E-Newsletter Edition: February 6, 2008
Response Provided By:
Always note that state law may be more restrictive on police power than the U.S. Constitution.
FYI: a NMSP K-9 officer said there was “case law” preventing establishment of PC by dog sniff of residence. However, he could never offer citation – and I cannot find any such ruling.
State v. Trudelle, 2007 NMCA 66 discusses seizure of a residence (pending arrival of search warrant; see para 17) and finding that such a seizure of the structure does not equate to seizure of contents for suppression purposes.
Now, if a dog sniff presents PC, why could not the structure/residence be secured pending receipt of a search warrant?
Dog sniff is not a search (State v. Van Cleave, 131 NM 82, para 8 & 13 NMSC 2001) Dog sniff & alert is PC (State v. Villanueva, 110 NM 359, 362 NMCA 1990 citing State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (Ct.App.1979)
(For purposes of this e-mail & query, assume dog sniff occurs at a non-private location (outside residence & curtilage) and there is no reason to believe a threat exists within the structure creating exigency.)
This week’s question raises the issue of whether a dog sniff of a residence can be used to establish proper probable cause for purposes of obtaining a search warrant. This raises two distinct issues. First, is a dog sniff of a residence any less reliable than the dog sniff of another inanimate object such as luggage or an automobile? Second and more importantly, does the sniff of a residence have any more significant constitutional restraints than other inanimate objects?
Short Answer: It depends. The United States Supreme Court has not ruled on the use of a canine to sniff a house from an area where the officer is allowed to be. The first question is an evidentiary question that is likely answered by scientific and certification testimony given at trial and not a Constitutional question. The second question has been answered in both the negative and affirmative by different state courts.
In United States v. Place,i the United States Supreme Court held that a canine sniff by a drug detection dog of the exterior of luggage in a public place, would not implicate the Fourth Amendment. If a drug detection dog were to alert on the luggage, officers would then have probable cause to believe that the luggage contained narcotics. This principle was followed with respect to motor vehicles as well. As with all police action, the underlying core transaction would still have to be valid, otherwise the sniff and development of probable cause would be the fruit of the poisonous tree. For example, if officers were to stop a vehicle for no justifiable reason, the sniff and subsequent search would be invalidated.
In United States v. Caballes,ii the United States Supreme Court re-examined the issue of canine sniffs of lawfully stopped motor vehicles. A state trooper, Daniel Gillette, of the Illinois State Police stopped Caballes for speeding on an interstate highway. When the Gillette called out on the stop, a second trooper, Craig Graham, a member of the agency’s drug interdiction team, proceeded to the scene with a narcotics detection dog. As Trooper Gillette wrote Caballes a warning ticket, Trooper Graham walked his canine around the vehicle. The dog alerted on the trunk prompting the officers to conduct a search. The officers seized marijuana from the trunk. The court noted that the entire chain of events lasted less than 10 minutes.
Caballes appealed his case, arguing that before officers could utilize a drug detection canine, they must have some level of suspicion to believe that the automobile contains narcotics. The Illinois Supreme Court agreed with Caballes, leading to the state’s appeal to the United States Supreme Court. The only question addressed by the Court was whether officers need some level of suspicion before utilizing a canine to sniff the exterior of a lawfully stopped vehicle.
In its analysis of the case, the United States Supreme Court noted that a valid traffic stop that is prolonged beyond its initial purpose may violate the Constitution. The Court asserted: “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.”
The Court went on to conclude that a canine’s sniff of the exterior of a vehicle while the lawful traffic stop was occurring would not violate the rights of a citizen. Only in cases where the stop was prolonged beyond its original purpose in order for the canine to respond to the scene and conduct the sniff would rights be violated.
There seems to be no question that a home is an inanimate object however one must recognize the heightened protections that homes have been given under the Constitution. In State v. Raab,iii an appellate court in Florida examined a case that is on point with the question presented here. Officers of the Broward County Sheriffs’ Office received an anonymous tip that Raab had a marijuana grow in his home and began to investigate. While keeping Raab under surveillance they observe Raab commit a traffic violation and pulled him over. During the pre-textual traffic stop the officers used a drug-detecting canine to sniff Raab’s car. The sniff yielded an arrest for marijuana. The officers then took the canine to Raab’s home and walked up to the front door where the canine alerted. The officers secured the home and obtained a search warrant which led to the discovery of additional narcotics evidence which Raab sought to suppress.
