[00:00:00] Speaker 02:
This case is 25-8055, United States versus Ostrotag.

[00:00:05] Speaker 01:
May it please the court, Paran Tranjo on behalf of the appellant, George Ostertag. This case involves the question of whether the roadside deployment of a drug detection dog constitutes a Fourth Amendment search under the Supreme Court's property-based and reasonable expectation of privacy tests. Under either test, the deployment of canine Bucky around Mr. Ostertag's car was a search. I plan to start with our argument under Cabias.

[00:00:31] Speaker 01:
Canine Becky's deployment constituted a search under Illinois' B. Coppias because her sniff is capable of detecting lawful activity, namely the possession of non-contraband substances that smell the same as their illegal counterparts. Because she can alert to non-contraband, her deployment invades drivers' reasonable expectations of privacy in the lawful possession and transportation of these substances in their vehicles.

[00:00:54] Speaker 01:
Almost all police conduct requires a minimum level of suspicion. It depends on the nature of the intrusion, but frisks, you need reasonable suspicion. A search of a car, you need probable cause. Search of a house, you need probable cause and a search warrant.

[00:01:08] Speaker 04:
So would this mean that a drug dog can't be used in Colorado? No.

[00:01:12] Speaker 01:
No, Your Honor.

[00:01:17] Speaker 01:
Whether something is a search and whether a search is reasonable, these are questions that depend on federal law, and that's why we've focused on the federal legalization of hemp and the federal legalization of these substances. So, no, it doesn't turn on state law, just to be clear.

[00:01:34] Speaker 02:
Our dog sniff cases are pretty categorical, and, you know, the rule... the rule you're proposing, basically, explain to me how to distinguish our Tenth Circuit precedent on that. And it seems like your position would be that a drug, unless dogs can be sniffed or trained to tell the difference between hemp and marijuana and methamphetamine and its ingredients, It seems like at least drug sniffing would be out the window.

[00:02:16] Speaker 01:
So I wanted, there are two parts to that question. First, we're not saying that drug dogs can't ever be used. We're saying that all we're asking is whether their use constitutes a search and thus implicates any part of the Fourth Amendment. Right now, under Cabias, there's a narrow carve-out that they don't because they they don't reveal the presence of non-contraband. And Carbout, excuse me, Cabias is a very narrow Carbout. And we're saying because canine Becky doesn't fit in that Carbout anymore, she can detect lawful substances.

[00:02:47] Speaker 01:
And so she doesn't fit into that narrow Carbout. And so her sniffs implicate the Fourth Amendment. That could, this court could... Is that because she touched the car or... Oh, that's a, sorry, that's a separate.

[00:02:58] Speaker 02:
That's your Jones argument.

[00:02:59] Speaker 01:
Yes, that's our Jones argument. So this one is just about what she is capable of detecting. And because she's capable of detecting non-contraband, under Cabias, a plain reading of Cabias, she doesn't fit into that narrow carve-out. And so the officers need some suspicion. They, you know, this court doesn't have to decide this question in this case, but they either need reasonable suspicion or probable cause because her sniff is a search under the Fourth Amendment, under a plain reading of Cabias.

[00:03:27] Speaker 04:
So, let me ask you this. So, I mean, I guess if we had an expert drug dog handler, they would probably agree that any dog is capable of a false positive. Is that fair? Yeah.

[00:03:47] Speaker 04:
I mean, so all dogs are capable of alerting to non-contraband.

[00:03:53] Speaker 01:
No.

[00:03:54] Speaker 04:
I'm sure they are. If it's a false positive, if they alert and there's nothing there, that's a false positive, and you've then conducted a search of someone's legal items.

[00:04:08] Speaker 01:
Let me explain what I mean.

[00:04:13] Speaker 01:
a dog that is giving a false positive is still only trained to detect contraband. It's making a mistake, and that's kind of the probable cause inquiry is we know that sometimes they make mistakes, and that's okay because probable cause only requires a fair probability. But in canine Becky's case, she's actually trained, because she can't differentiate between these smells, she's actually trained and therefore designed to to detect non-contraband. And so unlike the dog who is only trained to detect contraband and makes a mistake, she is actually trained to detect non-contraband, and thus she doesn't fall into Tobias's narrow carve-out.

[00:04:50] Speaker 04:
Was there any evidence that dogs can be trained to alert to marijuana but not to hemp?

