US Supreme Court Florida v. Jardines 11-564

Decision here.

   This is a K9 decision, but the court's reasoning has some pretty obvious implications that go well beyond the use of drug dogs.  This is one of those decisions that every officer needs to familiarize themselves with.

   Police received an unverified tip that there was marijuana in Jardines' house.  The detective working the case conducted surveillance on the house for a whopping fifteen minutes, saw no activity, and then approached the front door of the house with a K9 and his handler.  The K9 alerted on the front door, and the officers left.  They returned later with a search warrant.  They found a marijuana grow in the house, and Jardines was arrested.

   The trial court suppressed the marijuana, ruling that the dog sniff was an unreasonable search and that the warrant was invalid because the police obtained it relying on evidence from said unreasonable search.  This was appealed all the way to the Supreme Court.

   There are a couple of different ways that the courts decide whether or not a search has occurred.  The original test (which was recently reaffirmed in Jones) is the trespass test: if whatever the police are doing involves physically trespassing on someone else's property, then it is a search.  More recently, Katz created the reasonable expectation of privacy test.  Most cops are very familiar with that one: if a person can reasonably expect something to be private (like a phone call), then a search occurs whenever the police violate that expectation of privacy.  The important note is that the reasonable expectation of privacy test did not replace the trespass test, it simply added to it.

   The court explained that the curtilage is part of the home for Fourth Amendment purposes, and that laws regarding trespass establish that no one may set foot upon another's property without the owner's permission.  On the other hand, our culture has a sort of implied invitation to the front door.  Anyone can walk up to the front door of a house, promptly knock, wait a while to be received, and then leave (unless they are invited to stay).  This implied invitation is limited in terms of the areas that a visitor can go; you wouldn't expect someone to knock on your back door, hang out by your bedroom window, or just open the door and let himself in.  But this implied invitation is also limited in terms of purpose: just because we traditionally allow strangers to knock on our door doesn't mean that we would normally let someone run a metal detector over our front yard or run a drug detecting dog on our front door.

   And that was the deciding factor in this case: the police went way beyond the scope of what an average person would be entitled to do while physically intruding on the property of another.  This wasn't a case of knocking on the door to try to talk to Jardines, this was a search of Jardines' home which was conducted without a warrant, and without probable cause or exigent circumstances.  

   The prosecution tried to argue that the dog sniff is not a search because there is no legitimate privacy interest in contraband (this reasoning has been used to justify dog sniffs of cars and suspicious packages).  But the court merely pointed out that this case wasn't decided on the basis of Jardines' expectation of privacy.  When the police use dogs to sniff cars and suspicious packages, they are doing so without physically intruding on the defendant's property.  In this case, they were very clearly on the defendant's property.  That makes this a search, and since there was no legal basis for a search, the suppression of the evidence was affirmed.

United States Supreme Court Florida v. Harris 11-817

Decision here.

   Ofc. Wheetley was a K9 handler who stopped Harris for having an expired license plate.  During the stop, Harris refused consent to search his car so Wheetley walked his dog (Aldo) around the car.  When Aldo alerted to the door handle, Wheetley searched the car and found meth precursors (it's worth noting that Aldo was trained to detect meth, but not meth precursors).  Harris was arrested.  After waiving Miranda, Harris admitted that he routinely cooks meth and that he can't go for more than a few days without using.

   Later on, Wheetley stopped Harris again.  Aldo alerted to the door handle again, but this time nothing was found.

   Harris moved to suppress the results of the search, arguing that Aldo's alert was not probable cause.  At trial, the prosecution presented evidence of Aldo's and Wheetley's ongoing training and testing (during which Aldo apparently did very well).  The defense didn't attack the training, focusing instead on Aldo's field performance and especially on the two false alerts with Harris.  Eventually, the Florida Supreme Court ruled in favor of Harris, finding that in order to establish probable cause the prosecution had to present a laundry list of items including training and certification records, explanations of those records, and especially records of field performance.  The court was very concerned with numbers of false positives, and held that without every item on the list there was no way to establish probable cause.  Since Wheetley didn't keep exhaustive field performance records, the court held that Aldo could therefore never establish probable cause.

