ID: Dog’s failure to alert when there is already PC does not per se show dissipation of the PC

Defendant admitted in his motion to suppress that the officers had probable cause when he was stopped after a dog alert, and that was binding on appeal. The preserved issue is whether probable cause dissipated with the failure of the dog to alert, and the court finds that it did not. That is only a factor in the totality of circumstances. State v. Anderson, 154 Idaho 703, 302 P.3d 328 (2012):

Other courts addressing the question have generally held that a drug dog’s failure to alert is only one factor to be considered in the probable cause analysis. For example, in United States v. Jodoin, the First Circuit held 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 by the magistrate.” 672 F.2d 232, 234-36 (1st Cir. 1982) (holding that police did not violate the Fourth Amendment by holding defendant’s suitcase for several days, even though a drug dog sniffed the suitcase but did not signal the presence of narcotics), abrogated on other grounds by Bloate v. United States, 130 S.Ct. 1345 (2010). 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 failed to 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. 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].”).