CAN INSTINCTIVE ACTIONS OF A POLICE CANINE DURING A FREE-AIR SNIFF VIOLATE THE FOURTH AMENDMENT?

In 2018, the Eighth Circuit Court of Appeals decided United States v. Pulido-Ayala[i], in which the court examined if a sniff of a vehicle by a canine violated the Fourth Amendment when the canine jumped into the car during the sniff.  The facts, taken directly from the case, are as follows:

The incident in question occurred after the Missouri Highway Patrol and Lafayette County Drug Task Force set up a ruse checkpoint to investigate drug trafficking on Interstate 70. Immediately before an exit ramp, law enforcement officers placed several signs that announced a fictitious drug checkpoint located a quarter-mile ahead. The chosen exit had no amenities, so drivers ordinarily would not leave the highway there for fuel or food.

On the morning of October 8, 2015, Detective Hammond of Lafayette County saw a red Mini Cooper traveling east on Interstate 70 in the left lane. Hammond testified that after the car passed the checkpoint signs, it made an “abrupt jerk” to the right lane and exited at “a high rate of speed.” The vehicle changed lanes without using a turn signal, failed to obey the stop sign at the top of the exit ramp, and immediately returned to the highway on the other side, heading west and away from the fictitious checkpoint.

Hammond notified colleagues, and two officers in a patrol car began to follow the Mini Cooper. The patrolmen activated [**3]  their lights and siren to stop the vehicle. There were two men in the Mini Cooper; Pulido-Ayala was the driver. A state trooper brought Pulido-Ayala back to the patrol car. The second officer, Sanders, remained near the Mini Cooper and spoke with the passenger, Sandoval-Herrera, through the open front passenger’s window.

About ten minutes after the stop, Patrol Sergeant McGinnis arrived at the scene with a drug dog named “Jampy” in his vehicle. Jampy was a German Shepherd trained to detect the odor of illegal narcotics with a track record of reliability over two years. After a brief conversation with Sanders and Sandoval-Herrera, McGinnis decided to employ Jampy to conduct a narcotics sniff.

Before retrieving the dog from his car, McGinnis asked Sandoval-Herrera whether he wanted to remain in the vehicle during the dog sniff or get out. Sandoval-Herrera  [*318]  asked to leave the car, and a video recording of the incident shows that he opened the door and walked away. As Sandoval-Herrera exited the car, Sanders had his hand on the door, and neither Sandoval-Herrera nor Sanders closed the door after Sandoval-Herrera was outside the vehicle.

McGinnis brought the canine to the rear of the Mini Cooper. [**4]  He later testified that his intent was to start down the driver’s side and to walk Jampy clockwise around the vehicle. McGinnis told Jampy to “find it”—the signal to begin the sniff—and the dog immediately pulled McGinnis toward the open door on the passenger’s side. Jampy jumped into the car through the opening and “alerted” (i.e., signaled the presence of drugs) at the fender area. McGinnis pulled the dog out of the opening and attempted to walk him clockwise around the vehicle. Again, Jampy snapped his head back and went through the open door, alerting at the same location. Based on the canine’s alert, officers searched the Mini Cooper and found three kilograms of cocaine inside the fender of the vehicle.[ii]

Pulido-Ayala was charged under federal law with aiding and abetting the crime of possession of cocaine with intent to distribute.  He filed a motion to suppress, which the district court denied.  Pulido-Ayala appealed the denial of the motion to suppress to the Eighth Circuit Court of Appeals.

The court of appeals first discussed the legal principles relevant to canine sniffs of vehicles and stated

[T]he use of the drug-sniffing dog on the exterior of a vehicle during a valid traffic stop” is not a search and “does not infringe upon any Fourth Amendment rights.” United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005).

The inside of a car, however, is typically a different story. Police ordinarily cannot search the interior of an automobile unless they have probable cause to believe that the vehicle contains contraband or other evidence of a crime. California v. Carney, 471 U.S. 386, 392, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985); United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). A drug dog is an instrumentality of the police, and the actions of “an instrument or agent” of the government normally are governed by the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).[iii]

The government argued that, according to United States v. Michael Lyons[iv], if the police are not engaged in misconduct with the canine, the instinctive action of the canine, such as entering a car, does not violate the Fourth Amendment.  However, in Lyons, a canine was conducting a sniff of a package; the canine first alerted on the package, and then instinctively tore the package open.  The court held that the instinctive actions of the canine did not amount to a Fourth Amendment violation and the contents of the package would have inevitably been discovered because the alert provided probable cause for a search warrant.

In Pulido-Ayala’s case, the district court applied that holding to mean that the instinctive action of Jampy jumping into the car did not violate the Fourth Amendment, as long as the officer did not intend to engage in misconduct with the canine.  The court of appeals discussed subsequent Supreme Court precedent that calls that rationale into question.  Specifically, the court of appeals stated

[S]ince the Lyons cases, the Supreme Court has emphasized that with two “limited exception[s]” for special-needs and administrative searches, the subjective intent of police officers is almost always irrelevant to whether an action violates the Fourth Amendment. Ashcroft v. al-Kidd, 563 U.S. 731, 736-37, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (internal quotation marks omitted). There is reason to doubt, therefore, whether the district court’s reading of the Lyons cases endures.[v]

In other words, since the Fourth Amendment is typically based upon “objective reasonableness,” rather than the subjective intent of an officer, the officer’s lack of ill intent in handling the canine is likely not relevant to whether a canine violates the Fourth Amendment by entering a vehicle to conduct a search rather than remaining outside the vehicle and conducting a free-air sniff.

However, the court noted that in Pulido-Ayala’s case, they need not decide that issue because Jampy alerted prior to entering the car, thus providing probable cause to enter and search the car.  The court noted the district court found the following:

[W]hen Sergeant McGinnis commanded the canine to find drugs, the dog “immediately” pulled McGinnis toward the open passenger door. Given the strong reaction of the trained drug dog while it was outside the car, together with Pulido-Ayala’s suspicious reaction to the drug checkpoint, we conclude that police had probable cause to believe that the vehicle contained contraband in the moment before Jampy actually crossed the threshold into the interior of the Mini Cooper.[vi]

Thus, there was probable cause to enter and search the car.

Pulido-Ayala argued that the officer caused the search by leaving the car door open, but the court noted that the passenger decided to exit the vehicle and the passenger made no attempt to close the door.  The court stated

[T]he officers had no responsibility to close the door; they simply took the situation as they found it. Insofar as the dog’s ability to perceive the odor of drugs from outside the car was enhanced by the open door, the situation was created voluntarily by the passenger, and there was no unlawful search in leaving the door open.[vii]

Therefore, the court of appeals affirmed the denial of the motion to suppress.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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[i] 892 F.3d 315 (8th Cir. 2018)

[ii] Id. at 317-318

[iii] Id. at 318 (emphasis added)

[iv] 957 F.2d 615 (8th Cir. 1992)

[v] Pulido-Ayala, 892 F.3d at 319 (emphasis added)

[vi] Id.

[vii] Id. at 320 (emphasis added)