Police K-9 Search Ruled Unlawful Trespass by Idaho Supreme Court
R Tamara de Silva
Last week the Idaho Supreme Court reversed the denial of a criminal defendant’s motion to suppress, when it deemed that Nero, a police drug-sniffing dog, committed “trespass” by intermeddling with a defendant’s vehicle. This case (State v. Dorff) is significant because it sets a legal precedent for future cases involving law enforcement narcotics detection dogs in similar vehicle searches based upon a problematic standard. Some courts may now scrutinize the actions of police dogs and their handlers to determine if they constitute trespass and intermeddling. The ruling also promises to muddy the waters in an area that is heavily contested and whose rulings in court are already both fact intensive and fact specific.
The law of Drug Detection Dogs
Often the main point of contention and the first line of defense in drug cases (depending on your vantage point) centers on the legality of law enforcement’s search and seizure of illegal substances. When it comes to evidence obtained by the use of police K-9s, there are challenges for a criminal defense attorney, not the least being that it is impossible to cross-examine a police K-9.
There are also other issues related to the influence of the handler on the dog and how this affects the reliability of a police K-9 alert. For example, there can be questions about wether the dog is independently indicating the presence of a illegal substance or following the instructions of its handler, unduly influenced by the handler, or trying to please its handler, etc. Other lines of inquiry for a criminal defense attorney are to look at the dog’s certification history, its recertification status, and the training logs of its handler.
Federal law regarding the use of drug-sniffing dogs and search and seizure is primarily guided by the Fourth Amendment to the United States Constitution, which protects against unreasonable searches and seizures. Over the years, The United States. Supreme Court has issued several rulings related to the use of drug-sniffing dogs and the scope of the Fourth Amendment. Some of the key cases include:
United States v. Place (1983), The Supreme Court held that a sniff by a trained narcotics detection dog did not constitute a search under the Fourth Amendment. The Court reasoned that the dog sniff was non-intrusive, limited in scope, and specifically aimed at detecting contraband.
In Illinois v. Caballes (2005), The Court ruled that the use of a drug-sniffing dog during a lawful traffic stop does not violate the Fourth Amendment, as long as the stop is not unreasonably prolonged. In this case, the dog was used to sniff the exterior of the car while the driver was being issued a warning for speeding. The standard for what is considered unreasonably long can vary and is fact specific. Within 20-30 minutes has been held to not be unreasonably long.
In Florida v. Jardines (2013), The Supreme Court held that using a drug-sniffing dog on a homeowner’s front porch to investigate the contents of the home constituted a search under the Fourth Amendment. The Court reasoned that the officers trespassed on the property to gather information, which intruded on the homeowner’s reasonable expectation of privacy.
In Rodriguez v. United States (2015), The Court decided that extending the duration of a traffic stop to conduct a dog sniff without reasonable suspicion of criminal activity violates the Fourth Amendment. In this case, the officer delayed the completion of the traffic stop to wait for a drug-sniffing dog to arrive.
These cases demonstrate that federal law allows for the use of Police drug-sniffing dogs in certain circumstances, but there are limitations to ensure that individuals’ Fourth Amendment rights are protected.
Generally, using drug-sniffing dogs during a lawful traffic stop or in public spaces where individuals have no reasonable expectation of privacy is allowed. However, using drug-sniffing dogs to intrude on private property or extending the duration of a traffic stop without reasonable suspicion is considered a violation of the Fourth Amendment. The use of Police K-9s has also drawn scrutiny because of their role (through no fault of their own) in civil forfeitures-a topic I have covered here.
Nero’s Search
In the case at issue, State v. Dorff, law enforcement stopped defendant Kirby Dorff for making an illegal turn after crossing three lanes of traffic. It turned out he did not have a valid driver’s license and he was in possession of meth. The latter was the discovery of a police dog named Nero.
The K-9 officer walked Nero around Dorff’s vehicle twice. Nero never went inside the car but closely sniffed its seams, wheel wells, and undercarriage. On the second go round, body-camera footage from two police officers showed Nero making brief contact with the vehicle’s exterior surface twice—once on the rear passenger side and once on the front passenger side—as he jumped up. The third time, Nero placed his front paws on the front driver side door and window, standing up while sniffing the upper seams. The K-9 officer made upward gestures, encouraging Nero to sniff specific areas. The officer later testified that Nero alerted them to the presence of drugs during this third contact, when Nero had his paws on the driver side door and window. Based upon Nero’s behavior or “alert,” the police officers searched the interior of Dorff’s vehicle.
Motion to Suppress
In the first part of defendant Dorff’s motion to suppress the seized drugs, he argues that Nero never gave a reliable alert. In support of this assertion, the defendant called an expert witness, Andre Falco Jimenez. In all likelihood, the defense witness had not seen Nero’s prior history of alerting behaviors and made a determination of what constituted an alert for that dog based only on the bodycam footage of the search in question. The prosecution called Nero’s K-9 handler.
