Page:Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607.pdf/21

 court should be affirmed in its finding that the alert provided probable cause for the search. As the majority notes, Corporal Behnke testified that Major made a profound alert to the point that he was choking himself on his collar. I agree that Major's certification, combined with Corporal Behnke's testimony about the alerts made by Major, satisfy the requirements under the Fourth Amendment. With respect to the use of dogs for various purposes, the United States Supreme Court has stated as follows:

"Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. [United States v.] Jacobsen, 466 U.S. [109] [, 123] [(1984)]. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable." Id., at 122, 104 S.Ct. 1652 (punctuation omitted). In United States v. Place, 462 U.S. 696, (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item.""

Illinois v. Caballes, 543 U.S. 405, 408–09, (2005). Distilled to its essence, the idea set forth by the United States Supreme Court is that no one is harmed by the use of a canine except those who have contraband, so there is no just cause to object to the use of the canine. I am not convinced that this approach comports with the average person's understanding of liberty. The ability to go about one's business without official interference is a core element of liberty. The rule at present with respect to traffic stops is, that if a canine can be obtained prior to completion of the traffic stop, the dog can carry out a sniff with or without the vehicle driver's and passengers' consent. How these issues might be resolved if they were properly raised below in the circuit court, ruled on, and developed before this court under the Arkansas Constitution remains to be seen.