The 11th District Court of Appeals (Eastland) issued an opinion earlier this month affirming the use of open air sniff searches by canines. In Johnson v. State, the defendant Michael Johnson was convicted of possession of a controlled substance and sentenced to two years in a state jail facility and a $3000 fine.
Johnson was stopped for running a stop sign. A back-up officer arrived on scene with “drug-detection dog.” Without any suspicion that Johnson possessed any drugs, the officer conducted an open-air search around the exterior of the vehicle and the dog alerted on the driver’s side door of the vehicle. Based on the hit, the officer searched the vehicle and found a crack rock, spoon with crack residue and an open container of an alcoholic beverage.
In regard to the lawfulness of the drug-detection dog search, the court relied heavily on Illinois v. Caballes, 543 U.S. 405 (2005). In Caballes, the Supreme Court held that, “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”
So, what’s the take-away? A canine sniff search of the exterior open air of a vehicle does not violate the Fourth Amendment or the Texas Constitution for that matter.
Practice Point: It can be argued that the use of a drug-detection dog involves specialized knowledge requiring the testimony of an expert. If you are going to use this argument make sure and request the notice for expert testimony at a pre-trial hearing and, if necessary, request a separate hearing on expert testimony (A rule 702 hearing). Also remember, the Texas Code of Criminal Procedure requires the State give notice of all expert witnesses twenty days prior to trial.