Lower courts are divided on the Fourth Amendment implications of a drug-detecting dog that jumps into a car on its own and then alerts about illegal drugs. I thought I’d offer some thoughts on the problem. In my opinion, a spontaneous seizure should be considered a Fourth Amendment search. This article explains why.
First, some context. It is well established that using a drug sniffing dog to sniff outside a car does not constitute a search. See Illinois v. Caballes, 543 U.S. 405 (2005). It is also clear that a search of a car occurs if the officer orders a drug detection dog to physically enter the car, the dog enters, and then the dog alerts. What the courts struggle with is how to deal with the dog that jumps into the car uninvited. If the officer wants the dog to stay out of the car and it is the dog’s idea to enter the car, are you saying that the dog’s entry is a Fourth Amendment search on the part of the government? Or is the dog somehow an independent actor whose instinctive behavior is not attributable to the government and, therefore, its subsequent alert is not a search? See, for example, United States v. Sharp689 F.3d 616 (6th Cir. 2012) (holding the latter).
It seems to me that this is a question that should have a simple answer: a spontaneous and instinctive entry of the dog, followed by an alert, is a government search. The drug detection dog is a technological tool that the government trains and brings to scene to detect narcotics. Like most tools, it is imperfect. Funds do not always go where the government wants them to. But it makes no sense to say that the dog loses its governmental character or that it does not participate in one way or another in governmental action when, being driven around a car, it jumps into it. If the dog enters uninvited and alerts inside the car, the government certainly uses that alert for investigative purposes, just as it would if the officer had ordered the dog to enter the car. Whether the officer enticed the dog to enter should not matter.
The key precedent that comes to mind is United States v. Karo468 U.S. 705 (1984). In KaroThe government secretly placed a radio beeper in a can of chemicals sold to a drug ring, and they tracked down where the bad guys committed their crime by watching where the can went using the beeper. As long as the can remained on the public road, there was no search in a previous case, United States v. Knotts, 460 US 276 (1983). But what made Karo What’s different is that someone – probably one of the bad guys – snuck the can into a house. The sound signal thus recorded its position from inside the house rather than on a public road. Karo considered this alert from inside the house to be a search for the simple reason that the sound signal was transmitting information from inside the house.
But wait, the government protested Karo: They didn’t control where the pager went. It was the bad guys who brought the beep into the house, not the government, so the government could not predict when a search would take place and a warrant would be needed; “They have no way of knowing in advance,” the government stressed, “whether the sound signal will transmit its signals from inside private premises.” The Supreme Court was unmoved by this argument, essentially telling the government that the unpredictability of the pager’s location was its own problem to solve: “The argument that requiring a warrant would force the government to obtain warrants in a large number of cases is hardly a compelling argument against this requirement.” »
It seems to me that the drug sniffing dogs in these cases of “instinctive acts” are a lot like the radio beeping in Karo. In both situations, the government introduced surveillance tools to obtain otherwise unknown information using normal human senses. As long as the surveillance tools remain outside the protected area, their use does not constitute a search under Caballés And Knots. In both situations, this Fourth Amendment rule gives officers a reason to want the tools to approach the scene but not enter it. But in both situations, the agents do not have perfect control and run the risk of the devices entering the protected areas of houses (in Karo) or cars (in the case of dogs).
Below Karoif a suspect brings the pager into a home, the Fourth Amendment protection changes. The sound signal is now present in the house, a search is carried out. I don’t know why there would be a different outcome using the technological tool of a dog versus the technological tool of a beep, especially since the government has much more control over where the dog goes than where the beep went in. Karo.
