ID: Drug dog’s nose through a car window before alerting is a search and a Jones trespass

A drug dog’s nose through a car window before alerting is a search and a Jones trespass. De minimis, yet, but still a trespass. There was no probable cause for the automobile exception, and the state waived standing by not arguing it below. State v. Howard, 2021 Ida. LEXIS 159 (Oct. 5, 2021):

Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception. Further, by simply adhering to the Jones test as it is formulated, courts, law enforcement, and the public benefit from the clarity of a bright line rule for determining when a non-search exterior sniff becomes a search. We hold: when a law enforcement drug dog intrudes, to any degree, into the interior space of a car during a drug sniff, without express or implied consent to do so, a search has occurred under the Fourth Amendment.

Also a drug dog trespass: Consent to an exterior dog sniff is not consent to a sniff of the interior. State v. Randall, 2021 Ida. LEXIS 160 (Oct. 5, 2021).