CO: Opening car door to aid drug dog sniff was a search

The drug dog officer facilitated the drug-detection dog’s entry into Pham’s vehicle by leaving the door open and partially closing and reopening it to allow the dog to enter. That constituted a search under the Fourth Amendment, following Felders v. Malcolm from the Tenth Circuit. That search was conducted without probable cause, and the officers had no indication defendant was involved in criminal activity or that his vehicle contained contraband beyond the traffic violation. The court recognized that instinctive action from the dog likely would not constitute a search, but that is not this. People v. Dinh Pham, 2025 CO 4, 2025 Colo. LEXIS 89 (Feb. 3, 2025):

[*P29] Specifically, as the People contend, some federal courts have perceived no Fourth Amendment violation when a drug-detection dog acted “instinctively” and without facilitation by its handler in entering a vehicle. See, e.g., United States v. Sharp, 689 F.3d 616,620 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209,214-15 (3d Cir. 2010). Accordingly, even the case law on which the People rely supports the conclusion that when a police officer, without probable cause, facilitates a drug-detection dog’s entry into a vehicle during a dog sniff, it constitutes a search. See Sharp, 689 F.3d at 620; Pierce, 622 F.3d at 214-15.

[*P30] Here, we need not confront the difficult question of whether and when a dog acts instinctively because the trial court found, with ample record support, that the police agents in this case facilitated the dog’s entry into Pham’s vehicle. Specifically, the record, including footage from Agent Winters’s body-worn camera, shows that an agent ordered Pham out of the vehicle, putting his hand on the top of the door when Pham exited so that he could not have closed the door had he tried. The agents then immediately conducted a pat down of Pham and directed him away from the vehicle, leaving the door open. Once Pham was away from the vehicle, Agent Winters deployed the drug-detection dog, and when the dog got to the open driver’s side door, Agent Winters partially closed the door to allow him and the dog to maneuver around it. Agent Winters then reopened the door sufficiently to allow the dog to place his head and front paws inside the vehicle, at which point the dog alerted to the presence of drugs.

[*P31] On these facts, and in light of the above-described case law, we conclude that the law enforcement officers in this case conducted a search within the meaning of the Fourth Amendment when they facilitated the dog’s entry into Pham’s vehicle. This was not a scenario in which the officers merely left a door open so that the dog could get a better sniff of the ambient air. Rather, the record reflects, and the trial court properly found, that, through their own actions, the officers facilitated the dog’s entry into Pham’s vehicle so that the dog could sniff inside. (Notably, the dog did not alert when sniffing around the vehicle’s closed doors; he alerted only after entering the vehicle.)