NC: When a trained police “dog [is] just being a dog,” as if that’s possible

A burglar alarm went off at defendant’s house and the police arrived, finding a broken window. The first officer didn’t enter, and he called for a dog and handler and backup. The defendant’s mother arrived, and she let the police in to search for intruders. The dog was sent in to search, which he did alone from room to room. The dog stopped in the bedroom and sat down by the dresser, indicating drugs. Because this was an instinctive reaction of a “dog just being a dog” [completely ignoring that this dog was also a narcotics detection dog, and so that’s just wrong; untrained dogs don’t stop for drug smells]. State v. Miller, 2014 N.C. LEXIS 952 (December 19, 2014):

Jack’s [the dog’s] actions are analytically different under the Fourth Amendment or Article I, Section 20 from similar actions performed by the police. Stated precisely, we must decide whether a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is a search within the meaning of the Fourth Amendment or Article I, Section 20 of the North Carolina Constitution.

. . .

If a police dog is acting without assistance, facilitation, or other intentional action by its handler (in the words of Sharp, acting “instinctively”), it cannot be said that a State or governmental actor intends to do anything. In such a case, the dog is simply being a dog. If, however, police misconduct is present, or if the dog is acting at the direction or guidance of its handler, then it can be readily inferred from the dog’s action that there is an intent to find something or to obtain information.

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