in the past.”   He testified that in other cases where Star had alerted to currency, the money was not tested to validate the search.   Some of the currency recovered from appellant's house search was tested for cocaine at a forensic lab.   No cocaine was detected.

Star's handler said that there was one incident where Star alerted but no narcotics were found.   In that incident, in which a search revealed a large amount of cut cocaine, Star also alerted to a hamper filled with the suspect's dirty clothes.   The handler assumed that Star had alerted to the hamper because there was a narcotic smell on the suspect's clothes, and that the amount of narcotics in the hamper was not an amount detectable by human devices.

In one training incident, Star alerted to an area that previously had contained narcotics.   In that incident, the handler's wife had hidden narcotics in a jewelry box, prior to removing the narcotics and hiding them elsewhere.   In that training session, Star alerted to the jewelry box.

After reviewing Star's training history and work experience records, Star's trainer testified that Star was doing “very well” in her work as a narcotics sniffing dog.

He testified that if Star had alerted on currency that had been in close proximity to cocaine, but did not alert to control samples placed in the same area after several opportunities to do so, he would believe that “the dog [was] hitting on a narcotic source.”

After the court was satisfied with the evidentiary foundation, Star's trainer was permitted to give his response to hypotheticals close to the facts of the case.   He believed that Star was reliable if she twice alerted to a bag of suspect money in a room which also contained two control bags filled with old or teller-fit money from the bank, even after all money bags were moved around within the same room to different locations.

In response to another hypothetical question, he also testified that “there was no doubt in [his] mind” that Star was alerting to the scent of narcotics in tests such as those performed at the bank.   He believed that tests such as these done at the Great Western Bank were particularly reliable because the handler had done everything “to mix up the scenario to keep the dog from doing any kind of generalizing.”

Dr. Janet Brennan testified about how the dog's sense of smell works.   Dr. Brennan had been a veterinarian for 21 years, a member of the Board of Governors for the California Veterinarian Medical Association, and had been awarded the Outstanding Woman Veterinarian of the Year.   Dr. Brennan had done work in dog obedience training and tracking, and was a consultant for the Santa Cruz Police Department in training dogs for narcotics and disaster work;  she also was a consultant in Santa Clara for the patrol dog unit.   Dr. Brennan had published articles on search and rescue dogs and had lectured on the dog's ability to detect odors.

Dr. Brennan set forth that a dog has about 220 million olfactory cells as opposed to five million in the human nose.   Dr. Brennan explained that the “dog communicates with his nose,” and that even as “a puppy he can discriminate and has a tremendous communication with his world ․ through his olfaction.”   Dr. Brennan testified that the “classic” work on a dog's sense of smell was done by Loyner in the late 19th and early 20th century.   Loyner found that minimum scents could be found by trained dogs.   Dr. Brennan said that many people, herself included, generally confirmed this observation in their work with dogs.   Dr. Brennan agreed that the ability to scent narcotics is variable from dog to dog, with some being good and others not so good.

Dr. Brennan testified that the “olfactory lock system” for training narcotics and explosives detecting dogs is “very reliable ․ in a very short period of time․”  Dr. Brennan had done some work in the detection of narcotics on currency, and from her observations, the dogs were very reliable in detecting cocaine on currency and in not false alerting.

When Dr. Brennan was asked to comment on a hypothetical similar to the one given to Star's trainer, and similar to the facts in the case, Dr. Brennan also stated that it was a situation in which the “scent that the dog was alerting on would have been appropriate,” and particularly given the multiple chances involved, the dog was reliable.

Dr. Brennan reviewed Star's records and testified that there seemed to be no evidence of false alerting.   Dr. Brennan also testified that if a dog who “has had a good maintenance training record [and who] has been evaluated consistently” alerts to currency which is later tested and found to have no measurable amount of narcotics on it, then she would conclude that “the dog is right,” i.e., there was narcotics associated with the currency.

On cross-examination, Dr. Brennan said that she was not familiar with a study which has shown that money in general circulation is contaminated with narcotics, but that she was familiar with “the statement.”   Dr. Brennan testified that in her experience dogs did not false alert on general circulation money.

