United States v Parada (577 F. 3d 1275 (2009) U.S. Court of Appeals Tenth Circuit)
Holding that “officers had probable cause to search the entire vehicle based on the dog’s alert to the front driver’s side door”
One of our early dog sniff cases assumed without deciding that the police had only reasonable suspicion until the dog “keyed,” i.e., indicated, the exact location of the drugs whereupon officers had probable cause to search. United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1984). The precise issue raised by Mr. Parada was not before the court in Stone, however, and our later cases have not distinguished between a general alert and a pinpoint indication for the purposes of the probable cause analysis.
In a recent case, United States v. Forbes, we noted the distinction between an alert and an indication but phrased the rule in terms of the former: “a canine’s alert to the presence of contraband during an exterior sniff of a vehicle gives rise to probable cause for agents to search that vehicle’s interior.” 528 F.3d 1273, 1277 (10th Cir. 2008). Similarly, in United States v. Williams, 726 F.2d 661, 663-64 (10th Cir. 1984), although from the facts of the case it appears that the dog provided a final indication by scratching and biting at the suspect piece of luggage, we noted only that “a drug sniffing dog’s detection of contraband in luggage itself establishes probable cause.” (quotation marks and alteration omitted).
In Forbes, the dog “alerted to the presence of a controlled substance by changing her posture and by increasing her respiration. As the agent moved the dog around the front of the tractor, she continued to alert and finally stopped and `indicated’ the presence of contraband at the driver’s side door by using a pinpoint stare.” Id. at 1275.
Our other dog alert cases do not specify whether the dog’s response was a general alert or a final indication; we have simply noted that the dog’s “alert” provides probable cause. See, e.g., Ludwig, 10 F.3d at 1525 (dog’s “alert” to the trunk indicated the presence of illegal drugs and provided probable cause); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994) (dog’s “alert” to vehicle provided probable cause to arrest occupants and search vehicle).
Thus, the general rule we have followed is that a dog’s alert to the presence of contraband is sufficient to provide probable cause. We decline to adopt the stricter rule urged by Mr. Parada, which would require the dog to give a final indication before probable cause is established. “Probable cause means that `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” Ludwig, 10 F.3d at 1527 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). A trained narcotic dog’s detection of the odor of an illegal substance emanating from a vehicle creates a “fair probability” that there is contraband in that vehicle. See Id. (“[A] dog alert usually is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a `fair probability’ that there is contraband.”). We hold that probable cause was satisfied by Rico’s alert to the odor of an illegal substance in the vehicle and that it was not necessary for the dog to indicate the exact source of that odor. Indeed, it might be dangerous to permit a narcotics dog to pinpoint the location of the drugs in certain circumstances, such as here, where the vehicle’s occupants were still inside and the dog was trained to indicate by barking, scratching, and biting at the source of the odor.
This case clarifies and separates the K-9 “alert” from the K-9 “final response.” There are situations where your K-9 will “alert,” however he cannot go into a “final response.”
The classic example is a high find. The K-9 will have a very demonstrative “alert”; however he cannot go into a “final response,” as he cannot get to source.
This case illustrates another example where the K-9 will “alert,” however he did not go into a “final response,” as the dog could not get to source.
SWGDOG’s (The Scientific Working Group on Dog and Orthogonal detector Guidelines) “best practices” define:
A characteristic change in ongoing behavior in response to a trained odor, as interpreted by the handler. The components of the alert may include: Change of behavior (COB), interest, and final response or indication.
Operational usage: A behavior that a dog has been trained to exhibit in the presence of a target odor source. This behavior may be either passive (sit, stare, down, point, etc.) or active (bite, bark, scratch, etc.).