E.D.Tenn.: Drug dog’s failure to alert does not nullify PC that already exists

Defense counsel was not ineffective for not moving to suppress the search of the car defendant was riding in because there was probable cause for the search. While drug dog was called in and did not alert, this does not nullify PC that already exists. Holt v. United States, 2010 U.S. Dist. LEXIS 9300 (E.D. Tenn. February 3, 2010):

Holt also argues that Trooper Osborne had no right to walk his drug sniffing canine around the Holt vehicle on March 29. Holt offers no legal support for his contention and none exists. Holt does not argue that Trooper Osborne detained the automobile and its occupants longer than was reasonably necessary; he instead argues once again that the videotaped evidence shows that the dog “did not hit on anything.” Even if Holt were correct, this is also irrelevant because the Trooper already had probable cause to search the automobile based on the odor of marijuana he detected when he first approached the automobile. Given that probable cause already existed, it is unclear why the canine was even employed, unless it was to confirm what the officer already had sufficient reason to believe. In any event, the failure of the dog to alert would not negate or destroy the probable cause that already existed. See United States v. Davis, 430 F.3d 345 (6th Cir. 2005).