W.D.Tex.: Dog alert on a commercial building is only a factor in PC; flight of occupants is exigent circumstance

A dog alert on a large commercial building was not PC in itself, but it would be a factor in PC on the totality of circumstances. Here, there was. A dog sniff on a commercial building is constitutionally different than a home. A knock on the door is not a seizure. Flight of occupants was exigent circumstances. United States v. Olivas, 2009 U.S. Dist. LEXIS 62270 (W.D. Tex. July 17, 2009):

Given the totality of the circumstances, the Court holds that the alert of a trained detector dog for a controlled substance on the premises, the presence of a suspected drug trafficker on the premises, the flight of that suspect from the premises after acknowledging and ignoring identified law enforcement, and the suspect’s subsequent false statements about his actions together demonstrate that the Agents had probable cause to enter the premises, seize the individuals and perform a security sweep of the premises. See Newman, 472 F.3d at 237 (district court did not commit plain error when it found probable cause based on law enforcement’s knowledge of known drug dealer on premises, presence of security system, man fleeing premises, and suspicious movements behind a curtain). The question remains, however, whether the Agents had the exigent circumstances necessary to enter the premises without a warrant.

. . .

fn7. The Court notes that the Supreme Court’s decision of Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), may undercut some of the reasoning that supports the proposition that a dog sniff is not a search under certain circumstances. See Kyllo, 533 U.S. at 37 (use of thermal imaging to measure heat emanating from home a search under the Fourth Amendment); id. at 47-48 (Stevens, J., dissenting) (noting that the rule adopted by the majority potentially places it at odds with the holding in Place and that such a rule would “embrace mechanical substitutes for dogs trained to react when they sniff narcotics”); United States v. Richard, 2001 WL 1033421, *6 n.4 (W.D. La. Aug. 29, 2001) (comparing the impermissible use of heat sensor imagery used in Kyllo with dog sniffs). However, because Kyllo involved the search of a home and not a commercial property, and because both Place and Jacobsen remain good law, the Court will not attempt to resolve any theoretical conflicts raised between these cases.

. . .

After Agent Viera knocked on the gate the first time and announced themselves, Mendez appeared but ignored the Agents. Mendez then jumped a fence and fled the premises. At that point, it was reasonable for the Agents to assume that those in the premises were alerted to the Agents’ presence and that they were in the process of destroying any controlled substances. Seeking a warrant at this time would likely have led to unreasonable delay and the destruction of evidence. See Newman, 472 F.3d at 239 (noting a “fence jumper’s responsibility in giving rise to the exigency”); Rodea, 102 F.3d at 1407 (finding exigent circumstances when one of the occupants fled when the Agents first arrived); Rico, 51 F.3d at 501 n.10 (finding exigent circumstances when suspect fled the premises, noting, “if you are standing around in the front yard arresting people in the driveway, you need to make sure that there is not assistance to him by people in other parts of the premises … [o]r we hasten to add, that suspects inside are destroying evidence.”).

[posted 7/26]