[00:05:01] Speaker 01:
Oh, yes, yeah. Detective, or excuse me, I keep doing that. Kenneth Furtin testified that he, in his study, dogs could be proved off of hemp and that it's possible. But on this record, Kane on Becky was not proved off of hemp, and the district court found she can't distinguish between those smells. So that's actually a good question for whether there's a slippery slope here. I think the answer is no, because dogs probably can be trained to differentiate, it's just that canine Becky was not.

[00:05:31] Speaker 04:
What about fentanyl?

[00:05:36] Speaker 04:
I've known people who were prescribed fentanyl for cancer patients and stuff, and they possessed it legally, presumably.

[00:05:49] Speaker 04:
Can a dog be, was there any evidence about whether a dog could be trained off of prescription fentanyl?

[00:05:56] Speaker 01:
Not in this case. So in this case, the government conceded that K-9 Becky can't differentiate between the two. But it seems plausible to me on a different record, another dog potentially could be, depending on the quantities in the prescription versus, you know, the pills that people possess illegally. I think that that record could be made, but it wasn't here. And K-9 Becky, she cannot distinguish between the two.

[00:06:22] Speaker 04:
Okay. So...

[00:06:25] Speaker 04:
What about, there is some testimony based on handler experience in this case that the handler testified that he had extensive experience and that he'd never seen a dog alert to a legal substance.

[00:06:45] Speaker 01:
So the district court didn't rely on those findings, or excuse me, didn't rely on that testimony, and it didn't find that it's completely impossible, or you know, it didn't say there's almost zero likelihood. And so I don't think that's a finding this court should make. But also I think that testimony is itself pretty useless because the officers didn't testify that they actually had been looking for that type of material. The record evidence says that hemp looks very similar to marijuana, if not identical.

[00:07:18] Speaker 01:
And so when they say we never found hemp, well, okay, they don't test it at the roadside. And so who really knows? And hemp was only legal for three years out of the 31 and 10 year long careers of these two that testified they'd never found it so I don't know that doesn't say very much so the district court didn't find that and I don't think this court should in the appellate posture either when the dog alerted we don't know what it was alerting to whether it was marijuana or meth or fentanyl or something else do we I mean it alerts yeah Yeah, I think that's actually what makes it a search under Kylo, because the dog can't say what it is smelling, and it can't differentiate and say, okay, this one's definitely contraband.

[00:08:07] Speaker 01:
It can't tell it. And so that was the same as the thermal imager in Kylo. The officers didn't know whether it was picking up the lady taking her nightly sauna or a marijuana grow operation. They had to make an additional guess. That's true here, too. The officers have to make a guess. And it's still the fact that she can do it, just like the thermal imager can not differentiate and can detect lawful activity, that's what makes it a search. So I think that actually contributes to why this is a search.

[00:08:41] Speaker 01:
Turning to, oh, excuse me.

[00:08:43] Speaker 02:
Did someone? Yeah, tied to Jones.

[00:08:46] Speaker 01:
Mm-hmm.

[00:08:48] Speaker 01:
Okay. So our second argument is that K-9 Becky, her sniff was a search because she jumped on the car and therefore trespassed on a constitutionally protected effect under Jones for the purpose of gathering information.

[00:09:05] Speaker 01:
The district court, we think, correctly resolved this issue and found that her jumping on the car was a Fourth Amendment search under the court's trespass test.

[00:09:17] Speaker 01:
So each of Jones' elements are met here. There was a physical trespass on a constitutionally protected effect for the purpose of gaining information.

[00:09:26] Speaker 01:
A car is indisputably a constitutionally protected effect, and we know that from Jones. There was a physical trespass. K-9 Becky jumped on the car, and she scratched it.

[00:09:37] Speaker 01:
Jumping alone would be sufficient under Jones. Jones specifically says we don't need damage in order to find a trespass.

[00:09:44] Speaker 01:
It was volitional, non-incidental, and uninvited.

[00:09:48] Speaker 01:
But here we have damage, and that confirms both that there was a trespass, and it also distinguishes this case from others where there's fleeting contact.

[00:09:56] Speaker 02:
Didn't the district court, though, find that the doc had alerted before she touched the car? Yes. Doesn't that alter the trespass analysis? In other words, do we have to buy your Caballos argument first, and then we get to the Jones argument? They're linked for purposes of your argument.

[00:10:19] Speaker 01:
Let me be clear. So the Caballos argument is completely separate. So her entire deployment under Caballos, regardless of whether she alerted, was a search.