 Appellant advances three grounds:  (1) That the dog sniffing evidence failed to meet the Kelly/Frye test;  (2) that the prosecution failed to lay a sufficient foundation for admitting the evidence, and (3) that the evidence was irrelevant.   The Kelly/Frye ⁴ test is a threshold requirement for the admission of evidence derived from a new scientific technique.   The proponent of such evidence must show that the technique is sufficiently established to have gained general acceptance in the particular field in which it belongs.   A trial court must require a “preliminary showing of general acceptance of the new technique in the relevant scientific community” when faced with a “novel method of proof.”  (17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)   Appellant contends that the testimony concerning Star's positive alerts on currency as evidence that the currency was tainted with cocaine and thus that the money was the proceeds of criminal activity is a novel method of proof.

The trial court declined to apply a Kelly/Frye analysis to the evidence of Star's alerts and relied on People v. Craig (1978) 86 Cal.App.3d 905, 150 Cal.Rptr. 676.   In Craig, two defendants, detained in a police car, were positively identified by an armed robbery victim within thirty minutes of the offense.   Following extensive expert testimony as to the training and skills of the police dog used, the court admitted evidence that the dog trailed from the robbery getaway car to the point of the defendants' detention.   Upholding the trial court's admission of the trailing evidence and rejecting a Kelly/ Frye challenge to its admission, the Craig court described trailing as a “subjective, innate capability” rather than an “inanimate scientific technique.”  (Id. at p. 916, 150 Cal.Rptr. 676)  This “basic distinction in the ․ subject matter” removed the case from Kelly/ Frye analysis.   The court instead chose “to require each particular dog's ability and reliability be shown on a case-by-case basis.”  (Id. at p. 915, 150 Cal.Rptr. 676.)

Appellant contends that Craig is factually distinguishable because a trailing dog is using different, more innate capabilities than a narcotics detection dog.   We find this distinction rather strained.   Trailing, or being trained to track a given scent, is a different behavior than alerting, or being trained to sit in the presence of particular scents.   However, they share the premise that dogs can smell things humans cannot and can be trained to communicate this through various behaviors, such as tracking, sitting, barking or digging.   The dog is using its superior olfactory ability whether it is sniffing objects in a room to determine if any of them smell like narcotics or sniffing a trail to follow a given scent.   The distinction appellant urges does not persuade us that we should reject the holding in Craig.

Appellant contends that Craig is analytically flawed because it expresses the view that the Kelly/Frye test applies only to scientific apparatuses and “electronic gadgetry.”  (Craig, supra, 86 Cal.App.3d at p. 915, 150 Cal.Rptr. 676.)   The California Supreme Court has rejected the notion that the Kelly/Frye test applies only to new techniques for scientifically testing physical evidence.   In People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, the court rejected the use of hypnotically aided testimony because the use of hypnosis to restore memory was not generally accepted as reliable.   The court was persuaded that, because of the modification of memory and demeanor which generally follows treatment by hypnosis, post-hypnosis testimony may properly be termed a product of technique.   The court noted that the purpose of the Kelly/Frye test was preventing the jury from being misled by unproven and ultimately unsound scientific methods.   The court expressed concern that lay jurors would give undue weight to such testimony as it would carry a misleading aura of certainty.

In People v. Stoll (1989) 49 Cal.3d 1136, 265 Cal.Rptr. 111, 783 P.2d 698, the court held that the trial court erred in excluding a defense psychologist's expert opinion testimony, based on standardized personality tests and an interview, that the defendants were not sexually deviant.   The court noted that the methods employed by the psychologist in forming his opinion were not new to psychology or to the law and carried no misleading aura of scientific infallibility.   The court's analysis did not limit Kelly/ frye's application to instruments, machines, or mechanical procedures, but noted that it had also been applied to “less tangible new procedures which carry an equally undeserved aura of certainty.”  (Id. at p. 1156, 265 Cal.Rptr. 111, 783 P.2d 698.)

