Officers searched defendant’s house with a search warrant, and, after it started, a drug dog was brought in and didn’t find anything. Noting that blanket suppression is a drastic remedy, and Jardines changed the landscape of use of dogs in the home, the court concludes, after a clearly sensitive inquiry, it wasn’t objectively unreasonable to use the dog inside the house and blanket suppression would not be ordered. United States v. Moran, 2014 U.S. Dist. LEXIS 179207 (W.D. N.Y. December 24, 2014):
The question of whether a reasonable officer in Agent Knight’s position would have had an objectively reasonable belief that the use of the police dogs was lawful is a close one, in my estimation. Although the dogs and their handlers were present at the pre-search meeting, I reject Moran’s contention that the evidence establishes that their use was planned and pre-ordained. Rather, I credit Knight, who I found to be a very credible witness, that the decision to use the dogs was made only after marijuana and paraphernalia were found on Moran’s person and a firearm was found inside the residence. Of course, whether or not their use was determined in advance does not dispose of the question whether it was lawful.
The reasonable inference from Knight’s testimony is that he believed at the time of the search that the law permitted agents executing a valid search warrant to conduct canine searches for drugs and/or explosives if drugs or guns were discovered during the search or on the person of occupants of the property being searched. Under Liu and Ganias, the issue is whether such belief was objectively reasonable under the law in existence at the time of the search.
I do not understand the Fourth Amendment to permit such a practice. The Fourth Amendment requires a warrant that particularizes the property to be searched and the items to be seized. Ganias, 755 F.3d at 134 (“[t]he Fourth Amendment guards against th[e] practice [of general warrants] by providing that a warrant will issue only if … the warrant states with particularity the areas to be searched and the items to be seized” and thus “prevents the seizure of one thing under a warrant describing another”) (internal quotation omitted). In this case, the warrant authorized the officers to search Moran’s residence for personal property bearing symbols, words or imagery relating to the Hell’s Angels. The warrant did not authorize a search for or seizure of drugs or firearms. Neither was the warrant amended, nor did the officers apply to amend the warrant, to include such items once some evidence of this sort was found during the warrant execution. I am not prepared to say that officers executing a warrant authorizing a search for specifically-enumerated non-drug and non-firearms evidence are constitutionally permitted to use canines who are trained and capable of identifying only the scent of drugs and firearms any time drugs and/or firearms are discovered during the search for the authorized evidence. See United States v. Jones, 2011 WL 294842, *10 (E.D. Wis. 2011) (“[l]et me be clear, however[,] I do not endorse the use of a drug-sniffing dog whenever the police obtain a search warrant listing non-drug-related items”). As the Second Circuit has observed:
With a trained dog police may obtain information about what is inside a dwelling that they could not derive from the use of their own senses. Consequently, the officers’ use of a dog is not a mere improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument.
United States v. Thomas, 757 F.2d at 1367. In my view, the proper procedure under these circumstances, and the one the Constitution demands, is to apply for an amended or second warrant authorizing such a search.
Whether in the pre-Jardines era, a reasonable officer could have believed in good faith that the Fourth Amendment allowed otherwise is a difficult question. At the time, as the Court itself acknowledged in Jardines, several Supreme Court cases had upheld as constitutional the use of police dogs to conduct property searches, finding that the use of a dog to sniff did not violate an individual’s reasonable expectation of privacy. Various lower courts had upheld canine searches on the grounds that because the officers were otherwise lawfully on the premises, the use of trained canines did not violate the privacy of the individual with an interest in the premises. Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 628 (7th Cir. 2008) (“K-9 units trained to detect contraband do not conduct a search when they sniff in an area where they are lawfully present”); United States v. Brock, 417 F.3d 692, 697 (7th Cir. 2005) (“[c]ritical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of [defendant’s] roommate[;] … [t]he dog sniff from the common area of defendant’s residence, where police were present by consent, did not violate defendant’s Fourth Amendment rights”). I credit that Knight believed in subjective good faith that because he had a warrant giving him the lawful right to be inside and search the entirety of Moran’s residence, he had the lawful right to use trained dogs to sniff for narcotics and explosives because no greater invasion of Moran’s privacy would have resulted from the sniffs. See United States v. Jones, 2011 WL 294842 at *10 (upholding use of trained narcotics dog during execution for warrant for non-drug evidence after scale and drug-residue were found in plain view; officers acted reasonably where dog use did not extend duration of search and sniffed only in areas where items authorized by warrant could have been found, and thus “the presence of the dog did not in any way elevate the level of intrusion”); cf. Trujillo v. Simer, 934 F. Supp. 1217, 1223 (D. Colo. 1996) (“[p]laintiffs fail to cite any prior case holding that the Fourth Amendment is violated by bringing a drug sniffing dog into a residence being seized pursuant to an in rem arrest warrant[;] … [p]laintiffs had no expectation of privacy during the execution of the warrant, so this was not a Fourth Amendment violation”).
Whether such a subjective belief could be considered objectively reasonable is made more difficult by Jardines, which did not turn on a reasonable expectation of privacy analysis. Rather, it turned on a property-based analysis and held that a canine sniff of a residence is a search within the meaning of the Fourth Amendment. It is black-letter constitutional law that a search of a residence must be authorized by a warrant or otherwise fall within an exception to the warrant requirement. There is no exception to the warrant requirement that allows a law enforcement officer who discovers evidence outside the scope of the warrant during the course of a lawful warrant execution to use search techniques or a search team whose only capability is to discover additional evidence outside the scope of the warrant. See United States v. Jardines, 133 S. Ct. at 1418 (“[l]ike the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell”) (Kagan, J., concurring); United States v. Ewain, 88 F.3d 689, 695 (9th Cir. 1996) (under objective test, “it no longer matters that the invited-along officer was looking for what he found, which thing was not described in the warrant[;] [w]hat matters is whether the officers looked in places or in ways not permitted by the warrant”) (emphasis added), cert. denied, 519 U.S. 944 (1996). As the Supreme Court has long recognized, the Constitution does not sanction the use of a warrant as a pretext for a general search. Horton v. California, 496 U.S. 128, 140 (1990) (“If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more”).
Resolution of the good faith question is not critical to Moran’s suppression motion, however, because the record demonstrates that the agents did not effect a widespread seizure of evidence outside the scope of the warrant. The only evidence seized from Moran’s residence that was outside the scope of the warrant was the marijuana and the firearms, and those items were lawfully seized either incident to Moran’s arrest or in plain view during the course of the search for Hell’s Angels’ insignia authorized by the warrant. …