Some professional detection dogs are trained to give an unequivocal signal or behavior to indicate that they have found a target odor. One expert I spoke to, who trains professional law enforcement K-9 handlers suggested that a trained final response on the part of a detection dog, like a “sit,” can be useful and save a lot of time in court that is spent arguing about the ambiguity of what behavior on the part of the professional detection dog, indicates that it has found its target odor. This is an entire topic outside the scope of this writing.
Upon the search and indication of the police detection dog, Nero, a search of the vehicle revealed the presence of drug paraphernalia with white residue and methamphetamine. They also found a motel room key, a search of which was executed incident to a search warrant, and revealed more drug paraphernalia and 19 grams of methamphetamine. So Nero was right…until the Supreme Court of Idaho decided otherwise.
Idaho Supreme Court Ruling
In the State v. Dorff case decided on March 20, the Idaho Supreme Court ruled that evidence obtained in a police search of a car was inadmissible because Nero trespassed on the defendant’s vehicle by placing his paws on it. This action constituted “intermeddling,” which is when someone intentionally interferes with another’s property without permission. The court determined that a search took place when Nero jumped onto the driver’s side door and window, sniffed the car’s upper seams, and maintained contact with the vehicle for a few seconds.
The majority opinion begins with a drawn out and exhausting discussion of England’s common law in 1791 coincident with the adoption of the Fourth Amendment It points out that Idaho did not exist in 1791. It then discusses William Blackstone for some time, moving onto personal property, then the concept of trespass, and finally intermeddling-, only getting to Nero in the last paragraphs.
Here is the Cliff Notes version- in the common law, trespass to chattel happens when someone violates another person’s rights in their personal property, often referred to as “the dignitary interest in the inviolability of chattels.” This means that the rights associated with personal property ownership, such as the right to use, possess, and exclude others from it, are protected. Trespass to chattel occurs when someone intentionally uses or interferes with another person’s property without permission or continues to do so even after their permission has been revoked.
For trespass to occur, the interference or contact with the personal property must be considered “intermeddling.” While everyday, minor contact with another person’s property may not be sufficient to constitute trespass, more significant interference that intrudes on the owner’s rights is considered intermeddling. There is no exception for minor interferences or de minimis contact; any unauthorized intrusion is considered trespass.
The Idaho court described intermeddling as the difference between a dog’s tail accidentally brushing against your vehicle’s bumper as it walks by and a dog intentionally jumping on your car’s roof, sitting on the hood, or standing on the window or door without permission or consent. The latter action supposedly demonstrates a more significant intrusion on the owner’s rights and are considered intermeddling, thus constituting trespass to chattel.
Problems with the Idaho Court’s Ruling
In the majority opinion, Justice Robyn Brody, along with Justices John Stegner and Justice Colleen Zahn, conclude that the exterior of a vehicle is also protected by the Fourth Amendment.
The Justices found that the drug-sniffing dog “intermeddled” with Dorff’s personal property by jumping up on the car. Keep in mind it jumped on the car for a couple of seconds. Justice Brody used an analogy to illustrate the concept of intermeddling, likening it to the difference between someone who accidentally brushes up against your purse while passing by and someone who, without permission or consent, deliberately places their hand on your purse or inserts their fingers into it, whether in your presence or behind your back.
This is nonsensical because it equates and equalizes the behavior of a human to a dog. For Nero to raise his paws on the vehicle and sniff the upper seams would not have been with the intention to intrude on the inhabitants of the car, but to get closer to the source of the target odor. Dogs lean on objects when standing or straining to reach an elevated odor because they have four legs and not two like we do. It is an alarming anthropomorphism to effectively impute and equate the intentions of a person who would stick their hand in your purse to a dog who is trying to get closer to the source of a target odor they have picked up on.
It is also unfortunate in that the justices probably not once, at least nowhere in their opinion, tried to consider how dogs locate and source an odor, much less consult an expert on olfaction…or even a professional law enforcement K-9 trainer.
The justices asserted that the fact that the unlawful search involved the exterior of Dorff’s property or was carried out by a drug-sniffing dog does not exempt it from the protections of the Fourth Amendment. And what is reasoning? Apparently just equivalency for its own sake. Justice Brody wrote, “There is no asterisk to the Fourth Amendment excusing the unconstitutional acts of law enforcement when they are accomplished by means of a trained dog.” This sentence only makes sense if dogs were also humans and capable of making determinations of what is constitutional or not, and not just performing the task that they are trained to do. This is not reasoning, but it is arbitrary. This is also where it bears remembering that courts of last impression are not last because they are right, they are right because they are last.
What the ruling does is impose an arbitrary and nonsensical standard to police dog vehicle searches which prohibit a police K-9 from touching a vehicle even for a second or two…or three. Who knows that the contours of the test for intermeddling are as this decision provides no guidance or thoughtfulness there either. Will the newly invented standard for K-9 vehicle searches now proscribe a dog’s tail from brushing against a car’s tires more than once .…is the dog to be held away from the vehicle by several feet to ensure no contact whatsoever?
What the Supreme Court of Idaho invented as a standard for police K-9 vehicle searches, will unequivocally do is make the already difficult job of law enforcement and police K-9 teams in Idaho much more difficult.
R Tamara de Silva. Esq