Drug-sniffing Dog’s Actions do not Violate “Search and Seizure” Rights

07/30/12

On Friday, the Cincinnati-based 6^th U.S. Circuit Court of Appeals found that the voluntary and instinctive leap of a drug-sniffing dog into a suspect's car does not violate the Constitution's ban on unreasonable searches and seizures. However, the appeals court held that in order to be exempted from the constitutional ban, it needs to be proved that the dog jumped voluntarily and not at the prodding of a police officer. In such a case, the sniffing inside a vehicle by the canine does not constitute a ‘search' that requires legal justification under the Fourth Amendment.

Writing for a unanimous three-judge panel, Judge Karen Caldwell observed, “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.”

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In the instant case before the court, a narcotics dog was sniffing the exterior of a car in Tennessee in 2009, when the dog jumped through the driver's open window and homed in on a shaving kit on the passenger seat in which drugs were found. The trial court accepted the evidence and convicted David Sharp to thirty years in prison for intent to distribute meth.

The 6^th Circuit's decision is in line with the stance held by the 3^rd, 8^th and 10^th circuits.

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Derek Diaz, the lawyer for Sharp, said “If police aren't allowed to breach the interior of a car, then the dogs shouldn't be either.” Diaz is representing Sharp pro bono upon being appointed by the court.

William Killian, the U.S. Attorney for the Eastern District of Tennessee said that the search would have been unconstitutional if the police had trained the dog to always jump through windows. He added, “Absent that, the instinctive acts of the dogs are not illegal search.” However, Sharp's lawyer holds that the behavior of police dogs is a result of police training and not the behavior seen in ordinary canines.

Two Florida cases involving narcotics dogs are scheduled to be heard by the Supreme Court on its next term. In one of those cases, the Supreme Court would decide whether police could use drug-sniffing dogs outside the homes of individuals. In the other, the high court would consider whether a police dog's alert to substance on a truck door handle justified a police search of the vehicle given that there was insufficient evidence to prove the dog was a reliable drug detector.