of K-9s-are-tire-chalk department
To what extent must a violation take place before it becomes a constitutional violation? This is a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least recoverable by a number of Fourth Amendment exceptions.
But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting. This is how we come to this decision [PDF], issued by the Idaho Supreme Court, which not only calls on cops to better manage their drug dog, but also takes the hat off to recent rulings on parking control measures. (via FourthAmendment.com)
Here are the facts of the case:
In March 2019, officers arrested Howard for a traffic violation and took him into custody after discovering an outstanding arrest warrant. Officers then called in a drug sniffer dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger were the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.
After prosecutors charged Howard with drug trafficking offenses related to heroin and methamphetamine, Howard decided to delete all evidence resulting from the car search. During the hearing on the motion, Howard argued that Pico momentarily poked his nose out of the open car window before giving his final and practiced response to indicate the presence of illegal drugs, and that he acted as an intrusion constituting an illegal search in violation of its Fourth Amendment rights under United States v. Jones, 565 US 400 (2012). The only witness who testified at the hearing was Constable Amy Knisley, the manager of Pico. Part of Knisley’s body camera footage showing the sniffing dog was also admitted into evidence.
The district court accepted Pico’s momentary intrusion and dismissed the removal motion. He said that because the sniffing was on the dog’s own will, it could not be a violation of rights.
The district court dismissed Howard’s removal motion because it found that the Court of Appeal’s opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015) was instrumental. In Naranjo, the Court of Appeals ruled that the sniffing of a drugged dog through an open window of a vehicle had been “instinctive” – ââas opposed to facilitated or encouraged by the police – and therefore was not a ” search âfor the purposes of the Fourth Amendment.
The challenge to the search highlighted the Supreme Court’s decision in Jones, which concluded that intrusions – however small – into private property were unconstitutional without warrant or warrant exception. In this case, officers placed a tracking device on a parked car. This minimal intrusion (in the service of a larger and more extensive intrusion) was unacceptable.
The Idaho Supreme Court agrees with the defendant. Jones check here. The intrusion may have been minimal, but it was still an intrusion.
We agree with Howard that Naranjo is incompatible with Jones and that Pico’s entry was a search. Jones is clear that for the purposes of the Fourth Amendment, a search takes place when the government enters in order to obtain information.
Then it refers to a more recent decision of the Court of Appeal which dealt with another form of minimal intrusion.
While not entirely relevant and certainly not binding on this Court, we find that the decision of the Sixth Circuit Court of Appeal in Taylor v. City of Saginaw is instructive. In Taylor, the city has imposed time limits on parking by chalking the tires, that is, placing chalk marks on the tread of car tires – marks that fade as soon as possible. that the cars are moved – to determine if the cars have been in place longer than expected. The complainant, apparently a frequent recipient of parking tickets, alleged the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not Fourth Amendment research. The Sixth Circuit disagreed. She ruled that the chalking, although a slight interference with private property, was nonetheless interference with the aim of obtaining information and therefore a “search” under Jones.
It was the same conclusion that a California federal court reached last spring. A tire brand is a search. And, if that is upheld on appeal, there will be an Idaho screening precedent (the Ninth Circuit, which also covers California) that matches the findings here.
And this conclusion is that it is not the means or the methods or the duration / depth of the intrusion. It’s the intrusion that counts.
Like chalk marking on the tread of a car tire, a dog’s nose going through an open window is minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in Jones’ test for a de minimis exception.
This is the baseline. And the court said the government couldn’t save its research by claiming the drug dog was alerting before the vehicle was intruded. The officer’s testimony stated that the dog did not show a “final” alert before sticking its nose out the window. It was only after that that the dog sat down, which the officer said was an “alert”.
When Constable Kinsley’s statements of belief are excluded from our review of his testimony, the facts remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs ; (2) Pico did not sit or lie down before getting into the car; (3) at least sometimes Pico “freezes” or tries to “trick the system” by looking at the agent for his reward before indicating what he was trained for; (4) Pico froze and looked at the agent before getting into the car. From these facts, we cannot know whether Pico’s freezing and rolling back was a reliable indication of the presence of narcotics, and we cannot determine whether Constable Kinsley’s subjective belief was objectively reasonable. For example, how often does Pico freeze or turn back to the agent before giving a final trained alert? Does Pico only freeze when it smells? Does Pico try to “trick the system” only when narcotics are present?
This is the problem with the probable cause on all fours. It is above all for the officer to interpret the actions of the dog. And, without the benefit of dashcam or body cam recordings, these subjective shots are part of the official record and are hard to dispute. This account of events raises enough questions about the dog’s actions that the court is unwilling to characterize what is described above as âprobable causeâ.
The ruling says the government cannot have the evidence it obtained using an intrusive dog. And that means he can’t have his conviction either. Going forward, cops in Idaho will need an actual probable cause – not just inconsistent dogs – before they search people’s cars at traffic stops.
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Filed Under: 4th Amendment, drug dogs, idaho, research