(concurring in part and dissenting in part).
[¶ 37.] I concur on issue I. I respectfully dissent on the second issue and would find the trial court erred in finding probable cause to search.
[¶ 38.] The problem here is that the trial court did “sort out” the testimony and concluded that the drug dog’s alert at the car doors was sufficient for probable cause irrespective of the expert and dog handler’s testimony. Their testimony indicated that in order for the officers to rely on the dog to establish probable cause, the dog needed to “indicate.” A mere “alert” was insufficient to find probable cause. According to the testimony, only the dog’s handler knows for sure whether his dog smells drugs because he is familiar with his dog’s idiosyncrasies. For Crockett, an “alert” was only a precursor to coming into a full “indication” of the presence of drugs. It was at the trunk that the dog handler determined Crockett fully “indicated” — not at the doors. The court, however, was not convinced of the indication at the trunk.
[¶ 39.] Drug dogs are not 100% accurate and are fallible. We should, at least, require the state to present evidence of the dog’s clear indication of smelling drugs before approving of the search. In other situations, we require an accurate calibration of technical devices in detecting alcohol or illegal substances. Similarly, we should also require the necessity of a clear indication from a drug dog before finding probable cause to search.
[¶ 40.] The trial court’s finding that the dog’s reaction at the doors presented probable cause is contrary to the testimony and clearly erroneous and should be reversed.
[¶ 41.] SABERS, Justice, joins this special writing.