A canine officer posed the following question:

He makes a traffic and developes a suspicion. The driver refuses consent to search, so the officer wants to run his dog around the car. Can the officer turn off the car, roll up the windows and turn on the ventilation blower, or can he require the driver to turn off the car, roll up the windows and turn on the blower, before running the dog around the car? Is this prep procedure OK or is it grounds for an unreasonable search or seizure?

Apparantly this procedure forces air/odor out of the car around the doors, etc. to give the dog a better sniff.

The only case I can find that addresses this issue is out of the Supreme Court of Illinois, Illinois vs. Bartelt, 241 ILL2nd 217 (2011).

What would Texas say?

I can't say I have done the research but I think
"Apparently this procedure forces air/odor out of the car around the doors, etc. to give the dog a better sniff" takes away from the "free-air" argument.

Whoa! Dogs sniffing the exterior of a vehicle as it stands is one thing, but requiring certain interior functions be performed to enhance the dog-sniffing procedure is quite another. An appellate court might well find that requiring that sort of affirmative compliance inside the vehicle during the huffing is improper.

that such a procedure doesn't pass the smell test.

The 5th circuit says it is OK to prep a suitcase sniff by pressing on the suitcase to circulate the air and force odors out before the dog sniff. The Illinois court says the above prep procedure is OK (however there was a three judge dissent), it is my understanding that the above prep procedure is common among dog handlers. I am surprised that it has not been challenged.

Illinois vs. Bartelt is an interesting read, but I would be leery of relying on a 4/3 split where the majority spends 3 pages discussing the failure of the defendant to brief on on the "prep procedure" as unlawful seizure as opposed to unlawful search. I would expect the next time such facts are presented, the "prep procedure" as a seizure will be argued extensively by the defense.

Take a look at Kyllo v. United States, 533 U.S. 27 (2001) (use of thermal imaging held to be "search" that violated 4th Amendment); Bond v. United States, 529 U.S. 334 (2000) (though bus passenger expects bag to be handled by other passengers, he does not reasonably expect that anyone will manipulate bag in exploratory manner).

A defense attorney might argue that the officer's actions of telling the defendant to turn on the vents (so as to "enhance" the dog's ability to detect drugs) amounted to a "manipulation" of the car, which thereby turned the open air sniff into an illegal search. The defense attorney might also argue that the driver's conduct of turning on the vents was an involuntary acquiescence to the officer's display of authority. That argument creates a 38.23 issue, one requiring a special jury charge at trial -- and that's a huge headache in itself.

Given how good most dogs are finding drugs without assistance (and which leads to useable evidence), is it worth any additional legal hassle that might result in the suppression of all your evidence?

If interested in looking around the issue, you may want to review the pleadings and opinions below in United States v. Jones, No. 10-1259 to be argued in the SCOTUS on 11/8/11. The issues there are: (1) whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

There must be some insight that can be gleaned from the case.

Just from an aging memory, but isn't the 'free air' argument the basis of concluding that a dog sniff is no search at all? Just like 'plain view' is no search? A person has no right of privacy to something he freely exposes to the world, be it by smell or sight. Forcing him to expose more doesn't seem to fit.

By analogy, forcing someone to empty his pockets for inspection hardly fits within the rationale of plain view.