D.Minn.: Drug dog going in open window of vehicle did not violate Fourth Amendment

A drug dog going into an already open window did not violate the Fourth Amendment. Even if that was a potential problem, there already was probable cause at that point. United States v. Williams, 690 F. Supp. 2d 829 (D. Minn. 2010):

Although in the case at hand, Defendant Capers did not consent to a search of her vehicle, her consent was not necessary for the dog sniff conducted on the exterior of the Cavalier. The dog, trained and certified in narcotics detection, then alerted to the passenger door of the vehicle, which created independent probable cause to conduct a search for controlled substances.

Moreover, the fact that the passenger window of the vehicle was open, creating an opportunity for the dog to breach the interior of the vehicle, did not render the search unlawful. See United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007) (holding that a canine search of a vehicle was not rendered illegal, under the Fourth Amendment, by the fact that the vehicle’s windows were open where the passenger window was opened by the passenger without any order or request from the trooper, the trooper did not order that the windows remain open, and the canine’s handler did not direct the canine to stick his head through the window). But see United States v. Winningham, 140 F.3d 1328, 1329-31 (10th Cir. 1998) (holding a search illegal where officers opened the door of a suspect’s van, given that an officer may not open a vehicle to create the opportunity for a drug dog to go where the officer himself cannot go, although a suspect may). The squad car video confirms that Trooper Schneider did not order the passenger window to remain open. (See Gov’t Ex. 1.)

Although it is unclear from the video whether the dog entered the vehicle pursuant to a non-verbal command, assuming, without deciding, that Trooper Schneider directed the dog through the open passenger widow, any such command did not invalidate the subsequent search. This Court finds that, as the open window was the strongest source of the odor, there is little doubt that the dog would have ultimately detected the narcotics, “even if he had been reined back and held outside the plane of the window track.” Lyons, 486 F.3d at 374 (upholding a district court’s finding that the dog would have inevitably smelled the odor of drugs).