   The US Supreme Court reversed that.  This decision discusses the nature of probable cause, specifically that "probable cause" describes a fair probability, based on the totality of the circumstances.  It is not reducible to precise definition, it doesn't lend itself to checklists or mechanical tests, and it's not so rigid a standard as proof beyond reasonable doubt or preponderance of the evidence.  In the context of a search, an officer has probable cause when the facts available to him would a warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.  The court also mentioned that probable cause is not applied in hindsight: you can't decide whether or not there was probable cause based on whether or not something was found.

   Relating all that to drug dogs, the Court held that the prosecution doesn't have to present a specific list of items in order to show PC.  They should present what evidence they have, and the defense can attempt to refute that or present their own evidence, but there isn't a particular list of criteria (like field performance records) which have to be met.  Also, the US Supreme Court criticized the Florida Supreme Court for it's fascination with field performance records.  The Court noted that while they can certainly be evidence, they aren't really all that reliable compared to training records.  The reason for that is that training and evaluation is conducted in a controlled environment, where the accuracy of the dog's alerts can actually be determined.  Field records probably won't reflect the dog's false negatives.  More pertinent here, false positives may not be false: the dog may have alerted to drugs that were hidden too well for the handler to find, or the dog may have alerted to the odor of drugs which were present but no longer are (such as all the meth that Harris admitted to doing).  The court reasoned that neither of those circumstances would be an error on the dog's part, although it would be recorded as one.  Hence the unreliability of field performance records.

   In this case, the Court ruled that there was ample evidence from Aldo's training to show that his alert created a fair probability that contraband would be found (or, as the Justices put it, his sniff was up to snuff).  The suppression of the evidence was reversed.

Colorado Supreme Court People v. Esparza 11SA234

Decision here.

   This case involves two separate incidents.

   In the first, Esparza was stopped for a traffic violation.  The officer discovered that her license was suspended and arrested her.  At her request (and in compliance with department policy), her truck was left parked where it was.  Another officer brought a drug detection dog to the truck, and it alerted.  Police searched the truck and found a pipe with a testable amount of meth residue.

   In the second incident, the same officer who had arrested Esparza the first time saw that she was driving again.  She made it to a motel parking lot, where he contacted her (no other traffic violation was mentioned for this incident).  After confirming that her license was still suspended, he arrested her.  Once again, she requested that her truck be left parked where it was.  Once again, her request was granted, and a dog was brought to the scene.  The dog alerted, the truck was searched, a meth pipe with residue was found inside.

   Relying on previous supreme court cases (including People v. Haley and People v. Unruh), the trial court suppressed the drug evidence because the dog sniffs were conducted without first establishing reasonable suspicion beyond the traffic charges.  The people filed an interlocutory appeal.

   The Colorado Supreme Court overturned some of its previous decisions, and held that although the Colorado Constitution does sometimes afford greater protection against search and seizure than the Federal Constitution, K9 sniffs are no longer one of those cases: "To the extent that we had previously suggested otherwise, we now reject the broad proposition that government conduct permitting a trained narcotics detection dog to sniff outside a closed container, in and of itself,  infringes  upon reasonable privacy interests in the contents of that container, thereby constituting a search within the meaning of article II, section 7."  In other words, a K9 sniff does not require PC or RS as long as the dog is trained to only alert on contraband.  The reasoning for this decision is the same as the reasoning in Federal case law: people do not have a legitimate privacy interest in something they do not have a right to possess.

   Of course, it's important to note that a suspicionless K9 sniff that prolongs an otherwise lawful detention would still violate both the Colorado Constitution and the Federal Constitution.

US Supreme Court US v. Karam 06-8056

Decision here.

