CA3: Drug dog jumping into car on his own was not a search

Where a drug dog jumps into a stopped car on his own, without direction of the officer to conduct the sniff, it is not a search, and Place governs. A few other courts have reached the issue, and they are in accord. United States v. Pierce, 09-3865 (3d Cir. October 1, 2010):

In determining that Cole’s “interior sniffs” were not a search, the District Court was persuaded by the reasoning set forth in United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007), where the defendant, like Pierce, entered a conditional guilty plea and preserved the issue of the legality of a K-9 dog’s “interior sniffs,” which led to the recovery of substantial quantities of marijuana from the back seat of the van he was driving. Indeed, the District Court, Pierce, and the government agree that Hutchinson, and the cases cited in it, provide the legal framework for deciding when an interior dog sniff transforms into a “search.” (App. 14; Appellant’s Br. 12; Appellee’s Br. 15-16.) Although we affirmed in a not precedential opinion, we did not discuss this issue. United States v. Hutchinson, 316 Fed. App’x 137 (3d Cir. 2009).

We find that the district court’s decision in Hutchinson correctly applies the governing law to the facts germane to the Fourth Amendment issue. The Supreme Court has addressed the use of trained dogs to sniff for illegal drugs in various factual contexts. In United States v. Place, 462 U.S. 696 (1983), the Court applied the Terry stop-and-frisk principles to dog sniffs of luggage: “[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id. at 707.

. . .

Moving to the particular issue before us, the interior sniffs and alerts that led to the discovery of narcotics, both the Hutchinson decision and the District Court’s opinion here rejecting Pierce’s suppression arguments particularly relied on the Tenth Circuit’s reasoning in United States v. Stone that a trained narcotic dog’s instinctive action of jumping into the car does not violate the Fourth Amendment. 866 F.2d 359, 364 (10th Cir. 1989). Perforce, “instinctive” implies the dog enters the car without assistance, facilitation, or other intentional action by its handler. The Tenth Circuit recently reaffirmed Stone in United States v. Vasquez, 555 F.3d 923 (10th Cir. 2009), noting, “we have upheld the legality of such a sniff during a lawful detention when, as here, (1) the dog’s leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry such as a hatchback or a window, used by the dog.” Id. at 930 (citing Stone, 866 F.2d at 364; cf. United States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998)). The Eighth Circuit cited to Stone in its reasoning in United States v. Lyons, 486 F.3d 367 (8th Cir. 2007), where the K-9 dog under scrutiny, Capone, “stuck his head through the open passenger-side window and then sat down beside the front passenger door, his indication that he had found the strongest source of the odor of narcotics.” Id. at 370. …

How do you disprove that the officer hadn’t permitted the dog to do it before, so the dog has already learned that he jumps in open windows? In that situation, the officer has essentially trained the dog to jump in car windows, but didn’t specifically direct it in that case. Then what? All the officer has to say is that “He did it on his own.” Defense counsel will have to ask about the number of times it has happened in the past and then hope the officer is truthful.