W.D.N.Y.: A dual purpose dog and handler had implied license to enter house on a 911 robbery call

Defendant called 911 to complain that an armed person was trying to break into his apartment. Police arrived, and one had a dual purpose dog. The dog was run around the property looking for the scent of a person, but got nothing. The officer handler and the dog came in the house to meet up with the other officers and just observed. There was no direction to search for drugs. After about five minutes, the dog became excited, and the handler took that to mean he alerted on drugs. A search warrant was obtained, and it was valid. The dog was not brought in to search for drugs and wasn’t. He was just there observing. It was happenstance, and this was not a case of a drug dog brought to a house just because the police wanted to. On good faith, “At the very least, the validity of the search warrant was a close call, making Officer Costello’s reliance on it objectively reasonable.” United States v. Iverson, 2016 U.S. Dist. LEXIS 23445 (W.D.N.Y. Feb. 25, 2016). Key to this decision is that the dog was dual purpose, this was an armed robbery call, and there is no evidence the dog was directed to search for drugs. There is no police right to bring a drug dog on any call involving a house:

Upon a de novo review of the record, and especially the transcript of the officers’ testimony, as required by 28 U.S.C. § 636(b)(1), this Court agrees that the officers had an implicit license to enter Iverson’s apartment with Tank. Therefore, there was no unreasonable search in violation of the Fourth Amendment.

As noted above, whether the officers had such an implicit license depended on what their behavior objectively revealed. See Jardines, 133 S. Ct. at 1417 (the officers “behavior objectively reveal[ed] a purpose to conduct a search, which is not what anyone would think he had license to do”); see also United States v. Gandia, 276 F. App’x 10, 12 (2d Cir.) (summary order), cert. denied, 555 U.S. 930, 129 S. Ct. 312, 172 L. Ed. 2d 226 (2008). Here, it is undisputed that Iverson called 911 to report a person who may have been an armed robber, and the officers’ behavior objectively revealed a purpose to follow up on that request for assistance.

What is more, Tank was with Officer Costello to assist in the search for the suspicious person Iverson reported. There is no legal requirement that officers with canine companions announce their dogs’ training—or leave their dogs behind—when they go somewhere they lawfully may go. Nor should there be any such requirement. Indeed, such a requirement would put significant burdens on law enforcement, and this Court is not inclined to discourage police officers, such as Officer Costello, from taking their canines with them. Not only is that practice likely beneficial for officer safety, but it also is likely beneficial for the public’s safety precisely because police canines may—and, in fact, are trained to—respond aggressively to certain stimuli.

That is not to say that police officers may bring drug-detecting canines on all their calls in the hope of uncovering narcotics. When denying a very similar motion to suppress that involved bringing a drug-detecting dog along during the execution of a search warrant for weapons, another district court warned: “Let me be clear, … I do not endorse the use of a drug-sniffing dog whenever the police obtain a search warrant listing non-drug related items. I hold only that, under the particular circumstances of this case, the police did not act unreasonably in using the dog.” United States v. Jones, 2011 U.S. Dist. LEXIS 10820, 2011 WL 294842, at *10 (E.D. Wis. Jan. 26, 2011). Likewise, there was no unreasonable search in violation of the Fourth Amendment under the particular circumstances of this case: a canine, present in an apartment only as part of a search for a possible armed robber reported by the apartment’s inhabitant, alerted for narcotics without an order to search for narcotics and while restrained on a four-foot leash near the entrance to the apartment. Cf. United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (“absent police misconduct, the instinctive acts of trained canines … [do] not violate the Fourth Amendment”); United States v. Rivera, 89 F. Supp. 3d 376, 414 (E.D.N.Y. 2015) (“although the Second Circuit has yet to decide the issue, several appeals courts have held that no constitutional violation has occurred where a canine’s entry into the car was instinctual rather than orchestrated”); State v. Miller, 367 N.C. 702, 713, 766 S.E.2d 289 (N.C. Sup. Ct. 2014) (distinguishing between a dog “simply being a dog” and situations where a dog “is acting at the direction or guidance of its handler”). There also is no evidence that Tank was trained to somehow skirt the Fourth Amendment’s protections by conducting unreasonable searches on his own initiative. See United States v. Sharp, 689 F.3d 616, 620 (6th Cir.), cert. denied, 133 S. Ct. 777, 184 L. Ed. 2d 514 (2012) (acknowledging that “on some level” the dog jumped into a car and alerted for narcotics because of his training, but holding that the inquiry should focus on whether the police specifically trained or encouraged the dog to jump in cars).