   Karam was stopped by a Wyoming trooper for following too closely.  During the traffic stop, the trooper told Karam he was going to give him a warning.  The trooper also talked to Karam about his travel plans and whatnot while he was running his license through the computer (apparently Wyoming is one of those places where the drivers in traffic stops sit in the patrol with the cop.  Crazy bastards).  Karam said something early on about needing to use the bathroom, and the trooper pointed out that there was a truck stop which Karam had just passed.  Karam said something which the trooper believed (possibly mistakenly) to mean that he had stopped there to buy tea, which the trooper knew to be false.  Karam gave vague, inconsistent responses about where he was going and where he had stayed, and claimed to have flown from Akron to LA and decided to rent a car to drive back to Arkon.  Karam's car apparently contained some cardboard boxes which the trooper thought were suspicious because he was aware of another case where marijuana had been packaged in similar boxes.  Other than that, it contained less luggage than the trooper would have expected for the trip.  Karam was given a warning for the traffic violation, released, and then asked for consent to search his car.  He refused.

   Then the trooper told him he was not free to leave, and detained him while they waited for a K9 to arrive and sniff the car.  The dog alerted, the car was searched, the drugs were found, Karam was arrested and eventually convicted.  He appealed, and the US Supreme Court affirmed his conviction.

   The court explained that investigative detentions must be justified at their inception, and reasonably related in scope to the circumstances that justify the stop.  Traffic stops are similar to investigative detentions, so the same applies to them (they can last long enough to check records, fill out tickets/warnings, etc).  During the stop, an officer is allowed to ask questions both related and unrelated to the reason for the stop, so long as unrelated matters don't prolong the stop.  Once the business of the stop has been handled, an officer may continue the stop only if the officer develops additional reasonable suspicion for continuing the stop or if the stop becomes consensual (I've always thought downgrading from a compulsory stop to a consensual one is a stretch, but so far no one has screwed that up badly enough for the courts to drop the hammer).

   In this particular case, the court discounted some of the factors that the state courts had relied on for determining that there was PC.  Even though reasonable suspicion can be based on factors which have innocent explanations, the court is only willing to give us just so much leeway with that.  The court held that there was nothing suspicious about a stack of cardboard boxes in a car,  The court also held that even though LA apparently exports drugs and Akron apparently imports them, there is nothing suspicious about driving from one metropolitan area to another (even if you flew the other way a week and a half ago).

   The court noted that Karam may not have actually claimed to have stopped at the truck stop, but that the trooper understood him to have claimed that.  Reasonable suspicion must be based on facts known to the officer at the inception of the stop, but it can also be based on facts which an officer mistakenly believes to be true so long as the mistake of fact is reasonable.  So even if Karam didn't actually say that he stopped, if the trooper thought he heard that then this perceived lie can be considered in determining whether or not there was reasonable suspicion.

   Other than that, there was the inconsistent responses about travel arrangements.  The court held that although none of the facts relied on in this case would alone constitute reasonable suspicion, reasonable suspicion is not a "divide-and-conquer" analysis; the situation has to be taken as a whole.  The various facts of the case viewed together were sufficient to justify detaining Karam until the drug dog showed up.

US Supreme Court Illinois v. Caballes 03-923

Decided January 24, 2005.

   Caballes was stopped for speeding.  As soon as the traffic stop was made, another officer came to the scene of the stop with a K9.  When he got there, Cabelles' was in the first officer's car while the first officer was filling out a warning ticket.  The K9 handler had the dog sniff the outside of Caballes' car.  The dog alerted, and the officers searched the car for drugs.  They found marijuana (enough for a 12 year sentence).  The entire incident took 10 minutes.  Caballes appealed his conviction, and the Illinois Supreme Court held that the dog sniff converted his detention from a traffic stop to a drug investigation, and that there was no reasonable suspicion for a drug investigation.

   The US Supreme Court reversed the Illinois Supreme Court, holding that since the dog sniff did not prolong the traffic stop beyond the time required to complete the original purpose of the stop, no additional reasonable suspicion was required.  And since the court had previously held that dog sniffs for contraband do not invoke the fourth amendment, and since SCOTUS deferred to the trial court's judgment that the dog's alert was sufficient to establish probable cause, the evidence was admitted and the conviction affirmed.

Colorado Supreme Court People v. Haley 01SA148, 01SA149, 01SA150

Decided 11-27-01.

