S.D.W.Va.: Officer entering car to roll up windows and turn on fan to aid drug dog sniff was trespass under Jones

Defendant was stopped for a traffic offense, and the officer thought it suspicious that he insisted on calling his lawyer on his cell phone. (Never before in 1,000 stops.) The officer told him not to and he did anyway. Defendant also wouldn’t look at the officer and his breathing escalated. All this added up to reasonable suspicion. By this time, bystanders were accumulating and talking to the officers. “Another individual complained that law enforcement was ‘“always bothering people”’” or words to that effect. They called in a drug dog, and that was “a moment of truth” because, if the dog alerted, a search would occur, but if it didn’t, defendant would be let go. The officer entered the car over defendant’s objection to turn on the fan and roll up the windows to make it more likely that the dog would alert, and the dog did alert. That entry violated the Fourth Amendment under Jones because it trespassed on the interior of the car. United States v. Taylor, 2013 U.S. Dist. LEXIS 68388 (S.D. W.Va. May 14, 2013), adopted in part 2013 U.S. Dist. LEXIS 113235 (S.D. W.Va. August 12, 2013):

Mr. Taylor explicitly prohibited law enforcement from entering the Buick. Detective Daniels ignored that prohibition and entered the Buick prior to Patrolman Howell’s arrival. If performed in accordance with the permeation practices of the Charleston Police Department, he additionally rolled up the vehicle’s windows, turned the key to the “on” position, and then energized the interior fan. The purpose was to blow any aromas in the vehicle out toward the exterior, where Jux [the dog] would soon be sniffing.

Despite Patrolman Howell’s apparent reluctance to recognize the utility of this practice, it seems evident that it is designed to improve the chances that the K-9 will sense the presence of controlled substances and, using that information, alert on the vehicle and establish probable cause. As in Jones and Jardines, law enforcement physically occupied private property — the Buick — for the purpose of obtaining information — the otherwise undetectable, or less easily detected, odors of controlled substances — found therein. Probable cause was lacking for that unreasonable search. The search thus transgressed the Fourth Amendment.

In that regard, it is worth restating the context of the stop and ensuing search. The sole source of probable cause to search the Buick was Jux’s alert. Without it, Mr. Taylor, by law enforcement’s admission, would have been written a warning and sent on his way. With it, the vehicle was searched and the illegal weapon was recovered. It is thus of some moment that the alert, which ultimately yielded no controlled substances, may have occurred only due to the permeation process reintroducing into circulation in the vehicle some controlled substance that was present therein at a prior time. That fact, in addition to law enforcement entering private property without probable cause — and against the property owner’s explicit instructions — plainly illustrates the unreasonable nature of the search.