 We agree that evidence subject to the Kelly/Frye test need not be derived soley from new techniques for scientifically testing physical evidence, especially when the evidence carries an unjustified aura of certainty or lay people may be apt to believe it infallible.   Hypnosis and psychological testing are sufficiently outside the realm of lay experience to cause jurors to hold experts testifying about such matters in unwarranted awe.   However, a dog trainer's or handler's testimony does not enjoy this mystique.   Training for narcotics detection work may be more sophisticated and thus a proper subject of expert testimony than training a dog to sit, fetch a ball or stay out of the garbage, but the average juror has some basis in his or her own experiences to muster a healthy skepticism for the expert's testimony on such matters.   Most jurors have never seen a polygraph, voiceprint or breathalyzer.   Many, however, have everyday contact with dogs.   The average juror has had sufficient experience with the subject matter to be able to evaluate the evidence concerning a dog's training, performance, and behavior that the application of the Kelly/Frye test to such evidence is unnecessary.

 Appellant contends that the prosecution failed to lay a sufficient foundation for admitting the evidence of Star's alerts.   The trial court held a pretrial hearing on Star's reliability.   As described above, before testimony concerning Star's work on the case was admitted, the prosecutor introduced extensive testimony concerning Star's training as a narcotics sniffing dog.

Appellant is concerned that trained dogs can experience false sits and that Star's ability to detect cocaine in U.S. currency was never confirmed by a scientific test.   When one currency sample was tested, the result was negative.   Appellant argued this to the jury, which was instructed to determine what weight, if any, to give the expert testimony concerning Star's alerts.   The evidence of Star's training and handling, especially her handler's testimony concerning his work with her specifically on currency associated with narcotics, along with the veterinarian's testimony, provided an adequate evidentiary foundation to allow the admission of the evidence concerning Star's alerts on appellant's money.

 Appellant contends the dog sniffing evidence was irrelevant.   The prosecution sought to prove that appellant's cash deposits were the proceeds of narcotics trafficking.   Because Star alerted to appellant's deposits and not to other currency, the prosecution sought to prove that the money was tainted with narcotics.

 The prosecution's expert recognized that currency in general circulation is tainted with detectable quantities of cocaine.   Thus, argues appellant, one can rationally assign no significance to the fact that appellant's deposits were so tainted.   Because appellant's deposits of general circulation currency were placed in a room with “teller fit” or “ATM” quality currency, the evidentiary significance of her positive alerts was further weakened.   Star had been trained to alert on heroin, methamphetamine and marijuana as well as cocaine.   Her alert on the deposits remains significant whether or not general circulation currency is tainted with cocaine.

Appellant is concerned about the dissimilarities in the types of currency used at the bank investigation.   The relevance of the dog's alert, however, is not dependent on the dog's making a comparison, visual or olfactory, of one currency grouping in the room to another.   Rather, she is simply doing what she was trained to do, i.e., sniff around the room and alert if something there smells like narcotics.   We are not persuaded that the evidence was irrelevant.

Cautionary Instruction

 Appellant contends that the trial court erred in failing to give, sua sponte, a cautionary instruction regarding the weight and reliability of evidence derived from dog sniffing.   In support of this contention, appellant cites three cases:  People v. Gonzales (1990) 218 Cal.App.3d 403, 267 Cal.Rptr. 138;  People v. Malgren (1983) 139 Cal.App.3d 234, 188 Cal.Rptr. 569;  and People v. Craig, supra, 86 Cal.App.3d 905, 150 Cal.Rptr. 676.

In Craig, discussed above, the defendants proposed that the trial court instruct the jury that dog trailing evidence must be viewed with caution, is of slight probative value, and in the absence of some other direct evidence of guilt, dog trailing evidence would not warrant conviction.   The instruction was modified, the reference to slight probative value was deleted and a sentence added that read “ ‘In determining what weight to give such evidence you should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing in question.’ ”  (Id. at p. 917, 150 Cal.Rptr. 676.)   The court held that there was no error in giving the instruction, as modified.   It more closely stated the law by treating dog trailing evidence the same as any other evidence by allowing the weight given to the evidence to be left to the discretion of the finder of fact.

