D.S.D.: A pre-Rodriguez delay didn’t warrant suppression despite the lack of reasonable suspicion

Defendant was stopped in an Eighth Circuit state governed by the former de minimus rule three months prior to Rodriguez, and it’s already been held that the old rule applies until that date. The district court finds the officer’s assertions of fact about reasonable suspicion to be essentially incredible. However, “the fruits of the search cannot be suppressed based upon the delay only.” The court reluctantly concludes that the dog alert was enough for probable cause and denies the motion to suppress. United States v. Johnson, 2016 U.S. Dist. LEXIS 62962 (D.S.D. Mar. 11, 2016), adopted 2016 U.S. Dist. LEXIS 62699 (D.S.D. May 12, 2016):

Here, the court pauses for an aside. Justice Kagan wrote for a unanimous Court in Harris that a generally reliable drug dog which alerts under circumstances indicating the alert is reliable provides probable cause for a search. Id. at 1056-57. But the record in this case is replete with evidence that Zara alerts not to the presence of actual drugs, but to the odor of drugs. If this were a fact that escaped the notice of the Harris Court, there might be room for this court to distinguish the Harris holding from this case.

However, the Harris opinion is replete with references to the fact that Aldo, the dog in that case, alerted only to the odor of drugs, just like Zara. See, e.g. Harris, 133 S. Ct. at 1058. But here is the nuance this fact raises that the Harris Court failed to acknowledge or discuss: If a dog is trained to indicate only to the odor of contraband, how can one conclude that an indication means the contraband itself is more probably than not present in that location? After all, it is not a crime to have the odor of contraband in one’s car and finding such an odor does not result in police obtaining evidence of a crime. Instead, it is only the possession of the contraband itself that gives rise to a crime and evidence of a crime. The Fourth Amendment requires probable cause of evidence of a crime.

However, this court is at “the bottom of the totem pole” in the federal judiciary. It is bound to follow decisions of courts above it. The Supreme Court has held that a reliable drug dog alert indicating the presence of the odor of drugs gives rise to probable cause for a search of the place indicated. This court is bound by that holding, even if it appears an oversimplification of the analysis.

. . .

No expert evidence was introduced on this subject in this case. The two witnesses who did testify disagreed with one another. Therefore, the court draws no conclusions from the fact that Zara alerted to cash, as opposed to some other item.

This court concludes Zara is generally reliable and her indication in this case was generally reliable. Therefore, her indication provided probable cause for the search of Ms. Johnson’s vehicle. Harris, 133 S. Ct. 1056-57. Finally, then, the court recommends that Ms. Johnson’s motion to suppress be denied in its entirety.