¶1concurring. The scope of the majority opinion is troubling. For the first time, this court considers the question of whether a dog sniff Gan be conducted on a vehicle parked in a public parking area at a restaurant, when the information received about the owner of the vehicle and methamphetamine manufacture was an unsubstantiated tip. On this point, Craighead County Deputy Sheriff Jerry Roth admitted that the information he had received about methamphetamine manufacture and Thorn and Dowty could have been true or it could have been a lie. Nevertheless, the majority concludes that based on a tip that Thorn was somehow involved in the manufacture of methamphetamine, police officers could run a dog around her Grand Am vehicle to sniff for drugs. This was done even though the police officers did not have reasonable suspicion to detain Thorn for a canine sniff. Furthermore, the sniff was not conducted in connection with a valid traffic stop.
¶2Despite this absence of reasonable suspicion, the majority approves the canine sniff of Thorn’s Grand Am merely because it was parked in a restaurant parking lot which was open to the public. Thus, there was no reasonable expectation of privacy, according to the majority. Under this reasoning, all vehicles parked in public places will be subject to a canine sniff based on anonymous tips.
¶3The United States Supreme Court recently spoke on canine sniffs in the case of Illinois v. Caballes, 125 S.Ct. 834 (2005). In that case, a canine sniff was approved by the Court, but only because it occurred pursuant to a “lawful traffic stop” and because the entire incident occurred in less than ten minutes. While one police officer was in the process of writing Caballes a warning ticket in his police car, a second police officer, who had heard about the stop on his police radio, ran his dog. The Caballes court also made the point that there is no legitimate privacy interest in illegal drugs protected by the U.S. Constitution. In the case before.us, there was no lawful traffic stop and no reasonable suspicion to detain Thorn to activate the canine sniff of her Grand Am. It was primarily that sniff and the resulting methamphetamine that was found in her vehicle that gave the police officers reasonable suspicion to detain Dowty and conduct a similar canine run around his car. The Dowty search is a classic example of the fruit of the poisonous tree.
¶4In this case, it is important to emphasize that we are not talking about a general canine sweep on a public lot where explosives, chemicals, or other substances for mass destruction are the subject of the sweep. That would be categorically different from what we face in this case, and I would not hesitate to affirm dog sniffs in those cases based on the risk involved. Here, the subject is methamphetamine, and more than an unsubstantiated tip should be required before a drug sniff can be conducted in a public parking lot. Surely that was the case in Caballes v. Illinois, supra, where a valid traffic stop was already underway and Caballes was already reasonably detained.
¶5Having said that, I agree with the majority that federal courts have said that there is no reasonable expectation of privacy for cars parked on public streets. See, e.g., United States v. Friend, 50 F.3d 548 (8th Cir. 1995), vacated and remanded on other grounds 517 U.S. 1152 (1996). I also agree that this court’s jurisprudence has cited federal case law that supports the proposition that a canine sniff of the exterior of a vehicle is not a search. See, e.g., Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004).
¶6My preference, however, is to require more in the way of reasonable suspicion than an unsubstantiated tip before dogs can be walked around cars in public parking lots. Having said that, I recognize that federal case law appears to sanction random, even suspicionless, searches of cars parked in public places. See, e.g., United States v. Friend, 50 F.3d 548 (8th Cir. 1995) (search warrant executed at clubhouse resulted in methamphetamine found on Friend’s person; dog sniff of Friend’s car in alley behind clubhouse not a search and expectation of privacy did not extend to dog sniff); United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1994) (Boarder Patrol’s random use of drug dog for cars at a motel generally known as a staying area for smugglers not a Fourth Amendment violation because there is no legitimate expectation of privacy); Horton v. Goose Creek Independent School Dist., 690 F.2d 470 (5th Cir. 1982) (per curiam) (dog sniff of student lockers and cars on school parking lot not a Fourth Amendment search). In Friend, the Eighth Circuit couched its opinion in terms of no privacy rights in a publicly parked vehicle as opposed to a justifiable dog sniff of Friend’s car after finding drugs on his person.
¶7Perhaps at a later date the United States Supreme Court will speak further on this issue or the issue will be preserved under our State Constitution for our consideration. Until then, federal case law appears to support the majority opinion. For that reason, I concur.