A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court
How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)Here are the facts of the case:
In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico 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, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.The district court was fine with Pico's momentary intrusion and denied the motion to suppress. It said that because the sniff was of the dog's own volition, it couldn't possibly have been a rights violation.
The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.The challenge of the search pointed to the Supreme Court's decision in Jones, which found intrusions -- however minimal -- into private property were unconstitutional without a warrant or any applicable warrant exception. In that case, officers placed a tracking device on a parked car. That minimal intrusion (in service of a greater, more extended intrusion) was impermissible.Idaho's Supreme Court agrees with the defendant. Jones is controlling here. The intrusion may have been minimal but it was still an intrusion.
We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.Then it points to a more recent Appeals Court decision that dealt with another form of minimal intrusion.
Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.This was the same conclusion a California federal court reached last spring. A tire mark is a search. And, if that's upheld on appeal, there will be controlling precedent in Idaho (the Ninth Circuit, which also covers California) that aligns with the findings here.And that finding is that it isn't the means or methods or length/depth of the intrusion. It's the intrusion that matters.
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.That's the baseline. And the court says the government can't save its search by claiming the drug dog was in the process of alerting prior to the intrusion into the vehicle. The officer's testimony stated that the dog had not shown a "final" alert prior to sticking its nose through the window. Only after that did the dog sit, something the officer said was an "alert."
When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?That's the problem with four-legged probable cause. It's mostly up to the officer interpreting the dog's acts. And, without the benefit of dashcam or body camera recordings, these subjective takes become part of the official record and are difficult to challenge. This recounting of events raises enough questions about the dog's actions that the court is unwilling to call any of what's described above "probable cause."This decision says the government can't have the evidence it obtained with the aid of an intrusive canine. And that means it can't have its conviction either. Going forward, cops in Idaho are going to need actual probable cause -- not just inconsistent dogs -- before searching people's cars during traffic stops.
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posted at: 12:00am on 23-Oct-2021
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