In Malgren, supra, 139 Cal.App.3d 234, 188 Cal.Rptr. 569, a tracking dog led police to the defendant, who was hiding in bushes less than a mile from the burglarized home shortly after the commission of the crime.   The defendant contended on appeal that the trial court erred in failing to give sua sponte, an instruction, based on Craig, that dog tracking evidence should be viewed with caution, and is not alone sufficient to warrant conviction.   The Malgren court rejected the idea that the court was obligated to instruct that dog trailing evidence must be viewed with caution, or that such evidence is of little probative value.   The court did hold that “the trial court should have instructed sua sponte that (1) when dog tracking evidence is used to prove the identity of a defendant, there must be some other evidence, either direct or circumstantial, which supports the accuracy of that identification evidence;  and (2) in determining what weight to give such evidence, the jury should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing question.”  (Id. at p. 242, 188 Cal.Rptr. 569.)

In Gonzales, a police dog smelled a pillowcase used by burglars at a home a short time earlier.   The dog then led police, who observed intermittent foot impressions along their path, approximately nine-tenths of a mile to a vineyard where appellant was found.   The trial court gave an instruction describing factors to consider in determining the weight to give such evidence.

The defendant in Gonzales, supra, 218 Cal.App.3d 403, 267 Cal.Rptr. 138, maintained that the instruction was incomplete because the jury should have been instructed that dog tracking evidence requires corroboration.   The court concluded that, for this reason, the instruction was incomplete under Malgren.   The court specifically noted that it was not considering the propriety of Malgren's making the instruction sua sponte because this was unchallenged by the parties.

Like the Gonzales court, but for a different reason, we need not decide the propriety of Malgren's making the instruction sua sponte.   The rationale for the instruction was expressed in Gonzales as follows:  “The fact that the dog tracks a particular person or that the person found is the person tracked does not, of itself, prove guilt.   What we are concerned with is the possibility that the dog could have erred․  In other words, if we could be assured the scent the dog picked up from the pillowcase in question here was the scent of appellant, and if we could be assured the person found was the person who left the scent, we would conclude appellant handled the pillowcase.”  (Id. at p. 412, 267 Cal.Rptr. 138.)

In this case, there is no question that appellant was the person who deposited the currency on which Star alerted.   We decline to apply Malgren's holding to a case where the defendant's identity is not an issue.

Trombetta Issue

 During their investigation of appellant's financial transactions, the police submitted four of appellant's cash deposits to Star, who alerted on the currency.   The police did not preserve any of this currency for scientific testing, but released it to the bank.   No forensic tests were conducted on the money.   It was returned to the bank for its own use.   The investigator explained that in some cases a decision is made to “let evidence walk” in order not to alert the suspect to the investigation.   He felt the Sheriff's Department could not seize several thousands of dollars without risking that appellant would discover the investigation.   Before trial, appellant brought a motion alleging that the failure to preserve the currency for scientific testing was a denial of due process.   The trial court rejected appellant's claim saying “I think there is some evidentiary value that would have been perhaps helpful to the defense, but I think clearly lacking is the bad faith.”

 The Due Process Clause of the Fourteenth Amendment guarantees that a criminal prosecution will be conducted in accordance with “prevailing notions of fundamental fairness.”  (California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413.)   To preserve that right, a defendant is entitled to exculpatory evidence held by the state.  (Ibid.)  However, “due process does not require that the prosecution obtain any particular evidence or conduct specific tests.  [Citation.]  The police cannot be expected to ‘ “gather up everything which might eventually prove useful to the defense.” ’ ”  (People v. Farmer (1989) 47 Cal.3d 888, 911, 254 Cal.Rptr. 508, 765 P.2d 940.)

 In California v. Trombetta, supra, 467 U.S. 479, 104 S.Ct. 2528, the defendants, who were charged with driving while intoxicated, challenged the admissibility of test results indicating the amount of alcohol in their blood.   They claimed that the state's failure to preserve the breath samples used in the tests violated their right to due process.   The court first observed that in not preserving the samples for defendants, the police were “acting ‘in good faith and in accord with their normal practice.’ ”   (Id. at p. 488, 104 S.Ct. at p. 2533, quoting Killian v. United States (1961) 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256.)   The court then held that the state must preserve evidence which “possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”  (Id., 467 U.S. at p. 489, 104 S.Ct. at p. 2534.)

In Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the defendant was prosecuted for forcible sex crimes against a minor, and the state failed to preserve samples from the victim's body and clothing.   The defendant argued that had the state done so, he would have been able to conduct tests on the samples which would have exonerated him.   The court first reaffirmed the standard of constitutional materiality articulated in Trombetta.  (Id. at p. 56, 109 S.Ct. at p. 336.)   In applying this standard, the Youngblood court recognized that there was a greater likelihood that preservation of the evidence would have enabled the defendant to exonerate himself than in Trombetta.   However, the court also distinguished the facts in Youngblood from those in Trombetta, pointing out that the state did not use the challenged evidence in its case in chief.   (Ibid.)  The court then discussed the relevance of good or bad faith by the state in this type of constitutional challenge.  “We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.   We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”  (Id. at p. 58, 109 S.Ct. at p. 337.)

Here, there is no evidence that the officer releasing the currency acted in bad faith.   Thus, the trial court properly denied appellant's motion to dismiss.   However, relying on U.S. v. Belcher (W.D.Va.1991) 762 F.Supp. 666, appellant argues Youngblood is inapplicable to the instant case.   In Belcher, the state destroyed the marijuana plants the defendant was being prosecuted for cultivating.   The Belcher court distinguished its facts from those in Youngblood, noting that in Youngblood the conviction was based on evidence independent of that which was lost while the testimony regarding the alleged marijuana plants was essential to the state's case in chief.   (Id. at p. 672.)   The Belcher court thus held where the state destroys evidence that is “absolutely critical and determinative” to the prosecution's case, the issue of whether the state acted in bad faith is irrelevant.

We disagree with Belcher and hold appellant to a threshold showing of governmental bad faith.  Trombetta, the case in which the bad faith requirement has its roots, featured use by the state of evidence of whose destruction the defendant complained was used by the prosecutor to secure the defendant's conviction.   The Trombetta court's analysis begins by noting that “In failing to preserve breath samples for respondents, the officers here were acting ‘in good faith and in accord with their normal practice.’ ”   (467 U.S. at p. 488, 104 S.Ct. at p. 2533.)  Youngblood did not purport to limit the reach of the bad faith requirement.   Adopting appellant's proposed exemption would be contrary to the Youngblood court's express refusal to apply, from prosecutorial disclosure cases, the rule that the government's state of mind is irrelevant.   We decline to read into Youngblood the limitations appellant urges.   We find no due process violation in the police's failure to preserve the currency for testing.

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 186.10, subdivision (a)(2), provides as follows:  “Any person who conducts or attempts to conduct a transaction involving a monetary instrument or instruments of a value exceeding five thousand dollars ($5,000) through a financial institution ․ (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity, is guilty of the crime of money laundering.   In consideration of the constitutional right to counsel afforded by the Sixth Amendment to the United States Constitution and Section 15 of Article 1 of the California Constitution, when a case involves an attorney who accepts a fee for representing a client in a criminal investigation or proceeding, the prosecution shall additionally be required to prove that the monetary instrument was accepted by the attorney with the intent to disguise or aid in disguising the source of the funds or the nature of the criminal activity.”

2.   Penal Code section 14166, subdivision (c), provides:  “Any person ․ (c) who, knowingly and with the intent either (1) to disguise the fact that a monetary instrument was derived from criminal activity, or (2) to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, conducts a monetary instrument transaction or series of transactions by or through one or more financial institutions as part of a scheme and with the intent to avoid the making or filing of a report required under Section 14162, shall be punished by imprisonment in the county jail for not more than one year or in the state prison, by a fine of not more than the greater of two hundred fifty thousand dollars ($250,000) or twice the monetary value of the financial transaction or transactions, or by both that imprisonment and fine.”

3.   As part of their legal requirements, banks process a currency transaction report, or CTR, for any cash transactions over ten thousand dollars, whether it be a deposit or withdrawal.   The banks also use the report to flag suspicious activity, such as recurring excessive deposits or withdrawals.   The report usually contains the customer's name, address, social security number, and account number, as well as the transaction amount, and the denomination amount for bills over one hundred dollars.

4.   Frye v. United States (D.C.Cir.1923) 293 Fed. 1013;  People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.

ELIA, Associate Justice.

COTTLE, Acting P.J., and PREMO, J., concur.