Our client was accused of trafficking in approximately 100 pounds of high grade marijuana. Law enforcement had received a tip from a confidential source about a crate that was being shipped here that allegedly contained drugs. The police called in a K-9 officer whose dog failed to alert on the crate.
We filed a motion to suppress and alleged a Franks v. Delaware, 438 U.S. 154 (1978) violation because the affidavit was silent about the dog's failure to alert. This material omission eliminated the government's ability to argue Leon's good faith exception and enabled us to get the marijuana trafficking charge dismissed.
We located and relied on an Eighth Circuit decision, United States v. Jacobs, 986 F.2d, 1231 (1993) to support our position that a drug dog's failure to alert on a package had to be included in the affidavit filed in support of a search warrant.