“The question emphasized by the parties in this case is whether a dog sniff at the exterior of a house is a search under the Fourth Amendment. In order to be classified as a search, law enforcement conduct must violate a ‘constitutionally protected reasonable expectation of privacy.’” In examining this case, the court emphasized the enhanced protection that homes have always been given with respect to Constitutional protection. The court then turned to Kyllo v. United States,iv where the United States Supreme Court examined the use of thermal imaging during a flyover of a home to obtain evidence of a marijuana grow in the house based upon an unusual heat source caused by specialized heat lamps. In that case, the Court held that the use of this technology to invade the sanctity of a home constituted a 4th Amendment search and could not be conducted without a search warrant even though officers using the equipment were flying over the home in the free airspace.
In applying Kyllo, the Florida Appellate Court held: “Given the shroud of protection wrapped around a house by the Fourth Amendment, we conclude that Kyllo v. United Statescontrols the outcome of the case at bar.” Taking Kyllo as the applicable principle, the court concluded: “This logic is no different than that expressed in Kyllo, one of the recent pronouncements by the United States Supreme Court on law enforcement searches of houses. The use of the dog, like the use of a thermal imager, allowed law enforcement to use sense-enhancing technology to intrude into the constitutionally-protected area of Rabb’s house, which is reasonably considered a search violative of Rabb’s expectation of privacy in his retreat. Likewise, it is of no importance that a dog sniff provides limited information regarding only the presence or absence of contraband, because as in Kyllo, the quality or quantity of information obtained through the search is not the feared injury. Rather, it is the fact that law enforcement endeavored to obtain the information from inside the house at all, or in this case, the fact that a dog’s sense of smell crossed the “firm line” of Fourth Amendment protection at the door of Rabb’s house. Because the smell of marijuana had its source in Rabb’s house, it was an “intimate detail” of that house, no less so than the ambient temperature inside Kyllo’s house. Until the United States Supreme Court indicates otherwise, therefore, we are bound to conclude that the use of a dog sniff to detect contraband inside a house does not pass constitutional muster. The dog sniff at the house in this case constitutes an illegal search.” While the denial of certiorari by the United States Supreme Court has no binding authority, it is important to note that the State of Florida was denied a reviewed of this decision by the United States Supreme Court.
Florida is not the only state whose court has considered this issue. In Fitzgerald v. State of Maryland, the Court of Appeals of Maryland refused to apply Kyllo to a dog sniff and found that the sniff of an apartment from the hallway was not a search under the 4th Amendment.v In Fitzgerald, officers were following up on an anonymous tip and took a drug-detecting canine to the apartment building where Fitzgerald and his girlfriend, Mancini, lived. The officers walked the dog by four different apartments at which time the dog alerted only on Fitzgerald/Mancini’s apartment. The officers then obtained a search warrant for the apartment. Like the Florida court in the Raab case, the Maryland court noted that this was a case of first impression in Maryland.
In its analysis the Maryland court started with a similar analysis to the Florida court, first citing the foundation cases on dog sniffs, specifically the Place case. The court then turned to the comparison of the Kyllo case and rejected its application to dog sniffs. The court cited the fact that the United States Supreme court in Kyllo was concerned with “advancing technology” and its impact on the sanctity of the home. “In sum, we conclude that binding and persuasive authority compel our holding that a dog sniff of the exterior of a residence is not a search under the Fourth Amendment. To be sure, the dog and police must lawfully be present at the site of the sniff.”
As noted these are cases of first impression in the states cited. A review of reported decisions in New Mexico did not show a case on point. The law here is unstable and we will not have an answer under the 4th Amendment until the United States Supreme Court rules on such a case. Until that time officers are going to have to rely on local court decisions to set the precedent in this area.
- United States v. Place, 462 U.S. 696 (1983).
- United States v. Caballes, 543 U.S. 405 (2005).
- State v. Raab, 920 So.2d 1175 (Ct. App. Florida 2006 ) (Review denied by State v. Rabb, 933 So. 2d 522, 2006 Fla. LEXIS 1297 (Fla., 2006) US Supreme Court certiorari denied by Florida v. Rabb, 2006 U.S. LEXIS 9019 (U.S., Nov. 27, 2006).
- Kyllo v. United States, 533 U.S. 27 (2001).
- Fitzgerald v. State, 384 Md. 484 (Court of Appeals Maryland 2004).