[00:10:29] Speaker 01:
then with respect to our trespass argument, you're right that if you agree with the district court that she alerted before she jumped on the car, you don't need to reach our trespass argument. And that's true. But you would still need to reach our cabias argument because it's completely separate and not affected by the alert.

[00:10:47] Speaker 04:
Let me ask you a question about jumping on the car in and of itself.

[00:10:53] Speaker 04:
It seems like the cases where the car has been touched and that there's been a trespass, that the touching was part of the sniff, i.e., the dog had to touch the car in order to get the good sniff.

[00:11:14] Speaker 04:
Do we have any evidence here that the dog's touching of the car was more than just excitement, that it had to be up touching the car to get the evidence?

[00:11:23] Speaker 01:
Yep. The district court found, as a matter of fact, that it did jump up. She jumped up because she's short and needs to get higher to smell. And it found that she actually gained information from that because she then did her final indication.

[00:11:36] Speaker 04:
So we have findings that the governor... How about this? If the dog had jumped up and not touched the car... If it just went like this? Yeah.

[00:11:43] Speaker 01:
Well, it didn't touch the car, so there's no trespass.

[00:11:45] Speaker 04:
Okay.

[00:11:46] Speaker 01:
Yeah. But if it touches the car for purpose of gaining information, then there's a trespass. And it's a simple test. So the dog, if it doesn't actually touch the car, that's fine. That's what Jones requires.

[00:12:01] Speaker 01:
So the government could get a bigger dog. It could train her not to jump up on it. These are pretty simple things.

[00:12:08] Speaker 03:
Dogs are like kids.

[00:12:14] Speaker 01:
Yeah, I think I will save the remainder of my time for rebuttal if the court doesn't have further questions. Thanks. Thank you.

[00:12:29] Speaker 00:
May it please the court? My name is Christine Martins, and I represent the United States.

[00:12:34] Speaker 00:
So the United States is asking that this court affirm the district court's denial of Mr. Osterteg's motion to suppress. And as to the dog issue, there's really three questions.

[00:12:44] Speaker 00:
And we're asking this court to hold fast in that a sniff is not a search, to affirm the district court's determination that Becky alerted before she touched the car, and only if it reaches the trespass issue to hold that touching the car was not a trespass within the meaning of the Fourth Amendment. I think our sniff issue is probably one of the most important issues out of the three, so I'll start there. And there's really two primary reasons that the sniff is not a search. First, the United States Supreme Court said so in bright-line cases.

[00:13:17] Speaker 00:
And second, the legal landscape and the practical realities have not changed such that this court should do anything other than apply those bright-line cases.

[00:13:28] Speaker 00:
Now, as I understand Mr. Ostertag's argument, he's asserting that because Becky is capable of alerting to lawfully possessed hemp, then there's essentially a reasonable expectation of privacy in the odor of THC. But I think that that argument that focuses on the mere capability of the dog, the mere possibility of such an alert, leads to absurd results. And I also think that this speaks directly to the reply in which Mr. Ostertag argues that we have conflated, both us, the district court, and the Seventh Circuit and Plancard, have conflated the search question with that question of the fallibility of dogs.

[00:14:08] Speaker 00:
But it makes sense. good sense when we're exploring the reasonable expectation of privacy to talk about the success rate of dogs. And the logical fallacy here has to do with that focus on the mere possibility as creating that reasonable expectation of privacy. And I think there's an example in this record that drives the point home. The government's expert witness at page 25 in volume 2 testified that as a private individual engaged in training drug dogs, he has a DEA license to possess all of the target odors.

[00:14:44] Speaker 00:
So he has a license to possess methamphetamine, heroin, cocaine. And I don't think anybody would argue that the mere possibility of the lawful possession of those substances creates some sort of reasonable expectation of privacy in the odors of those substances.

[00:15:00] Speaker 00:
And We would say, I think, in response to such an argument, that the possibility of coming across that lawfully possessed substance doesn't convert it from contraband to non-contraband, and that the possibility of finding a licensed dog handler in a roadside stop is vanishingly small. So there's no reasonable expectation of privacy. But that's the logical link here that we get to when we start talking about those probabilities. And that's why it makes sense for the district court and for the Seventh Circuit and PlanCart to start talking about those error rates in dogs and the Fourth Amendment's forgiveness for the error rates in dogs.

[00:15:37] Speaker 00:
It's not conflation of the probable cause inquiry with the search inquiry. It's recognition of the real-life circumstances that we're working with on the ground.

