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. Continue reading
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Today, most Supreme Court watchers are focused on the oral argument in the same-sex marriage cases. But the Court also released an important opinion in Florida v. Jardines, ruling that an officer conducts a Fourth Amendment search when he brings a drug dog onto the porch of a house to sniff the front door. Jardines is the second drug dog case of the Term, following Florida v. Harris, which I discussed here.
Facts. A Miami officer received a tip that marijuana was being grown in a specific residence. A “surveillance team” subsequently went to the residence. The officers saw no activity, so two, plus a drug dog named Franky, approached the house using the driveway and a paved path. As the dog neared the front porch, he began to “track” back and forth, apparently detecting the smell of drugs. He ultimately alerted at the base of the front door.
After a minute or so, the officers left, then obtained a search warrant based on the alert. During the ensuing search, they found marijuana plants. The defendant was present at the scene, and he was arrested and charged with drug trafficking.
The defendant moved to suppress, arguing “that the canine investigation was an unreasonable search.” The trial court agreed, the Florida appeallate courts split, and the case made its way to the Supreme Court.
Majority opinion. The Court divided 5-4, with Justice Scalia writing the majority opinion and ruling for the defendant. Justice Scalia based his reasoning on the “physical intrusion” theory of the Fourth Amendment that he advanced in United States v. Jones, 565 U.S. __ (2012), the GPS tracking case. He viewed the case as “straightforward,” because the officers entered the curtilage of the defendant’s home seeking to gain information. (I blogged about Jones here.)
Justice Scalia rejected the argument that there was an “implicit license” for the officers to approach the home with Franky. He stated that custom “typically permits [a] visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” but does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around. In other words, the scope of the implicit invitation that allows visitors to come to the front door of a home “is limited not only to a particular area but also to a specific purpose.”
Finally, Justice Scalia distinguished Illinois v. Caballes, 543 U.S. 405 (2005) (holding that the use of a drug dog during a traffic stop does not violate the motorist’s reasonable expectation of privacy because the dog can only detect contraband). He emphasized that the Jones physical intrusion test is a separate analysis from the reasonable expectation of privacy test. Therefore, even if the use of a drug dog cannot impinge on a reasonable expectation of privacy, it can – and in this case, did – constitute a physical intrusion.
Concurrence. Justice Kagan wrote a concurrence arguing that the case could also be decided for the defendant under the reasonable expectation of privacy test, comparing the use of a drug dog to a situation in which “[a] stranger comes to the front door of your home carrying super-high-powered binoculars” and uses them to peer into the recesses of your dwelling, thereby exposing what you reasonably believed was private.
Dissent. Justice Alito wrote the dissent. He reasoned that visitors, welcome or not, friends or peddlers, have an implied “license to use a walkway to approach the front door of a house and to remain there for a brief time,” regardless of their purpose. And he found this case indistinguishable from a “knock and talk,” which both sides agreed are permitted and which also involve an officer approaching the front door of a residence with the intent to gather evidence. He also rejected Justice Kagan’s expectation of privacy theory.
Comments. A few brief thoughts about the significance of the ruling:
- Lineup. The lineup of Justices was interesting, with Justices Thomas, Ginsburg, Sotomayor, and Kagan joining Justice Scalia, and the Chief Justice and Justices Kennedy and Breyer joining the dissent. The case once again illustrates the fact that Fourth Amendment cases make strange bedfellows.
- Apartments. The Court didn’t ponder how its ruling would apply to apartments, townhouses, and other kinds of dwellings. Since some residences have no curtilage at all, it may be that a drug dog can be deployed at their front doors, while the same conduct is prohibited at a detached home.
- Backyards. Both the majority and the dissent noted that visitors’ implied license to approach a home extends only to the front entrance. As Justice Alito put it, “[a] visitor must stick to the path that is typically used to approach a front door,” and may not “meander into the backyard.” That may call into question some officers’ practice of going to the back door if no one answers the front door. (I addressed this issue here.)
- New theory. If there were any doubt after Jones about the importance or durability of the physical intrusion theory, this case settles it. It’s a major development in Fourth Amendment doctrine.
Last week, I wrote about the North Carolina Court of Appeals’ holding in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120 (2012), that a drug dog’s positive alert to a motor vehicle in which no drugs were found did not, by itself, provide probable cause to search the person of a recent passenger in the vehicle. A couple of folks have inquired post-Smith about whether the police can search an individual if a dog alerts to the person as opposed to a car in which the individual recently has been traveling. Smith does not address this issue, but other courts have and I thought it was sufficiently interesting to warrant a follow-up post.
