©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
It is well established that a free air sniff by a police canine of the exterior of an automobile during the normal time frame for a traffic stop does not implicate the Fourth Amendment. This is because a person does not possess a reasonable expectation of privacy in the odors emanating from their vehicle and the canine is in a place he is lawfully allowed to be – particularly outside of the car in a public place.
On July 27, 2012, the Sixth Circuit Court of Appeals decided the United States v. Sharp [i] which addresses an unintended variation of the free air sniff. The facts of Sharp are as follows:
After Sharp was arrested on an unrelated warrant, the police seized 154 grams of methamphetamine, 10.5 grams of marijuana and drug paraphernalia found inside a shaving kit on the passenger seat of Sharp’s car. The police searched the shaving kit after a trained narcotics detection canine jumped into the car through the driver’s window and alerted to the presence of drugs inside the shaving kit.
When the dog and his police officer-handler arrived at the scene, the driver’s window was down. The handler gave the dog the command to search for drugs, and the dog sniffed the exterior of the vehicle, starting at the front passenger’s side headlight. The dog moved along the front of the car toward the driver’s side of the vehicle. The dog passed the driver’s door, went halfway down the rear driver’s side door, stopped, turned his head back towards the driver’s door and walked to it. Then, without formally alerting to the presence of narcotics, the dog bounced once and jumped through the open driver’s window into the car. After jumping through the window, the dog went into the back seat, then back to the front and looked up or alerted on the front passenger seat. The handler asked the dog to “show me,” and with his nose, the dog poked the shaving kit on the front passenger seat. [ii]
Sharp filed a motion to suppress the drugs which was denied. He was subsequently convicted of federal drug offenses by a jury, and he appealed the denial of his motion of suppress.
One of the issues on appeal was whether the canine’s jump through Sharp’s open window and sniff inside his car was an unlawful search under the Fourth Amendment. In other words, Sharp argued that the dog was not lawfully present in his car because dog entered the car prior to formally alerting on vehicle. As such, he alleged the sniff inside the car was conducted in an area the dog was not lawfully allowed to be such that the product of the sniff should be rendered inadmissible.
The Sixth Circuit first noted that, while they have not addressed this specific issue, in the United States v. Reed, they previously held that “absent police misconduct, the instinctive acts of trained canines . . . do not violate the Fourth Amendment.”[iii] Reed involved an incident where police released a canine into an apartment to search for burglars and the dog ended up alerting to presence of drugs. Since the dog acted in that incident instinctively, rather than at the police officers command, the alert for drugs did not violate the Fourth Amendment.
The Sixth Circuit also examined case law from other circuits that have addressed the specific issue presented in Sharp’s case. The court stated:
The Tenth Circuit was the first court to conclude that even though a drug detection dog jumped into a car through an open hatchback, the “dog’s instinctive actions d[o] not violate the Fourth Amendment” because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car. United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) … The Tenth Circuit recently reaffirmed this distinction, stating that “we have upheld the legality of such a sniff during a lawful detention when . . . (1) the dog’s leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry, such as a hatchback or window, used by the dog.” United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009). [iv]
Thus, the key to the legality of such an incident is that (1) the dog acted on its own rather than at the command of the officer and (2) the officer did not order the driver to leave the point of entry open so that the dog could enter. In contrast, the Tenth Circuit has held that a dog’s entry and sniff inside a car was a Fourth Amendment violation when the police officers opened the door and facilitated the sniff of the vehicles interior. [v]
The Sixth Circuit further stated:
The Eighth and Third Circuits have adopted the Tenth Circuit’s reasoning first articulated in Stone. The Eighth Circuit held that “[a]bsent police misconduct, the instinctive actions of a trained canine do not violate the Fourth Amendment.” United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007). Additionally, the Eighth Circuit made clear that officers do not have an “affirmative duty to close the windows in preparation for the dog sniff.” Id. The Third Circuit, citing Stone and Vasquez, held that a dog’s instinctive jump into a car does not violate the Fourth Amendment and that “instinctive implies the dog enters the car without assistance, facilitation, or other intentional action by its handler.” Pierce, 622 F.3d at 214 (internal quotation marks omitted). [vi]
Thus, the Sixth Circuit stated the rule as follows:
While it is a Fourth Amendment violation for a narcotics canine to be trained to jump into cars, it is not a Fourth Amendment violation for a dog to jump into a car on its own volition and instinct when sniffing for drugs, as long as the dog’s behavior has not been facilitated by law enforcement. [vii]
While Sharp did not argue that the police had trained this canine to jump into cars, he did argue that this dog had done so in the past and had a habit of doing so. However, the Sixth Circuit stated that the dog’s past was irrelevant. The only relevant inquiry is whether the dog had been trained to jump into cars (it had not) or whether the police officer did something to encourage or facilitate the dog jumping into the car (he did not). As such, it was not a Fourth Amendmentviolation when the dog jumped into Sharp’s car.
Thus, the Sixth Circuit upheld 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.
[i] No. 10-6127, 2012 U.S. App. LEXIS 15511 (6th Cir. Decided July 27, 2012)
[ii] Id. at 2-3
[iii] Id. at 6 (quoting U.S. v. Reed, 141 F.3d 644, 650 (6th Cir. 1998))
[iv] Id. at 7-8
[v] Id. at 7 (citing United States v. Winningham, 140 F.3d 1228 (10th Cir. 1998))
[vi] Id. at 8
[vii] Id. at 10