[00:15:49] Speaker 00:
Simply stated, the legalization of hemp, though hemp contains THC, does not create a reasonable expectation of privacy in the smell of THC or in marijuana. Marijuana still remains fundamentally contraband.

[00:16:05] Speaker 00:
So because marijuana remains fundamentally contraband, just as methamphetamine, heroin, cocaine, and fentanyl in the context of a roadside stop, those things are all fundamentally contraband. And Judge Carson gave the example of the lawful possession of fentanyl by someone to whom it's prescribed. Now, Rob Havis, the government's expert witness, the second time that he testified towards the end of the transcripts, I don't recall the page number off the top of my head, but I do believe it's cited in our brief.

[00:16:36] Speaker 00:
He testified that when they were training dogs on fentanyl, that they didn't use the prescription grade things like patches and lollipops because the experts told them that those doses were so small, the dogs would never alert to them. And consistent with that, The law enforcement witnesses in this case testified that they had never seen any of those lawfully possessed substances in the field. And I think that bears out here also with hemp, because I think that hemp is probably the more realistic example where you might find a, lawfully possessed piece of hemp in the field, but even the record here shows that the odds of that are extraordinarily small.

[00:17:17] Speaker 00:
The government's witness, Dr. Ken Furtin, testified about his small-scale study that had not yet been peer-reviewed and finding that it was possible to proof drug dogs off of hemp. But in that study, only about half of drug dogs showed any interest in or alerted to. He did not differentiate between interest and an alert. There was plenty of testimony about interest being different than an alert, but only about half of them would show interest in or alert to hemp. But that was not hemp products.

[00:17:48] Speaker 00:
It was only the bud of the hemp plant itself. And I think that it's worthwhile in noting that's not commonly how folks possess hemp, is the bud itself. And it's basically indistinguishable from the part of the marijuana plant that smoked. So I think for perspective, it's helpful to think that If there was a hemp bud on the passenger seat of the car during a traffic stop in plain view, that would be probable cause to search the car because it's visually essentially indistinguishable from marijuana and the portion of the plant that smoked.

[00:18:21] Speaker 00:
But even so, in that very narrow circumstance, again, all of the law enforcement witnesses in this case testified that they'd never seen such a thing in the field.

[00:18:31] Speaker 02:
What do our cases require for finding of reliability You know I hear you saying well, we don't expect a hundred percent. You know no no false Positives, but you know what's deemed a reliable reliably trained?

[00:18:49] Speaker 00:
Dog in this circuit certainly honor so first and foremost the certification is the gold standard for reliability and And so courts are loath to get into a statistical analysis of the drug dog's field performance for a variety of reasons, and that's because residual odor. There is plenty of testimony in this record about how residual odor can work. It means all the dog can tell you is it smells the odor of contraband, not the quantity, placement, or even if the contraband has been someplace and gone.

[00:19:22] Speaker 00:
Think about stepping onto an elevator Smelling someone's strong cologne even though they're not in the elevator. That's how it works for the dog. So the dog very much may alert in the field and Spell the odor of contraband even though it's never located due to a poor search or the fact that the contraband has been moved So that field data is not great and we acknowledge that in Ludwig But in Ludwig even looking at the field data this court said 58% was more than good enough now in this case the defense undertook an extensive evidentiary hearing into the reliability of canine Becky.

[00:20:00] Speaker 00:
And it was five days where we looked at 13 traffic stops, and out of those 13 traffic stops, five of them resulted in no seizure of a measurable quantity of drugs, which puts Becky's field performance at approximately 61%, which is above what this court said was acceptable in Ludwig, But I think it's also fair to point out on Becky's very first deployment, Trooper Martinez did not call the alert. And later at the hearing, he testified that he failed his dog. He read her wrong.

[00:20:31] Speaker 00:
And reviewing that later, he believed that she had, in fact, alerted. And Mr. Trooper Martinez is a relatively inexperienced canine officer also in the course of this evidence.

[00:20:43] Speaker 00:
So when that man was pulled out of the car at that traffic stop, He was pulled out of the car because he had an arrest warrant, and he was searched incident to arrest, and there was drug paraphernalia on his person. So I don't know that it's even fair to say that that stop didn't result in something seizable with a clear source of drug odor. And if you don't count that stop as a failure, then Becky's field performance is 70-ish percent. But anyway, she's always passed certification and even double-blind testing post-Mr. Ostertag's stop with the Wyoming High Patrol.

