Another Court Says A Drug Dog Sniff Is A Search, Requires Probable Cause To Justify It

They’re going to have to change the nickname. For years, cops have referred to drug dogs as “probable cause on four legs.” But over the last half-decade or so, jurisprudence has been leaning the other way.

One of the first rulings to knock this assumption back a bit was the Supreme Court’s ruling in Rodriguez, a ruling that said cops couldn’t artificially prolong traffic stops. The main reason for prolonging stops was to bring a drug dog to the scene to perform a trick (an “alert” in the official parlance) that give cops “permission” to perform a warrantless search of the stopped vehicle.

The next set of obstacles came courtesy of marijuana legalization — something that was happening pretty much everywhere all the time in the United States. If a drug dog “alerts” on a now-legal substance, it’s really not probable cause, is it?

In more recent years, a few cases have resulted in decisions that declare a drug dog’s sniff to be a “search” under the Fourth Amendment, something that must be supported by probable cause before it occurs, rather than considered to be probable cause in and of itself.

Here’s the latest ruling that changes the probable cause calculus, via FourthAmendment.com. A Minnesota appeals court has come down on the side of the Fourth Amendment, ruling that a drug dog sniff is governed by the Fourth Amendment, rather than just another trick cop dogs can perform to generate alleged probable cause.

After tracking a suspect with a pen register order that somehow allowed investigators to receive “pings” from the targeted device in near real-time (pen register orders generally aren’t used for real-time tracking because they’re used to collect phone records after the fact, not while facts are still in progress — something that suggests this was cover for a Stingray device, rather than ping info delivered to investigators by the service provider), cops applied for an arrest warrant for Glenn Johnson. To effect this arrest, they received permission to stop Johnson’s car if they came across it while patrolling.

Johnson was pulled over for driving 42 mph in a 40 mph zone — an obviously pretextual stop. The officer performing the stop spotted a butane lighter (referred to as a “torch” in the official paperwork), which the officer claimed was generally used only to “smoke methamphetamine.” Since it was a cold day, the officers decided to tow Johnson’s car following the stop (and his arrest on a felony warrant), rather than search it where they found it.

Once the vehicle was impounded, a deputy ran his drug dog around the car. Then he placed the dog inside the vehicle, despite testifying otherwise during the criminal case. From the ruling [PDF]:

Once the vehicle was impounded, Deputy R.M. ran his K-9 partner “around the vehicle.” Because Johnson argues that the district court clearly erred in this finding—that the sniff by the narcotics-detection dog occurred outside the vehicle—we note the following countervailing evidence that was adduced at the contested omnibus hearing.

Deputy R.M. testified that his K-9 partner signaled the presence of narcotics in Johnson’s vehicle, which the dog does by changing his breathing pattern and ultimately sitting in the area from which the dog believes the odor is emanating. Specifically, the dog sat “on the dog box, center console” area inside the vehicle. The dog box is a “panel that covers the engine and transmission, [be]cause [the] engine and transmission in [a] van sit back further than they do in a regular vehicle.” When the dog “came to the sitting position,” Deputy R.M. concluded that the dog “had found the odor of narcotics inside the vehicle.” Deputy R.M. then “remove[d] [the dog] from the vehicle.” After the dog “was removed from the vehicle,” Deputy R.M. helped other deputies search the vehicle.

Deputy R.M. found an orange glove “hidden behind the overhead console area, which contained several baggies with a crystal-like substance that later field-tested positive for methamphetamine.” During their testimony at the contested omnibus hearing, the deputies admitted that this was not an inventory search, and the state later conceded that law enforcement had not conducted an inventory search.

First, the deputy tried to pretend the sniff was performed outside of the vehicle. Second, there’s the “field-test” — which is pretty much meaningless since field drug tests are extremely prone to false positives. Then there’s the final part of the government’s rueful concessions: This was not an inventory search of an impounded vehicle — something that would have allowed the “inevitable discovery” exception to the Fourth Amendment to salvage the search. Instead, it was forced to admit this search was performed for the sole purpose of locating any contraband contained in the van.

The state appeals court doesn’t cite Rodriguez (since the traffic stop wasn’t unconstitutionally extended), but it does cite two other US Supreme Court cases. The most relevant is Jones, which (sort of) created a warrant requirement for placing GPS tracking devices on parked cars, reasoning that the government “physically occupied” a car (however briefly) for the sole purpose of “obtaining information.” The same rationale applies here, even if the government was (mostly) represented by a dog. (The nod to Jardines suggests even cars towed by cops have some sort of “curtilage” that can’t be intruded upon without probable cause to do so.)

Although neither the United States Supreme Court nor the Minnesota Supreme Court has addressed whether a sniff by a narcotics-detection dog inside a vehicle constitutes a search, the principles established in Jones and Jardines compel us to conclude that the use of a narcotics-detection dog to physically occupy or intrude on any private property constitutes a search. We therefore hold that, under the Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution, a nonconsensual warrantless sniff inside a vehicle by a narcotics-detection dog is a search for which law enforcement must have probable cause to believe will result in a discovery of evidence or contraband.

But this conclusion doesn’t help the defendant. The court says there was probable cause to search the vehicle, even independent of the dog’s alleged “alert” while sitting on the van’s console. While it won’t help Johnson, it will help prevent further constitutional violations moving forward. Rodriguez says probable cause is needed to extend stops for the sole purpose of bringing a K-9 unit in. This ruling says probable cause is needed to allow a drug dog to sniff a vehicle and, especially, to be given access to its interior. That means drug dogs can no longer be the probable cause for a warrantless search. Instead, they’re only allowed to perform tricks for their handlers when officers already have all the probable cause they need to engage in a warrantless search.

More specifically, this also means cops can’t tow cars for the sole purpose of searching them later. No matter how cold it is outside, officers need to perform the search while the car is still on a public road, rather than perform a search at their leisure at a slightly warmer location.

Expect to see more rulings along these lines in the future. The accuracy of drug dogs has long been disputed and law enforcement’s refusal to subject drug dogs to actual scientific testing (something that would show they’re more interested in pleasing their handlers than accurately locating contraband) is finally starting to work against them. Add to that the ongoing legalization of all kinds of previously illegal substances across the nation and it seems inevitable that drug dogs will join things like bite mark analysis and hair follicle examination in the graveyard of questionable cop science.