First, a brief re-cap of the status of dog sniffs under the Fourth Amendment: The United States Supreme Court held in Illinois v. Caballes, 543 U.S. 405 (2005), that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment. Caballes relied in part on the high court’s determination in United States v. Place, 462 U.S. 696 (1983), that a canine sniff of luggage in an airport by a well-trained dog was not a search within the meaning of the Fourth Amendment and its application in City of Indianapolis v. Edmond, 531 U.S. 32 (2000) of that principle from Place to exterior sniffs of cars by drug dogs. The Caballes Court, like the Court in Place and Edmond, reasoned that properly conducted drug dog sniffs are designed to reveal only the presence of contraband. Given that a person has no legitimate interest in possessing contraband, neither the dog’s sniffing of the car nor its subsequent alert compromises a constitutionally protected privacy interest. Thus, police may conduct such searches without the requirement of individualized suspicion.
To anyone who shares my healthy respect (read: fear) of the types of dogs employed by police to detect narcotics, it probably seems a forgone conclusion that a different analysis applies to a dog’s search of a person, which is far more intrusive (read: frightening) than a dog’s sniffing of an object. In the words of one of my former law professors, Arnold Loewy, “the very act of being subjected to a body sniff by a German Shepherd may be offensive at best or harrowing at worst to the innocent sniffee.” Arnold H. Loewy, The Fourth Amendment As A Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1246-47 (1983). Indeed, in certain circumstances, courts have considered such person-sniffs to be Fourth Amendment searches. In United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), for example, the Fifth Circuit held that the canine sniff of the defendant, which included the dog touching the defendant’s groin area, on the pedestrian walkway of the bridge connecting Laredo, Texas to Nuevo Laredo, Mexico, was a search under the Fourth Amendment. Because, however, the canine sniff amounted to a routine border search that did not “‘seriously invade the traveler’s privacy,’” the court determined that no individualized suspicion was required before the dog lawfully could sniff a person crossing the bridge. The Fifth Circuit likewise concluded in Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 476 (5th Cir. 1982), that drug dogs’ sniffing of children in a school, as part of an effort to prevent the abuse of drugs and alcohol, was a Fourth Amendment search that required individualized reasonable suspicion. The dogs in Horton—Doberman Pinschers and German Shepherds—walked down the aisles of classrooms and sniffed students, putting their noses against the people they were investigating.
In contrast, the Fifth Circuit determined in United States v. Reyes, 349 F.3d 219 (2003), that an unintentional non-contact sniff by a dog that was four feet away from the person when he alerted was not a search within the meaning of the Fourth Amendment. The dog in Reyes alerted as the defendant departed a bus that the officer intended to search once the passengers were off. The court reasoned that because the dog was not in close proximity to the defendant when he alerted, the sniff was minimally intrusive and thus not constitutionally cognizable.
Dog sniffs of people that amount to Fourth Amendment searches and are supported by individualized suspicion or otherwise qualify under an exception for warrantless searches not supported by particularized suspicion still must be carried out in a reasonable manner. See, e.g., Schmerber v. California, 384 U.S. 757, 771 (1966) (evaluating whether blood test permitted under exception to warrant requirement was performed in a reasonable manner); see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard). The manner in which the dog alerts unquestionably plays a role in the reasonableness analysis. The search by the dog in Kelly, which the Fifth Circuit deemed a routine border search, was performed by a “‘passive alert’” dog that was trained to sit down or exhibit some other change in behavior when alerting as opposed to scratching or biting at the area of the contraband. The dog sniff in Reyes, which the Fourth Circuit did not consider a Fourth Amendment search, was followed by a more aggressive alert, in which the dog pulled on his leash so as to follow the defendant while barking at him. I am doubtful that a dog alert that involved scratching or biting a suspect would be deemed reasonable under the Fourth Amendment.
North Carolina dog-handlers and criminal law aficionados, write in and let us know whether dogs in this state are trained and employed to sniff people, how they alert, what policies govern this practice, and how our trial courts have analyzed such searches. Dog lovers, before you send in your comments defending the breeds mentioned in this post, I’ll note that after reading Susan Orlean’s recent book, Rin Tin Tin: The Life and the Legend, German Shepherds are slightly less scary to me (at least on paper).
This recent post by Professor Orin Kerr reports on an emerging split of authority on what the state needs to show about the training and experience of a drug-sniffing dog before a dog’s alert will provide probable cause – to search a car, for example, or to support the issuance of a search warrant for a briefcase. Professor Kerr first cites United States v. Ludwig, __ F.3d __, 2011 WL 1533520 (10th Cir. Apr. 22, 2011), which says that it is not necessary to “mount a full-scale statistical inquisition into each dog’s history.” Rather “courts typically rely on the dog’s certification as proof of its reliability,” at least as long as the certifying authority is not a sham. He then cites Harris v. State, __ So. 3d __, 2011 WL 1496470 (Fla. Apr. 21, 2011), which holds that “evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.” Therefore, according to the Harris court, the state must present “the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability.”