[00:21:19] Speaker 00:
So there's really no suggestion that she's not accurate, more than accurate, under this court's case law, both including Harris and Ludwig.

[00:21:28] Speaker 03:
Well, in your recitation about...

[00:21:33] Speaker 03:
the hemp and the analysis that your experts gave, are they saying that the incidence of hemp in a stop is sufficiently rare that the alert is going to be to marijuana?

[00:21:56] Speaker 00:
Yeah, I think that's a fair way to summarize it, Your Honor.

[00:21:57] Speaker 03:
All right. And at least to the point of 58%.

[00:22:03] Speaker 00:
In terms of seizable drug quantity? Yes. I think so. Well, again, accuracy for the canine, you really can't impugn her accuracy for the failure of the officers to find the contraband because of that residual odor issue. And then in terms of the hemp, again, all of the law enforcement witnesses here testified that they had never found lawfully possessed hemp After a dog's alert, especially when you get into the testimony of Rob Havis and Trooper Bracken, having worked with many dogs, it really covers more than just canine Becky as practical experience.

[00:22:45] Speaker 00:
And so, Your Honors, I think that finding essentially a reasonable expectation of privacy in an odor of a controlled substance where we can find a lawful exception to the substance's possession doesn't convert it to non-contraband. And I think that such a rule would lead to absurd results.

[00:23:05] Speaker 00:
If there are no further questions on the Cabias issue, I would like to briefly address the Jones issue.

[00:23:14] Speaker 00:
And I think that there's a similar argument when it comes to Jones. I think that really the best case for the government here is Felmy out of the Sixth Circuit. There, the Sixth Circuit Court of Appeals undertook a very detailed and thoughtful analysis of how this Jones trespass issue really should work. And at bottom, any technical trespass amounting to a Fourth Amendment violation again produces absurd results. In Felmy, what happened was the officer had his drug dog and was running the drug dog around the vehicle.

[00:23:49] Speaker 00:
And this is one of those drug dogs where the officer taps to ask the dog to sniff in certain locations. So in doing so, he tapped at the open window of the passenger, excuse me, driver's side of the vehicle. The dog puts its paws on the sill, sniffs around, doesn't alert. they go around to the other side of the vehicle, do the same thing, the dog sniffs, leans in a little bit, and then gives an alert. So her nose actually breaks the plane into the cab of the vehicle, and she's got her paws up on sort of the sill of the door.

[00:24:22] Speaker 00:
Now, in examining those circumstances, the Sixth Circuit in Filmy said that this was incidental to her sniff, and it didn't make this conduct into a Fourth Amendment violation. And it went through the problems with any technical trespass amounting to a Fourth Amendment search. Mainly that the placement of the contraband, the size of the vehicle, and the size of the dog would dictate whether or not those things are a search.

[00:24:53] Speaker 00:
Becky is small, so anytime she searches, she's often trying to get up, so she jumps a lot. But conversely, a large dog with a low vehicle is might rub against the doors, the wheel wells, or even the underside of the frame in the course of trying to go to source. And that's what all of the experts here agreed drug dogs are properly trained to do. They're trained to try to reach the strongest source of the odor. And in doing so, sometimes they touch things. Now, in construing any touch by a drug dog as a Fourth Amendment trespass, I think also it's important to think about what that looks like when we would infer that same rule to a police officer.

[00:25:38] Speaker 00:
The Sixth Circuit makes the point that a police officer is entitled to look through an open window. If he presses his nose on the window when he does so, now it's a Jones trespass, and we can't do that. That seems similarly absurd. And I think that the point is also illustrated by this thing about scratching the car. First of all, we dispute that the car was actually scratched. We don't dispute that it was touched, but that would be a Fourth Amendment problem that on these facts would be solved with rubber booties. That seems like an odd place to draw the line for the Fourth Amendment.

[00:26:11] Speaker 00:
And I think that the Sixth Circuit dealt with this well when it talked about the purpose of the touch itself. The dog doesn't actually gain information just through the touch. Now, sure, she gets up higher, but the touch itself, she has no sensors in her paws. And furthermore, You have drug dogs who do things like press their nose to the seam of the car. If it's just the touch, then that too would be a Fourth Amendment trespass.

[00:26:38] Speaker 03:
But we're not going to be writing a rule that sets down a standard when it's incidental and when it's intrusive.

