Dog sniff of interior of car was valid where the dog jumped into the car on his own. United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007):
The reasoning of Stone was followed in United States v. Watson, 783 F. Supp. 258 (E.D. Va. 1992), where the district court denied a defendant’s motion to suppress narcotics discovered in his open vehicle while it was parked in a valet-parking location of a hotel with the driver’s-side door open. In that case, a canine officer kept the vehicle under observation while other officers were searching defendant’s hotel room and, ultimately, in placing the defendant under arrest following the discovery of narcotics within the hotel room. Following the arrest, a police officer came downstairs to coordinate with the canine officer and, while there, asked the officer to “do a search of the car.” Id. at 262. At this point, “[t]he drug-sniffing dog proceeded to climb into the car where he ‘started biting on the passenger seat, indicating that he hit on some type of narcotic smell, either on that seat or underneath it.'” Id. Thereafter, an officer “popped the trunk lever located next to the driver’s seat” and the dog jumped in the trunk of the car, where he bit on a plastic foam food container. Id. The officer proceeded to open the container and discovered approximately $16,000 in bundled cash. Id.
Noting that it was clear that the officers were entitled to use the dog to conduct an exterior sniff of the vehicle, the court found that “[t]he next question … is whether by jumping in the open passenger door, the dog caused what is supposed to be a very limited encounter to escalate into a violation of the Fourth Amendment.” Id. at 265. Relying exclusively on Stone, the district court concluded that the search was lawful because the court had been presented “with no evidence that the dog was encouraged to jump in the car by its handler.” Id. Finding that the dog’s act of alerting to the passenger seat provided probable cause to believe the automobile contained narcotics, the court upheld the subsequent search of the foam container in the trunk and the seizure of the cash located therein. Id.
The reasoning of Stone has been applied in similar and analogous contexts in other cases involving canine sniffs that became relatively more invasive as the sniff progressed. See, e.g., United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (upholding a canine sniff of the interior of an apartment that revealed crack cocaine where the police and canine were in the apartment lawfully to look for a suspected intruder, where dog may have moved dresser drawers in the course of the sniff, thereby exposing the contraband contained in the drawers to plain view; the court found that the dog’s “instinctive actions” in moving the dresser drawers did not render the sniff constitutionally infirm); United States v. Lyons, 957 F.2d 615, 616-17 (8th Cir. 1992) (upholding the seizure of narcotics discovered in defendant’s bag after drug-detecting canine alerted to, and immediately tore into, the bag in the course of a sniff; relying on Stone and rejecting defendant’s argument that the dog’s independent act of tearing into the bag tainted the sniff and subsequent seizure); United States v. Lyons, No. 05-3099, 2006 U.S. Dist. LEXIS 14454, *11-21 (D. Neb. Feb. 15, 2006) (upholding a dog sniff where the dog’s nose penetrated the vehicle’s open window, even where officer directed dog to sniff window area, finding that the dog detected the odor of drugs while outside the vehicle and the act of sticking its head inside the car was not directed by the handler but was “initiated by the dog himself”); United States v. Lewis, No. 05-69, 2005 U.S. Dist. LEXIS 38142, *25-26 (W.D. Mich. Dec. 27, 2005) (after questioning sua sponte whether a dog’s entry into a vehicle tainted the validity of a dog sniff, the court concluded that a dog’s sniff of vehicle’s interior was lawful because the evidence established that the driver’s side window was down when the sniff commenced and, apparently, because the court found dog’s entry into the vehicle was prompted by the odor of the narcotics that were contained therein rather than the actions of its handler); see also United States v. Liberto, 660 F. Supp. 889, 891 (D.D.C. 1987) (predating Stone) (where narcotics dog sniffing in a public passageway outside the defendant’s train compartment lunged into his open roomette and sniffed in the direction of a suitcase located on a rack above the floor, held that the lunge was not a search under the Fourth Amendment, relying on Place). But cf. United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998) (suppressing contraband discovered in a van following a canine sniff of the interior where officers lacked any reasonable suspicion that the van contained narcotics and where officers opened the van’s door, allowed the open van to sit on the side of the road while they waited for a canine unit to arrive, and where the dog’s handler unleashed the dog as it neared the open door; distinguishing Stone because the evidence demonstrated that the officer endeavored to facilitate a sniff of the van’s interior).
As the foregoing demonstrates, the majority of federal courts that have confronted questions similar to that presented in this case have concluded that canine sniffs of the interior of a vehicle or other container are lawful, but suggest that such interior sniffs may become constitutionally infirm in the event that the interior sniff is accomplished or facilitated by the officer-handler.
Comment: And, of course, the officer always testifies that the dog jumped in the car on its own, and the officer never encouraged it. Right. In fact, in the videos I’ve been seeing in court, the officer suspiciously turns the audio on and off at various times. Thus, even with a videotape, the officer could tell the dog to jump into the open door or window and then just deny it because there is no sound and one cannot see his mouth move because of his body being turned. They do know, after all, that they are being videotaped.
A Franks violation was not shown by reference to “items” on defendant’s criminal history because it did not suggest convictions or by leaving out that there was another apartment nearby which could explain the unusual traffic going to and coming from defendant’s apartment. United States v. Santos, 2007 U.S. Dist. LEXIS 3723 (D. Mass. January 17, 2007).*
Plaintiff failed in his claim of false arrest because there was probable cause for his detention by the police where he went to work at 3:00 a.m. by crawling over a back fence from behind a neighboring K-Mart that was also closed. It had all the appearances of a crime in progress, although plaintiff had permission to enter the property as he did and had in the past with the permission of his boss. Harris v. City of Southaven, 2007 U.S. Dist. LEXIS 3844 (N.D. Miss. January 17, 2007).*
Defense counsel was not ineffective for not arguing that seizure of allegedly illegally seized shotgun should be excluded from sentencing because circuit law already permitted illegally seized evidence to be admitted unless “such evidence might be excluded if the police intentionally violated the Fourth Amendment for the purpose of sentence enhancement,” which the court already found the officers did not. Guzman v. United States, 2007 U.S. Dist. LEXIS 3823 (D. R.I. January 17, 2007).
