From 1919-2014, it violated Michigan law to have an unlicensed dog over six months old, and state law and city ordinance permitted officials to kill them. In 2014, that changed. Plaintiffs became squatters in an abandoned house in Detroit, and police alleged that they did a $10 drug deal with an informant in November 2015. Police came to arrest and search, and they summarily shot plaintiffs’ dogs. They had three in the house, and one plaintiff was there alone with them, trying to put them up before the police entered. One passive dog was shot, and another was shot as it charged up the basement stairs showing its teeth. One was shot through a bathroom door. The defendants argued that the dogs were contraband, but they were not. Police cannot summarily kill the dogs of persons living in the places police search without violating the Fourth Amendment. Smith v. City of Detroit, 2018 U.S. App. LEXIS 28890 (6th Cir. Oct 15, 2018):
By guaranteeing process to dog owners before their unlicensed dogs are killed, Michigan law makes clear that the owners retain a possessory interest in their dogs. This is particularly so in the context of everyday property that is not inherently illegal, such as some drugs, but instead is subject to jurisdiction-specific licensing or registration requirements, such as cars or boats or guns. Just as the police cannot destroy every unlicensed car or gun on the spot, they cannot kill every unlicensed dog on the spot.
Further, even assuming Plaintiffs’ dogs were contraband, the result here would be the same. The district court held that the Fourth Amendment simply does not apply to protect contraband. That is wrong-and it has been wrong for at least forty years. In cases involving contraband, the Supreme Court has continued to ask whether a seizure was reasonable under the Fourth Amendment: A warrantless seizure of contraband is not reasonable if it was not “immediately apparent” to an officer that the item was contraband. Horton v. California, 496 U.S. 128, 136-37 (1990); see also Arizona v. Hicks, 480 U.S. 321, 326-28 (1987); Payton v. New York, 445 U.S. 573, 587 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).
Just like it applied to the stolen stereo equipment in Hicks, the Fourth Amendment applies to the unlicensed dogs here. And just like the seizure in Hicks, the officers’ seizures here were unreasonable. This case does not involve a five-year-old holding an open beer can; the officers here could not look at the dogs and know whether they were licensed. Further, there is evidence that the officers did not see each dog before shooting it.
Although Michigan law required the dogs to wear license tags, Mich. Comp. Laws § 287.267, the Officers could not tell that the dogs were unlicensed simply because they were not wearing tags. Dogs can be licensed but not wearing a license tag. The dogs could also have been under 6 months old and therefore not subject to the state licensing requirement. Mich. Comp. Laws § 287.262. Or the dogs could have been less than 4 months old or in Detroit for 30 days or less and thus not subject to the municipal licensing requirements. Detroit City Code §§ 6-2-1, 6- 2-2. Under these circumstances, it would not be immediately apparent to the police officers that the dogs needed to be licensed and were not.