[00:26:52] Speaker 03:
That's the job of the district judge, isn't it? To listen to the evidence and say...

[00:26:59] Speaker 03:
that was incidental.

[00:27:02] Speaker 03:
Or in another case, that was intrusive. That's the district court's job, is it not ours?

[00:27:08] Speaker 00:
Yeah, and I think that if the district court had gotten to really judging whether or not the trespass here, may I finish my answer, was some sort of intrusion or invasion, as the words of Jones contemplate, then I think that we could be talking about whether factually the trespass did those things.

[00:27:29] Speaker 03:
Did the district court just avoid that by saying there was a previous alert? Or did it say there was an intrusion?

[00:27:36] Speaker 00:
So what the district court did was found that the dog alerted before she touched the side of the car. So you don't have to reach the Jones issue.

[00:27:44] Speaker 03:
And that's what the district court did.

[00:27:46] Speaker 00:
No, the district court did address the trespass issue, even though it did not have to. Frankly, I think because the judge was sort of offended that the drug dog jumps on cars. But The point here being is that if you reach the trespass issue, the district court didn't really get down to whether or not Becky's intrusion or occupation of the vehicle facilitated the search. Just that it was in the course of the search was enough for the district court. And I don't think that's enough for all of the reasons that the Sixth Circuit said in felony.

[00:28:21] Speaker 02:
What if the dog was placed on the roof of the car?

[00:28:26] Speaker 02:
or the bed of a pickup.

[00:28:28] Speaker 00:
Now, if you have the officer, you know, actually doing that, I think that's where we can fall back to this circuit's well-established precedent about the actions of drug dogs and how they're facilitated by officers by things like opening the back of the hatchback of a car, leaving a door open. I think the back end of a truck is maybe a closer question. Like, I think the dog would probably need to leap up into that on its own following its nose rather being placed. thereby the officer for it to be acceptable under this court's existing precedent.

[00:28:59] Speaker 00:
And that's part of why I think it makes sense here to categorize the Jones issue in terms of harmonizing it with this court's existing precedent on the behavior of drug dogs and that line between the officer's facilitation, things like manipulating the car, and the drug dog following its nose.

[00:29:18] Speaker 02:
Thank you. Thank you. Time's expired. We've got some rebuttal.

[00:29:26] Speaker 01:
I'm going to make a couple points about the trespass issue.

[00:29:31] Speaker 01:
Jones has made clear that only three things are required, a constitutionally protected effect, a touching, and that being made for the purpose of gaining information.

[00:29:44] Speaker 01:
All three things are met here, and the district court did actually find that she jumped up on the car in order to get information. That was a finding the district court made, and she, in fact, got information from that. The government's argument that it didn't make that finding is incorrect.

[00:30:00] Speaker 01:
But Jones and Hardinez make clear that it doesn't have to be a substantial touching.

[00:30:08] Speaker 01:
The dog walking on the cartilage in Hardinez was enough. And this idea that the paws have to communicate the information is not in Jones, and it's definitely not in Hardiness. In Hardiness, the dog's paws weren't conveying the information when it was walking on the cartilage. It was trespassing in order to get information from its nose. So that's what matters. It's not whether the paws convey information. And the same was true in Jones. It wasn't the attachment to the car that conveyed information. It was the digital device transmitting it back.

[00:30:42] Speaker 01:
to the officers about the movements, but the trespass was the attachment. So the Felmy Court was incorrect, and the government is definitely incorrect on that point.

[00:30:52] Speaker 01:
The idea, too, that the dog, you know, the touching could be, this would be very difficult or irrational to administer, it's not. If the dog touches the car while it's doing its sniff and it's trying to get information from doing that, it's a search under Jones. It's not really very hard. The dog can't touch the car. If the dog jumps into the bed of the trailer, it has trespassed, and that's a search, whether the officer puts it there or not. And to be clear, this court has never addressed Jones in this context.

[00:31:23] Speaker 01:
None of its cases on that stone line of cases address this test. They address the reasonable expectation of privacy test, not this question. One last thought on our Kibias argument.

[00:31:35] Speaker 01:
Whether something is a search is different from whether there is probable cause. Searches turn on capability. Probable cause turns on probability. So the reliability questions and the error rates do not bear on the search question. And for this, we'd ask you to reverse. Thank you.

[00:31:51] Speaker 02:
Thank you, counsel. Appreciate your stamina. You're excused. You're not doing the next case, are you? Case is submitted.