Supreme Court Asked To Determine Whether A Drug Dog Touching A Car With Its Paws Violates The Fourth Amendment
Probable cause on four legs." That's the nickname for drug dogs, which give cops permission to perform searches just by performing a neat little trick cops call an alert." What constitutes an alert" is pretty much up to the dog's handler, who can claim any movement is the drug dog detecting contraband or (deliberately or inadvertently) prompt alerts" just by being near the dog when the sniff of a car is performed.
But these dogs are working their way out of a job in Idaho. A case we covered in 2021 dealt with an Idaho Supreme Court decision ruling it was possible for drug dogs to violate the Fourth Amendment if their sniffing actions got a little bit too intrusive.
That case dealt with a March 2019 traffic stop, during which this occurred:
During the hearing on the motion, Howard argued Pico [the drug dog] momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones.
The conclusion reached cited the Jones decision, as well as recently developed case law involving the chalking of car tires for parking enforcement reasons.
Like the marking of chalk on a car tire's tread, a dog's nose passing through an open window is a minimal interference with property. But the right to exclude others from one's property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.
A drug dog can sniff, but it must remain outside of the car. Not only that, but, according to the Idaho state Supreme Court, it must not touch the car. This case dealt with another drug dog intrusion during another traffic stop - this one performed a few months later, in August 2019.
This is the upshot of that 2023 state Supreme Court decision [PDF]:
For the reasons discussed below, a search" occurs when a drug dog trespasses against the exterior of a vehicle during a free air" sniff if its physical contact with the vehicle amounts to intermeddling" at common law. In this case, a drug dog intermeddled with Dorff's vehicle when it jumped onto the driver side door and window, planted two of its paws, and sniffed the vehicle's upper seams. Accordingly, law enforcement conducted a warrantless and unlawful search" of Dorff's vehicle by way of its drug dog.
Idaho's top court said even this minimal intrusion was still an intrusion, under both state law and the US Constitution. Inadvertent contact may not be a violation, but more intentional contact definitely is.
Intermeddling is the difference between someone who brushes up against your purse while walking by-and someone who, without privilege or consent, rests their hand on your purse or puts their fingers into your purse before your eyes or behind your back. It is also the difference between a dog's tail that brushes against the bumper of your vehicle as it walks by-and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its hood, stand on its window or door-or enter into your vehicle, see, e.g., Randall, 169 Idaho at 368-69, 496 P.3d at 854-55; Howard, 169 Idaho at 382, 496 P.3d at 868
Open air" sniffs do not violate the Fourth Amendment. But closing that gap to make the air far less open does.
Idaho's government - acting on behalf of the state's law enforcement officers - is appealing this decision. It has petitioned the US Supreme Court to overturn the state's ruling in hopes of allowing officers to continue to engage in intrusive drug dog searches without having to worry about their evidence being tossed or being sued for violating constitutional rights. The USA Today's coverage of this petition does not include the petition for some reason, but does include this quote from a supposed expert who claims the actions of drug dogs are uncontrollable.
Don Slavik, executive director of the United States Police Canine Association, said K-9 dogs sometimes stand on hind legs and put their front legs on a car for balance as they're chasing a scent.
Dogs are used to detect odors because of their unique ability to follow a trained odor to its source," Slavik said. Once the dog detects the trained odor, it will follow the scent to the source or come as close as possible to it."
Weird. I thought drug dogs were highly trained and handled by skilled professionals. You'd think this combination of training and expertise could prevent (or at least curb) this sort of spontaneous activity during open air sniffing.
The state will need a better argument than the what can you do" shrug presented here. It's own Supreme Court petition [PDF] notes the state Supreme Court has already rejected the dog might need to balance itself or whatever" claims presented during the criminal trial.
The Idaho Supreme Court also rejected the reasoning that Nero's actions in putting his paws on the car were not attributable to the police or Government, citing prior Idaho precedent so holding and also reasoning that an owner of an animal is responsible for its trespasses.
That last part is just common sense. If a citizen's dog runs into another yard and causes damage or bites someone, it's the dog's owner that's held responsible. And regular people aren't dog-handling professionals, like the officers in this case.
The USA Today speculates the Supreme Court will probably handle" the petition during its fall session. But how it's handled will matter. The Supreme Court hasn't been handling much lately, preferring to use its shadow docket to dispense with cases it doesn't feel are worthy of its healthy amount of time, but limited amount of interest. Whether this is one of the cases the Supreme Court wants to actually spend some time hearing remains to be seen, but in recent months, the nation's top court has preferred to focus on cases that roll back long-held rights, rather than increase the coverage of existing rights by applying them to new question of law.
But, for now, it's paws-off when doing drug sniffs in Idaho. And if cops can't control their dogs, they're going to see a lot of slam dunk prosecutions coming to evidentiary dead-ends.