Like in Johnson and Darring , the odor coupled with other evidence may establish probable cause. Or like in Holley and Ogburn , there may be circumstances that undermine the otherwise strong inference of implied criminal activity—such as a lack of information about law enforcement's relevant training or experience in identifying and distinguishing a particular odor, Holley , 899 N.E.2d at 35 ; seeEdwards v. State , 832 N.E.2d 1072, 1080 n.11 (Ind. Ct. App. 2005) (recognizing that that detection of the smell of marijuana must be "by a trained and experienced police officer" to "support probable cause"); cf.Neuhoff v. State , 708 N.E.2d 889, 891 (Ind. Ct. App. 1999) (finding that a drug-sniffing dog's alert "was sufficient in itself" to establish probable cause when the search-warrant affidavit detailed the dog's relevant qualifications, experience, and training); Rios v. State , 762 N.E.2d 153, 159–60 (Ind. Ct. App. 2002) (same); Hoop v. State , 909 N.E.2d 463, 471 n.7 (Ind. Ct. App. 2009) (same), trans. denied . And this lack of information is particularly concerning in cases where detection of an odor is the only information in the affidavit "constituting probable cause." I.C. § 35-33-5-2(c).
The alert of a dog trained to detect narcotics, however, is by itself sufficient to provide the probable cause necessary to obtain a search warrant to open a package. See Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App. 1999). Additionally, smell testing by a trained dog is not a search within the meaning of the Fourth Amendment.
Second, Ross v. Lowe , 619 N.E.2d 911, 914 (Ind. 1993), was a negligence action in which the Indiana Supreme Court discussed the standard of care owed to invitees for preventing injury from a dog kept on the property. Third, in Neuhoff v. State , 708 N.E.2d 889, 891 (Ind. Ct. App. 1999), the Indiana Court of Appeals held that a probable cause affidavit that relied on the alerting of a drug sniffing dog was sufficiently reliable to establish probable cause. Not only do these cases not relate specifically to bloodhound tracking evidence, but none of them even deal with the admissibility of evidence at all.
The subsequent dog sniff provided probable cause that the vehicle contained illicit drugs. Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App. 1999); Kenner v. State, 703 N.E.2d 1122, 1125 (Ind.Ct.App. 1999). It is well settled that a dog sniff is not a search protected by the Fourth Amendment.
While an open-air sniff by itself does not necessarily provide law enforcement with probable cause, our Supreme Court has held that a sniff and subsequent alert following the initial suspicion of contraband can provide law enforcement with probable cause to believe a vehicle contains illegal drugs. State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010); see also Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999). [17] The drug-sniffing dog's open-air sniff and alert combined with the knowledge that Eminger was ready and willing to engage in a transaction for controlled substances, that Eminger was aggressive and resistant to law enforcement's commands, and that the vehicle was stolen established the requisite probable cause to invoke the automobile exception.
Id. Moreover, both this Court and the Indiana Supreme Court have held that dog sniffs are sufficient to establish probable cause. State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind.2010) (citing Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App.1999) ); Perez v. State, 981 N.E.2d 1242, 1251 (Ind.Ct.App.2013) (citing Neuhoff, supra ), trans. denied.
Furthermore, a K–9's indication of the presence of narcotics in a vehicle is sufficient in itself to support the issuance of a search warrant. Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App.1999). The court thus had a substantial basis to issue the search warrant, and the officers' subsequent search of VanDeVanter and his SUV did not violate the Fourth Amendment.
See State v. Spillers, 847 N.E.2d 949, 958 (Ind. 2006) (after careful examination of existing case law, Court determined informant's statements were not against penal interest, but that officers relied on warrant in good faith; officers need only a reasonable knowledge of the law and are not required to do extensive legal research before obtaining a warrant). Hoop briefly challenges the dog's qualifications; however, the information provided in the affidavit is similar to affidavits we found sufficient in Rios v. State, 762 N.E.2d 153, 159-60 (Ind.Ct.App. 2002) and Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App. 1999). CONCLUSION
I would emphasize that, in my opinion, the most important principle in this case is, "The determination of what constitutes a substantial step is left to the province of the jury." Neuhoff v. State, 708 N.E.2d 889, 893 (Ind.Ct.App. 1999). Our criminal attempt law allows "some preventive action by police and courts to stop the criminal effort at an earlier stage, thereby minimizing the risk of substantive harm without providing immunity for the offender." Zickefoose v. State, 270 Ind. 618, 622, 388 N.E.2d 507, 509 (1979).
Several cases from across the country suggest that such a probable cause affidavit is insufficient and require law enforcement to provide information about the dog's training, experience, and reliability. See, e.g., United States v. Jackson, 2004 WL 1784756, at *3 n. 1 (S.D.Ind. 2004) (indicating that sufficiency of probable cause affidavit could be questioned where it provided only "minimal information about the reliability of the dog," including his certification and experience, but not information regarding false positive alerts); Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App. 1999) (finding sufficient a probable cause affidavit that included information about the dog's recertification, experience, and specialized training). Our conclusion that the motion to suppress was properly granted in this case is not a novel departure from the precedent of the United States Supreme Court, by which this Court is bound under Article I, Section 12 of the Florida Constitution, and its legacy of heightened protection of the home.