CA10: Officer’s sticking head in window to conduct a sniff was a search without probable cause

During a traffic stop, the officer stuck his head 2″ in the car to conduct his own sniff, and that was a search. Caballes is distinguished because, although involving a dog, that sniff was of the exterior of the vehicle. The government relied on probable cause for the search, but it is clear that the probable cause did not exist until after the search. Therefore, its reliance on the automobile exception is unavailing. United States v. Montes-Ramos, 347 Fed. Appx. 383 (10th Cir. 2009) (unpublished):

The only basis we can see for concluding Rodriguez’s sniff was not a search is by analogy to cases involving canine sniffs. In Illinois v. Caballes, the Court held a canine sniff of the exterior of a vehicle during a lawful traffic stop “does not rise to the level of a constitutionally cognizable infringement.” 543 U.S. 405, 409 (2005). The Court explained:

The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Id. at 410. We are attracted by the reasoning in Caballes; but it is significant that the dog sniff at issue there was conducted on the exterior of the car. While it revealed information about the car’s contents, the dog did not actually intrude into the car’s protected space. Moreover, because a drug dog is trained to alert only to the presence of drugs, its “search” will only disclose information about the presence of certain contraband; it will reveal nothing about other (presumably innocent) smells. Though farfetched, Rodriguez’s sniff could have revealed information about Montes-Ramos’ private, lawful activities–the perfume of a recently departed passenger, a recently consumed lunch, a wet dog–as well as illegal activities–contraband or perhaps a decomposing body.

We conclude a police officer’s intentional act of intruding a vehicle’s air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment. It would be different if Rodriguez had smelled marijuana prior to leaning into Montes-Ramos’ vehicle. Under the plain view doctrine, “a law enforcement officer [may] seize evidence of a crime, without violating the Fourth Amendment, if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent … and (3) the officer had a lawful right of access to the object.” United States v. Angelos, 433 F.3d 738, 748 (10th Cir. 2006) (quotations omitted). The plain view doctrine is equally applicable to plain smells, such that no search occurs if a police officer detects an odor of illegal drugs, alcohol, chemicals or the like from a location in which he is entitled to be. See id. at 748 (“The plain smell doctrine … is simply a logical extension of the plain view doctrine ….”) (quotations omitted); United States v. Merryman, 630 F.2d 780, 784 (10th Cir. 1980) (“This Circuit has held that the smelling of marijuana by an experienced observer furnishes probable cause for the search.”); see also Kyllo, 533 U.S. at 43-44 (Stevens, J., dissenting) (“[A]romas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building.”). But Rodriguez did not smell marijuana prior to leaning his head into Montes-Ramos’ vehicle. Instead he was suspicious Montes-Ramos might be trafficking drugs and leaned his head in “[f]or assurance.” (R. Vol. III at 16.)

[Update: Also posted on Kansas Defenders blog.]