North Carolina’s appellate courts have recently issued two important opinions on the use of drug dogs, and the United States Supreme Court has granted certiorari in another drug dog case. This post summarizes these recent developments.
Miller: “Instinctive” actions by dogs aren’t searches. The first recent case is State v. Miller. It began when officers, together with a dog named Jack, responded to a burglar alarm. The house was locked but a window was smashed. The defendant’s mother arrived with a key and authorized the officers to search the house for intruders. They sent Jack in. Jack first alerted to drugs in a dresser, then alerted – using a different signal – to a human suspect in a closet. The officers opened the closet door. No one was there, but two large black trash bags were on the floor. Jack nuzzled one, partly opening the bag and enabling the officers to see marijuana inside.
The officers continued their protective sweep. They didn’t find an intruder, so they left the house. Then they obtained a search warrant based on the drugs they had seen, and eventually charged the defendant with drug offenses.
The defendant moved to suppress, arguing that Jack’s actions amounted to an unlawful warrantless search, and that the search warrant was the fruit of the poisonous tree. The issue reached the state supreme court, which ruled that “a police dog’s instinctive action, unguided and undirected by the police” is not a search for purposes of the Fourth Amendment. It remanded the case for further fact-finding about whether Jack’s actions were “instinctive,” but the opinion strongly suggests that they were.
Miller strikes me as an interesting case involving unusual facts that will not often be repeated.
Cottrell: Extending a traffic stop to bring a dog to the scene isn’t a de minimis delay. The second recent case is State v. Cottrell. I wrote about Cottrell in detail here, but in a nutshell, an officer stopped a driver for failing to have his headlights on at night. The officer developed a hunch that the driver was involved in drug activity, so at the conclusion of the stop, the officer asked the driver for consent to search his car. The driver initially said no, but agreed after the officer said that absent consent he would bring a drug dog to the scene.
The court of appeals ruled, in effect, that the officer’s threat to extend the stop to bring a drug dog to the scene unlawfully coerced the driver’s consent. The court rejected the State’s argument that a short delay could be justified under the de minimis analysis of State v. Brimmer, 187 N.C. App. 451 (2007) (“[I]f the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”). The Cottrell court opined that “the de minimis analysis applied in Brimmer . . . [should not] be extended to situations when, as here, a drug dog was not already on the scene.”
I predicted that the State would seek further review of Cottrell, but it didn’t. The decision significantly limits officers’ ability to deploy drug dogs at the conclusion of traffic stops.
Rodriguez: Supreme Court to take up the de minimis doctrine. Finally, the Supreme Court just granted certiorari in Rodriguez v. United States. The case arose out of a traffic stop in Nebraska. The stop concluded with the issuance of a warning ticket, but the officer had a hunch that the vehicle’s occupants were involved in drug activity. The officer had a drug dog in his car, but felt that he needed backup before he could safely deploy the dog. As a result, he detained the vehicle for six to seven minutes until another officer arrived. He then deployed the dog, and the dog found drugs.
The Question Presented is:
This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.
The legal issue is similar, but not identical, to the one considered in Cottrell. And, as the Question Presented implies, the Court’s ruling is likely to have implications for investigative techniques other than the use of drug dogs. That makes Rodriguez an important case. It is part of the Court’s current Term and so will be decided before the summer recess. For those interested in more detail on Rodriguez, the SCOTUSblog page on the case is here.
Conclusion: dogs’ moment in the sun? Drug dog litigation is booming. Especially combined with the Supreme Court’s recent decisions in Florida v. Jardines (discussed here, holding that bringing a drug dog to sniff the front door of a residence is a search), and Florida v. Harris, discussed here, holding that an alert by a trained or certified drug dog normally provides probable cause, even without evidence of a dog’s “field performance”), this seems to be a golden age of drug dog cases. The trend seems to be towards more restrictions on the use of drug dogs, and that trend could be dramatically accelerated – or entirely reversed – by Rodriguez.
If you have strong feelings about how dogs should be used or regulated, or if you have questions about the legality of specific practices involving drug dogs, please post a comment.