K-9 Entrances Lead to Suppressed Evidence in Stinker State
October 26, 2021	| Ken Wallentine
Idaho v. Howard, 2021 WL 4535296 (Id. 2021)
Idaho v. Randall, 2021 WL 4535294 (Id. 2021)
Last month's issue of Xiphos reported what seemed to be a hyper-technical application of Fourth Amendment jurisprudence in which the trespass analysis of the Fourth Amendment articulated in United States v. Jones (565 U.S. 400 (2012)) was applied to hold that even one chalk mark dancing on the head of a pin (or a car tire) violated the Constitution. In Taylor v. City of Saginaw (2021 WL 3745345 (6th Cir. 2021)), the court held that "chalking is a search for Fourth Amendment purposes." If your memory has slipped on the Jones case and the trespass theory of search and seizure, don't despair. Just refer back to the July issue of Xiphos where we discussed the reset back to 1988 and Justice Scalia's lead in moving away from the "reasonable expectation of privacy" test made famous by Justice Harlan's concurrence in Katz v. United States (389 U.S. 347 (1967) (Harlan, J., concurring)).
Now that you've dusted off your junior law school degree, let's talk about a couple of traffic stops in Idaho. In the first case, officers stopped Aaron Howard for a traffic violation and discovered he was the subject of an arrest warrant. The officers arrested him and called for a detector dog team to sniff the car. The dog sniffed and gave a positive final response to the odor of controlled substances. A search of the car found methamphetamine, heroin and drug paraphernalia.
A traffic stop and sniff by the numbers, right? Well, almost, but not quite. Howard wins by a nose, albeit a very small nose and not even the entire small nose. Pico, the detector dog, poked a little bit of his nose through the open car window for the briefest second or two. Pico didn't enter the car and did not put his paws on the windowsill; Pico just sniffed a bit at the window.
For the Idaho Supreme Court, that was enough. Relying heavily on the 6th Circuit's logic leading to a few nanograms of chalk dust on rubber violating the Constitution, the Idaho Supreme Court held that Pico illegally trespassed. Thus, Howard should go free. The Idaho Supreme Court Chief Justice disagreed and dissented.
In our second Idaho case, a trooper stopped Jacob Randall on the interstate for a traffic violation. Prior to the stop and during his conversation with Randall, the trooper noted a number of cues. He told Randall "his travel plans were consistent with drug trafficking and asked Randall whether he would consent to a drug dog sniff of the exterior of his car." Randall agreed and the trooper retrieved his drug detection dog, Bingo, from his patrol car.
Many federal courts have addressed the spontaneous springing into a car by a trained detector dog.
When he arrived at the driver side door, Bingo immediately leapt into the car through the open window. However, Bingo's hindquarters caught just outside the window and the trooper gave him a boost, pushing Bingo fully into the car. Bingo proceeded to the back seat of the car and gave a response to the presence of the odors of narcotics. Troopers found 65 pounds of marijuana.
Relying on established Idaho Court of Appeals precedent, the trial court declined to suppress the drug evidence, ruling Bingo acted instinctively in jumping through the window. The Idaho Supreme Court reversed. The Chief Justice also dissented in this case. For Idaho attorneys, both cases bear careful review. We've only addressed the black letter rules that apply for detector dog handlers in Idaho, that is, that any entry, literally even by the tip of a whisker, may be grounds for suppression in the Spud State (or is it the Stinker State?).
For the rest of the nation, pay attention, but don't sound the alarm. Many federal courts have addressed the spontaneous springing into a car by a trained detector dog. The large majority of courts to consider the question have ruled it is not a Fourth Amendment violation (read the dissent in the Randall case for a long list). Most of those decisions consider whether there was some police misconduct, such as the officer opening the door and intending to set up the scenario for a possible leap into the car. However, in a case that post-dates most of the spontaneous canine entry cases, the Supreme Court has ruled the officer's subjective intent is usually irrelevant to whether an action violates the Fourth Amendment (Ashcroft v. al-Kidd, 563 U.S. 731 (2011)).
For all readers, don't take offense at the junior law school quip. Decades ago, I graduated from the J. Reuben Clark Law School. But Clark, who was once Undersecretary of State and the Ambassador to Mexico, was the son of Joshua Reuben Clark. Thus, I actually attended the J. Reuben Clark, Junior, School of Law. For those readers in Idaho, don't be offended at the Stinker State comment. I'm an Idaho boy. Haven't you filled your tank at a Stinker Station? In the 30s, Farris Lind became known as "the Stinker" for undercutting prices on gas—he even adopted a skunk as his gas station logo. I hated catching skunks in my trap line along the Bear River on our family's ranch outside of Georgetown, Idaho.
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