Although not discussed by Professor Kerr, the Oregon Supreme Court recently weighed in on this issue as well. In the companion cases of State v. Foster, __ P.3d __, 2011 WL 1312159 (Or. Apr. 7, 2011), and State v. Helzer, __ P.3d __, 2011 WL 1312105 (Or. Apr. 7, 2011), the court held that
an alert by a properly trained drug-detection dog can provide probable cause to search. Whether such an alert does so in a particular case will depend on an individualized assessment of the totality of the circumstances known to police that bear on the dog’s reliability in detecting drugs. Those circumstances usually will include, but are not limited to, the dog’s and its handler’s training, certification, and performance in the field. The state has the burden, upon a proper challenge by the defendant, to demonstrate that the dog’s alert was sufficiently reliable to provide probable cause to search.
Helzer at *1. The announced standard appears to be a fairly high hurdle. For example, in Helzer, the court found inadequate proof of reliability where the record showed (1) that the dog was initially trained by a private organization called Code Three Canine, (2) that the officer completed 114 hours of training offered by Code Three Canine regarding how to work with the dog, (3) that the officer then trained with the dog individually for an additional 300 hours, (4) that the officer and the dog completed a 32-hour certification course “with the Oregon Police Canine Association (OPCA), which is a private organization,” and (5) that the officer provided “documentation of alerts in the field over a several-month period . . . [though he] kept no records . . . of deployments in which [the dog] did not alert.”
Those interested in additional reading about the reliability of drug-sniffing dogs might check out this article, published by the National Association of Criminal Defense Lawyers, this CBS News piece, or Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L. J. 405 (1996-97). If you’re aware of other relevant studies, please post a comment.
Where does North Carolina stand on this issue? As far as I can tell, the leading – and perhaps the only meaningful – case is State v. McDaniels, 103 N.C. App. 175 (1991). McDaniels is a drug trafficking case in which a dog alerted on a briefcase associated with the defendant. Law enforcement obtained a search warrant for the briefcase based in part on the alert, and the defendant contended that the warrant wasn’t supported by probable cause. The court of appeals disagreed, stating that probable cause is to be determined under the totality of the circumstances and that “[t]here is no . . . independent requirement that an informant – here, defendant argues, the dog – be proven reliable.” Nonetheless, the dog, which was “certified by US Customs,” was characterized by the court as “well trained and exceptionally skilled,” apparently based on the officer’s testimony “about his experience with [the] dog, the only one used by the SBI at that time, [and] the dog’s qualifications and excellent track record.”
I don’t find McDaniels to be very illuminating, partly because it was decided before there was a significant body of law on this issue, and partly because there were enough other circumstances supporting probable cause in that case to make the reliability of the dog’s alert less than critical. Furthermore, there may be some tension between the relatively deferential approach to drug-sniffing dogs in McDaniel and the seemingly more demanding body of law about the use of scent-tracking dogs. See, e.g., State v. Irick, 291 N.C. 480 (1977) (establishing several threshold requirements for the introduction of bloodhound evidence, including that “they are of pure blood, and of a stock characterized by acuteness of scent,” that they “have been accustomed and trained to pursue the human track” and that “they have been found by experience reliable in such pursuit”); State v. Walston, 193 N.C. App. 134 (2008).
Still, McDaniel appears to be closer to the Ludwig side of the ledger than to the Harris, Foster, and Helzer side. It’s also worth noting that the Fourth Circuit has taken more-or-less the Ludwig view in an unpublished opinion. United States v. Wu, 2007 WL 412169 (4th Cir. Feb 2, 2007) (holding that “evidence of [a drug-sniffing dog’s] training and certification was enough by itself to establish [the dog’s] reliability”). Interestingly, in Wu, the several alerts that were used to establish probable cause all turned out to be false – the packages in question contained no drugs, but contained electronics that turned out to have been fraudulently acquired. It’s surprising that Wu wasn’t published given its significance on a disputed Fourth Amendment issue.
The bottom line is that this is a disputed and rapidly-evolving area of law. In North Carolina, McDaniel probably gives the state the upper hand for now, but it certainly isn’t an unassailable stronghold. This issue might be one that would pique the interest of our state supreme court, given its demonstrated concern about the reliability of techniques used to detect and identify controlled substances.
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.