On the totality of the evidence, recognizing that dog sniffs can be unreliable (see quote), the court finds this one reliable. Also, there isn’t much difference here between a dog “alert” and an “indication.” United States v. Herbst, 2017 U.S. Dist. LEXIS 215470 (N.D. Iowa Dec. 21, 2017):
Herbst also argues the circumstances surrounding Odin’s sniff of Herbst’s vehicle further demonstrates his lack of reliability. In particular, he argues Odin was hot, excited from Herbst’s arrest, and not focused on the narcotics sniff. He also argues that Odin did not alert because the alert cannot be seen on the video and Officer Noltze’s testimony should not be believed based on the language he used. The circumstances surrounding a particular sniff may render that search unreliable. See United States v. Heald, 165 F. Supp. 3d 765, 771-72, 778-79 (W.D. Ark. 2016) (finding a sniff unreliable when, among other factors, the K-9 was distracted and affected by heat, and “law enforcement’s actions during and after the open-air drug sniff illustrate[d] the uncertainty of whether [the K-9] alerted at all, and if he did, whether the alert was reliable”).
. . .
In Pauley’s experience, an “alert” and “indication” have the exact opposite meanings as compared to the testimony of Officer Noltze and Morgan. To him, an alert is the final step and involves a definite change in behavior where the K-9 bites or scratches at the odor source (if an aggressive-alert K-9) or sits (if a passive-alert K-9) (what Officer Noltze and Morgan described as an indication). An indication, in Pauley’s experience, is a lower-level response (what Officer Noltze and Morgan described as an alert). In Pauley’s training and experience, a dog that detects narcotics will do everything possible to give a final alert (or indication, according to Officer Noltze’s and Morgan’s terminology), which in this case would have been to sit. This is because, in Pauley’s experience, narcotics dogs learn they receive their reward only when they provide their final, trained response. Morgan provided similar testimony about a narcotics dog wanting to do what is needed to receive its reward.
I understand Herbst’s concern with the terminology used in this case. Although words can matter, I do not believe that the use of the term “alert” versus “indicate” affects Odin’s reliability in this case. Either term refers to a specific, trained response for Odin. I, likewise, do not believe the facts of this case are analogous to Jacobs, in which the narcotics dog “had not given its trained response when confronted with a package containing drugs, coupled with the dog handler’s admission that he could not say with certainty that drugs were in the package.” Jacobs, 986 F.2d at 1235. In this case, Officer Noltze provided unequivocal testimony that Odin alerted but did not give a final indication while inside the vehicle, and he did not alert or indicate during the subsequent exterior and interior vehicle sniffs. Morgan believed that Odin alerted based on Officer Noltze’s description that Odin moved toward the area, pawed at the location, and most significantly, possibly drooled. According to Morgan, that drooling (which demonstrates anticipation) provides clear evidence of an alert because it is an uncontrolled response that cannot be provoked by the handler, nor faked by the K-9. He likened this drooling to a Pavlovian response and explained it is developed during narcotics training where the K-9 learns that it will receive its reward if it finds narcotics.
I have concerns about Odin’s alert, based primarily on the short duration he was inside the Toyota, his apparent distraction during that search, and his disinterest in continuing to search the vehicle. These factors call into serious question the reliability of his reported alert. I believe the testimony from Morgan and Officer Noltze, in addition to Odin’s training records, demonstrate that Odin did not provide a final indication because of the small space inside the vehicle, and because (as Officer Noltze testified) doing so would have moved his nose farther away from the odor. The final issue, therefore, lies in whether to credit Officer Noltze’s testimony that Odin alerted while in the front seat. I have considered each of the issues discussed above, in addition to my observations of Officer Noltze while he testified. As with Detective Grimsley, there is no indication that Officer Noltze has provided false information in the past or has other credibility issues. His testimony was unwavering, and he candidly acknowledged Odin’s flaws. For these reasons, I credit his testimony about Odin’s alert while inside the Toyota. I believe this finding is further supported by additional evidence. After he finished the vehicle search with Odin, Officer Noltze spoke with Detective Grimsley and immediately began searching the vehicle. Detective Grimsley testified that he understood Odin had alerted for narcotics in the back seat of the Toyota. See note 9, supra. Both he and Sergeant Hoogendyk assisted Officer Noltze in searching the Toyota. There is no indication that Officer Noltze was hesitant or uncertain whether Odin had alerted inside the Toyota. Ultimately, although I question some of the circumstances surrounding Odin’s search at the scene, I believe the overall testimony explains Odin’s actions and provides an understanding for the significance of what occurred during that sniff.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)