A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court

from the K-9s-are-tire-chalk dept

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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Comments on “A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court”

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12 Comments
Bobvioussays:

Merry Drug SearchTo You

Drug dog sniffing through an open window
Coppers looking for your drugs
Trespassing in another unlawful search
Cars being tracked by illegal bugs

4th Amendment violations served up left and right
Help to ease the LEO’s job
Sniffy dogs with their eyes all aglow
Will find it hard to sleep tonight

They know there’s tasty treats upon their way
And lots of praise and hugs again this day
And every traffic stop involving dogs
Can be controlled by the handling hogs

And so I’m offering this simple phrase
To folk from one to ninety-two
Although it’s been said many times, many ways
4th Amendment – screw you

Upstreamsays:

It's not the dogs . . .

. . . that are the problem. It’s their trainers / handlers that are the problem. And they are a very big problem.

Detection dogs can range from very good to astoundingly excellent in their abilities, see here, here, here, here, here, and here.

Here is a quote from the last linked article:

"The problem with drug-sniffing dogs is not that dogs aren’t capable of sniffing out drugs; it’s that we’ve bred into domestic dogs a trait that trumps that ability — a desire to read us and to please us. If a drug dog isn’t specifically trained to compensate for this, it will merely read its handler’s body language and confirm its handler’s suspicions about who is and isn’t hiding drugs."

The bottom line is that the weak link is either the training or the handler, whether through incompetence or ill-intent. Trained and handled properly, the dogs do quite well.

Anonymoussays:

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.

In retrospect, the police might have been better served leveraging this angle.

  1. Arrest Howard for the open warrant. This would be clearly legal.
  2. Determine that the car is not registered to any of the occupants. Almost certainly legal. The only quirk here would be if the passenger could legally refuse to identify himself/herself (state law varies here, particularly if the police cannot articulate any crime of which the passenger is suspected), and the passenger insisted he/she was the owner of the vehicle.
  3. Contact the registered owner to come retrieve the vehicle.
  4. Pressure the registered owner to sign a consent-to-search form. Phrase it as "We want to make sure that any contraband this known criminal might have put in the vehicle is caught now, while we’re sure you didn’t put it there." Cops get away with more egregious lies readily enough.
    a. If the owner signs, then the search is permissible.
    b. If the owner refuses, the police are no worse off than they ended up with how this case worked out.
MTormesays:

Re: 4th Amendment - screw you

American government public-servants constantly find 4A to be a very annoying paper legality, lmpeding their expansive control of the populace.

Fortunately, SCOTUS public-servants have invented so many formal ‘exceptions’ to 4A that the original ‘Right’ guaranteed by the simple to understand 4A text is unrecognizable.

Lower courts and some pesky citizens still sometimes quibble about 4A application, but it’s clear that 4A means whatever the current SCOTUS occupants say it means on any given day.
Such is the status quo of American inalienable rights and rule of law.

Government "compelling interest" usually over-rides that silly year 1789 text.

AnonyOpssays:

Re: Re: 4th Amendment - screw you

4th Amendment needs to be revised by the citizenry a few dead bodies for violating it would be a good start. Citizens are dying far too frequently to make it official for a much needed revision. The bought and paid for media also look the other way when its happening to those less fortunate than those of lighter skin and the economically deprived.

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