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.