©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
It is widely recognized by courts that a positive alert by a properly trained and certified police canine provides probable cause for a search of an automobile. However, does this mean, conversely, that the failure of a canine to alert on an automobile negates other factors that, taken in their totality, may amount to probable cause to believe contraband is present in an automobile? On April 28, 2011, the Court of Appeals of Idaho decided the State v. Anderson [i], in which the Idaho court addressed this issue.
In Anderson, a Cassia County deputy observed Anderson fail to maintain his lane of travel several times which caused other vehicles to swerve to avoid a collision. The deputy activated his lights but Anderson did not stop. The deputy then activated his siren, and Anderson continued about a block before stopping. During the stop, Anderson told the deputy that the van was not his but he did put the license plates, which did not belong to the van, on the vehicle. Anderson also admitted that he did not have insurance on the van and that he had pending charges in court for controlled substance sales and delivery. The deputy told Anderson to wait in the van while he wrote traffic citations.
As the deputy conducted the license and vehicle check and wrote the citations, he observed that Anderson was moving around a lot in the vehicle. Anderson then began to exit the van at which time, the deputy, based on the totality of the circumstances, believed that Anderson might be under the influence. The deputy conducted a frisk and called for a drug dog while he completed the citations.
While the deputy completed the citations, the canine unit arrived and conducted a free air sniff of the exterior of the vehicle. The canine indicated a positive alert. The canine was then placed in Anderson’s van and failed to alert on any particular location in the van. The deputy then searched the interior of the van and located a firearm, but no drugs.
Anderson was arrested for being a convicted felon in possession of a firearm under Idaho law. He filed a motion to suppress the firearm and the district court denied the motion. Anderson pled guilty with the right to appeal. He then appealed the denial of the motion to suppress to the Court of Appeals of Idaho.
The court of appeals, noting that this was a case of first impression for Idaho, stated that the issue was whether, under the totality of the circumstances, the drug dog’s failure to alert on the interior of the vehicle negated the previously existing probable cause and rendered the deputy’s subsequent search illegal.
At the outset, Anderson acknowledged that the initial alert on the exterior of the vehicle provided probable cause to search the vehicle. Rather, the crux of his argument on appeal was that the failure to alert on the inside of the van, negated probable cause and rendered the subsequent search illegal.
The court of appeals, noting that there is no similar case on point in Idaho, examined cases from other jurisdictions. Regarding the dissipation of probable cause, the court stated:
We have located cases discussing the general nature of dissipation of probable cause. In United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005), the court stated: If probable cause is established at an early stage of the investigation, it may be dissipated if the investigating officer later learns additional information that decreases the likelihood that the defendant has engaged, or is engaging, in criminal activity. . . . “As a corollary . . . of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988). [ii]
The court of appeals also noted that other courts around the country have examined whether the failure of a canine to alert on a vehicle or item negates probable cause to search the vehicle or item. The Idaho court noted that these other courts generally hold that “a drug dogs failure to alert is but one factor to be considered” regarding the probable cause analysis. [iii] Further, the court cited cases from Maryland and Kansas that both support the proposition that the failure of a canine to alert does not negate probable cause, but is rather one factor to be considered. Discussing those cases, the Idaho court stated
In McKay v. State, 149 Md. App. 176, 814 A.2d 592 (Md. 2002), officers possessed probable cause to search a vehicle for drugs. However, moments before beginning the search, a drug dog failed to alert to the presence of drugs. The Maryland court noted that a positive alert from a drug dog provides probable cause to search but held: “It does not follow from this settled proposition, however, that probable cause is dissipated by the dog’s failure to alert.” Id. at 598 (emphasis in original). The McKay court further held that a drug dog’s failure to detect the presence of drugs does not negate probable cause, but is one factor to consider in the probable cause determination. Id. at 599. State v. Sanchez-Loredo, 42 Kan. App. 2d 1023, 220 P.3d 374, 378 (Kan. Ct. App. 2009).
The district court also concluded that the failure of the drug dog to alert to possible contraband did not eliminate the probable cause that the facts of this case already supported, and we agree. See State v. Gonzales, 2004 WL 2085586, at *4 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 849 (2005) (failure of a drug dog to alert is only one factor to be considered in a probable-cause determination).
The court also noted cases from Florida and the Sixth Circuit Court of Appeals that have reached a similar conclusion that the failure to alert does not negate the probable cause from a prior alert. [iv]
The court of appeals then looked at the facts of Anderson’s case, in totality, to determine whether probable cause existed to support the search of the interior of Anderson’s van by the deputy. The court noted that Anderson was driving erratically, in an unregistered vehicle that he did not own, bearing fictitious license plates, without insurance. Further, the deputy had to use both lights and siren to get him to stop. Additionally, Anderson was moving around in the vehicle and failed to follow directions to stay in the vehicle. Anderson also admitted that he had pending charges for illegal drugs. Based on these facts, and the initial canine alert, the court of appeals held that the deputy had probable cause to search Anderson’s van, in spite of the fact that the canine failed to alert once placed inside the van.
Since probable cause supported the search of the van, the court upheld the district court’s denial of the motion to suppress the firearm that was found during the search. Specifically, the court stated:
The drug dog alert on the outside of the vehicle provided probable cause to search the interior of the vehicle. Given the totality of the information and circumstances available to the officers at the time, the drug dog’s failure to alert while in the vehicle, did not cause the loss of probable cause for the officers to search the vehicle. Anderson’s judgment of conviction and the district court’s order denying his motion to suppress are affirmed. [v]
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 2011 Ida. App. LEXIS 29
[ii] Id. at 10
[iii] Id. at 11 (citing “Illustrative of the cases is then–Judge Breyer’s opinion in United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982), which holds that a “dog’s failure to react does not . . . destroy the ‘probable cause’ that would otherwise exist. It is just another element to be considered.” Id. at 234-236 (holding that officers’ actions did not violate the Fourth Amendment when, supported by probable cause, they held defendant’s suitcase for several days, even though “a detector dog sniffed the suitcase but the dog did not signal the presence of narcotics”). See also United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003) (“We will not require investigators to cease an otherwise reasonable investigation solely because a dog fails to alert, particularly when we have refused to require that a dog sniff test be conducted at all.”); United States v. Gill, 280 F.3d 923, 926 n.3 (9th Cir. 2002) (denying defendant’s suppression motion although a drug “dog did not alert” [*12] and noting that drug dogs “are not trained to detect PCP or methamphetamine due to the risk these substances pose to the dogs”); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997)”.
[iv] Id. at 14-15
[v] Id. at 15 (see “State v. Siluk, 567 So. 2d 26 (Fla. Ct. App. 1990), a drug dog alerted to a bag of luggage in Houston, but after the bag was allowed to proceed to Orlando, a second drug dog failed to alert. The court held: “We do not accept the argument that the failure of the local narcotics dog to ‘alert’ to the luggage neutralized the probable cause flowing from [a prior] alert.” Id. at 28; cf. United States v. Guzman, 75 F.3d 1090, 1096 (6th Cir. 1996) (noting that a “dog’s interest in defendant Guzman’s bag” could be taken into account “when determining whether the totality of the circumstances established probable cause to seize [the] defendant”)”
[vi] Id. at 18-19