Search & seizure; Motion to suppress; Whether a drug sniffing dog’s alert provides “probable cause” in a state that has legalized marijuana or hemp; Florida v Harris; United States v Santiago; Admission of texzt messages; FRE 404(b); Be on the Lookout (BOLO)

The court held that the district court did not err in denying defendant-Saine’s motion to suppress evidence found after a drug sniffing dog’s alert triggered a search of his truck. Under Harris, such an alert is presumptively sufficient for probable cause and the court concluded that “the fact that an officer—or a K9—could have merely smelled hemp or another legal cannabis substance does not necessarily negate probable cause.” Saine was convicted of FIP after a K9 alerted to an area of his truck and a gun was found in the truck. He first argued that the district court erred by denying his motion to suppress the gun seized from his vehicle. He claimed that Harris, the controlling case regarding canine searches providing probable cause, was inapplicable in a state such as Tennessee that has legalized hemp because dogs cannot distinguish between hemp and illegal marijuana. But the court noted that “probable cause determinations focus on probabilities, not certainties. Probable cause does not require officers to eliminate alternative innocent explanations.” Instead, it only requires “‘a probability or substantial chance of criminal activity, not an actual showing of such activity.’” The court also noted that it held in Santiago “that human officers smelling marijuana can provide probable cause for an arrest, even when certain types of cannabis are legal.” And Saine did not give it “a persuasive reason to distinguish Santiago here.” In addition, other factors supported a search of the truck, including a BOLO “indicating Saine was potentially involved in narcotics trafficking” as well as his presence in a motel known for its criminal activity. The court held that the officers had probable cause for the search. Saine also challenged the admission of text messages that revealed the presence of firearms at his home, claiming they were inadmissible under FRE 404(b). But the court found that the evidence was not admitted to prove that he possessed a firearm. The district court offered to give a jury instruction that the evidence was only to be considered as to “Saine’s ‘state of mind’ or what ‘he knew.’” Further, even if the court applied Rule 404(b), his “challenge would still fail.” Affirmed.