ID: Dog’s failure to fully alert does not dissipate probable cause already there

Where officers have probable cause already, the failure of a drug dog to alert does not per se dissipate the probable cause. State v. Anderson, 2011 Ida. App. LEXIS 29 (April 28, 2011):

We have located no decisions with the precise facts presented here; however, numerous cases discuss the impact on a probable cause determination of a drug dog’s failure to alert. These courts generally hold that a drug dog’s failure to alert is but one factor to be considered. 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” 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) (“[Defendant] relies on a line of cases holding that probable cause is established once a drug dog alerts on a package for the mistaken proposition that absent such an alert, officers are not entitled to detain the package any further. Contrary to [defendant’s] assertion, drug-detecting dogs have not supplanted the neutral and detached magistrate as the arbiter of probable cause.”); United States v. Frost, 999 F.2d 737, 744 (3rd Cir. 1993) (“When one includes both the fact that the drug sniffing dog did not alert to the suitcase and the fact that drug couriers often mask the scent of drugs in suitcases so that a drug sniffing dog will not alert, the failure to alert to the suitcase is not inconsistent with the substantial probative thrust of information which [the officer] did include [in the warrant].”).