Drug Dogs

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The court of appeals issued a batch of opinions yesterday. Among them is State v. Washburn, a drug dog case. An extremely compressed summary of Washburn is that an informant told the police that the defendant was a drug dealer and kept drugs at his house and at a storage unit. Based on the tip, the police took a drug dog to the storage facility, which was a climate-controlled building with storage units opening off an indoor hallway, and got the consent of the facility’s owner to walk the dog through the hallway. The dog alterted at the defendant’s unit, which led the police to get a search warrant for it, and things went downhill for the defendant pretty quickly after that.

The defendant first argued that “the dog sniff of the hallway outside of his locked storage unit constitute[d] an illegal warrantless search because he had a reasonable expectation of privacy in the storage facility, including the hallway area.” In other words, he argued that the police couldn’t come into the hallway at all. The court rejected that argument, noting that (1) the hallway wasn’t very private, since all the facility’s tenants had access to it, and (2) in any event, the facility’s owner consented.

The defendant’s second argument was that even if the police were lawfully in the hallway, the dog sniff itself was a search, supported neither by a search warrant nor an exception to the warrant requirement. The opinion says that the defendant cited United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985) (holding that use of a dog to sniff outside a suspect’s apartment was a Fourth Amendment search), as support for his contention. Of course, the United States Supreme Court has told us that using a drug dog to sniff luggage at an airport isn’t a search, United States v. Place, 462 U.S. 696 (1983), and that using a drug dog to sniff a vehicle during a traffic stop isn’t a search, Illinois v. Caballes, 543 U.S. 405 (2005). The rationale of those cases is that drug dogs detect only contraband, which cannot lawfully be possessed, and therefore invade no reasonable, i.e., legitimate, privacy interest. Following those cases, the court of appeals rejected the defendant’s argument and declined to distinguish storage unit sniffs from vehicle sniffs. (Some of this is reading between the lines, since the court’s treatment of this issue is rather brief.) The fact that Thomas predates Caballes probably didn’t help the defendant, though a leading commentator has argued that even after Caballes, sniffs of private premises, possibly including storage units, should count as searches. 1 Wayne R. LaFave, Search and Seizure § 2.2 (4th ed. 2004 & pocket part) (arguing the point and collecting a few cases, including State v. Davis, 732 N.W.2d 173 (Minn. 2007), adopting his view on state constitutional grounds); see also State v. Guillen, 213 P.3d 230 (Ariz. Ct. App. 2009) (similar, also on state constitutional grounds).

It appears that Washburn closes the door on the argument that dog sniffs of private premises are searches. Perhaps one could try to distinguish a sniff of a residence from a sniff of a storage unit, but nothing in the Washburn opinion suggests that the court would view the two situations as different for Fourth Amendment purposes. So is there any circumstance under which a drug dog sniff is a search? The most likely scenario is using a drug dog to sniff a person, which may be so physically intrusive that it is a search. There is pre-Caballes authority on point, such as United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), and Caballes is not necessarily to the contrary, as the driver in that case was no longer in his car at the time of the sniff. It seems to me that the defendant’s argument in such a case is much stronger than Washburn’s, but as always, I’d welcome others’ thoughts.

4 comments on “Drug Dogs

  1. yep, they can pull you over for speeding a mile over the limit and while the officer is giving you a ticket the other can have a drug dog go around your car and if the k9 alerts to drugs in the car thats pc to search all containers in the car, the trunk, the person, and any where els the drugs could be.

  2. I was wondering why there was only one comment on such a sensitive issue concerning our constitutional rights that are obviously being swept aside for one reason or another, for interference in criminal investigations. Everyone knows that the police departments across the country continuously practice violating constitutional rights in order to secure a conviction. It seems it is up to the accused to prove their rights had been violated. If the accused can not afford the proper legal council, he is doomed from the beginning because only a paid attorney is going to challenge the police department or the courts. What is sad is that the judges are in no way upholding constitutional law unless the proper procedures are met addressing those issues. Dog sniffing is legal, however it should be limited to conventional warrants or probable cause due to the abuse by the police department’s K-9 units using those animals as a weapon against privacy in order to get around constitutional rights to get convictions. In a free America it is hard to prove someone guilty of certain crimes without violating constitutional rights, and that is the point.

  3. This is a way that corruptness can thrive on in this nation. The fact of using a dog to sniff a vehicle without PC or consent of the owner or operator, is a direct violation to our rights. The dog has been trained to search for smells, that is its job. With that said then we can assume that that constitutes a search. Where does the madness stop since they argue that a car is on public property so then the car is no longer private property. That is asinine to even argue, because where do we stop the intrusion of the human rights when we could also argue the fact that a house is sitting in public air which constitutes no longer being private, or that you are on your property and you are at the edge of your property and they bring a dog to sniff “FREE AIR” and find something on you that is deemed illegal?

    We then could be childish and argue that since you pay taxes to the government for your property, then that deems it a government owned home, vehicle and so on, so then they could just come in without PC and ransack your house, car, or you to see if you are doing or could do anything illegal. Which would be against our God given rights as human beings that is protected in the constitution.

    This country was made to protect us from laws that are made for just money revenue. Our rights are to do anything we deem doable unless it harms someone else or someone’s property. So is drugs used by a person really a crime just because someone said it is? I am saying this, because I was on a Grand Jury and was confronted with a case of someone having a tag light out, and since the driver acted nervous they brought the K9 to do a walk around. I asked what the PC was and they said we didn’t need that since the dog was not actually searching. I said excuse me? What if the person was having a diabetic issue and was jittery and could have slipped into a medical emergency waiting for that dog? Yes they found crystal meth on the person, but the search shouldn’t be legal to find that he uses drugs and is tying up taxes and resources to bother with a person that uses drugs and not harming another person at that moment.

  4. I was wondering what happens if the dog jumps into the vehicle instead of just walking around the car? Would the search still be legal?

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