   Officer Miller was working drug interdiction on I-70.  He saw a car following a truck too closely, and made a traffic stop.  The car had three occupants, Haley was the driver.  During the stop, Officer Miller separated Haley from the passengers, noted that they were all acting nervous (shaking hands, licking lips, etc), and that Haley said they had rented the car to drive home (Kansas City) after flying to California for a week but the passengers didn't seem to know what their destination was.  He decided not to issue a traffic ticket, and told Haley that he was free to go.  Immediately after telling him he was free to go, he asked for consent to search the car for drugs with a K9.  Haley gave consent to search the luggage, but not the car.

   Haley removed the luggage from the car, and put it a few feet away.  Miller ran his dog on the luggage, and the dog didn't alert.  Miller ran his dog on the car (Haley protested this and shouted at Miller).  The dog alerted on the car, but then moved to protect Miller from Haley.  Miller put the dog back in the patrol car, then detained everyone for another ten minutes until other officers arrived.  When two more officers arrived, they searched everybody.  Haley and one of the other occupants resisted, there was a foot chase and a failed attempt to ditch the drugs, and eventually all three occupants of Haley's car were arrested and charged with a variety of offenses.  The trial court suppressed the evidence against them, and the prosecution appealed.

   The Colorado Supreme Court held that there was no reasonable suspicion to justify the k9 sniff or to justify prolonging the traffic stop.  Also, Haley's refusal to consent to a search of the car could not be used to support reasonable suspicion.  The prosecution argued that a dog sniff of luggage and a vehicle in a public place did not constitute a search, but the court ruled that Haley, his luggage, and his car were only in a public place because they were being unlawfully detained by Ofc. Miller.  Accordingly, the drugs were suppressed as the fruit of the poisonous tree.

Colorado Supreme Court People v. Unruh 84SA299

Decided 1-21-86.

   A police officer drove past three guys who were attempting to conceal something large and heavy in the trunk of a car.  When he came back, the car was abandoned, and the object in question turned out to be a safe.  One of the suspects was apprehended, and admitted to burglarizing a nearby house.  This suspect also claimed that the safe contained cash and drugs.  Another detective found a house nearby that appeared to have been broken into (the door had been broken open).  Officers searched the house, and found drug paraphernalia.  Unruh came home confirmed that his safe was stolen, and was informed that it had been taken to the police station and that he could get it in a day or so.

   While the safe was still at the station, officers had a K9 sniff the exterior of the safe.  The K9 alerted, indicating the presence of drugs.  Police obtained a search warrant, and found a lot of cocaine and marijuana in the safe.  Unruh was charged and convicted, and appealed his conviction on the grounds that evidence against him should have been suppressed.

   The Colorado Supreme Court recognized that other courts had already held that a dog sniff was not a search under the fourth amendment, but decided to afford greater protection against searches under the Colorado Constitition.  So the court ruled that a dog sniff was in fact a search, but that because of the minimal intrusion involved, it could be justified on the basis of reasonable suspicion.  Unruh also argued for suppression on the basis that the search of his house was unreasonable.  The court held that the search of his house was valid under the emergency exception (police officers may enter private property without a warrant where there is a reasonable belief that the premises have been or are being burglarized in order to secure the premises and to search for suspects and victims), and that although impermissibly expanded the search beyond the scope of the exception (they looked in dresser drawers, apparently they were looking for very small suspects), the paraphernalia was found in a place where they had authority to search.  So the warrant was good, and the conviction was upheld.

US Supreme Court US v. Place 81-1617

Decided 6-20-83.

   Place was flying from Miami to New York when he somehow aroused the suspicion of law enforcement officers.  They contacted him, and he presented ID and consented to a search of his checked luggage.  The police did not search him, because his flight was due to leave in ten minutes.  As they released him, he made some remark about how he had recognized that they were police officers.  Because of this (?), they did a little more digging and figured out that he had listed fake addresses on his luggage tags.  They called the police in New York to let them know Place was coming.

   In New York, DEA agents contacted Place as he about to leave the airport with his luggage.  He made the same remark about knowing that they were cops.  They told him that based on their own observations and on information from Miami, they believed he was carrying narcotics.  They asked for consent to search his luggage, and he refused.  They told him that they were going to detain his luggage in order to get a search warrant, and gave him a choice to either accompany them or not.  He chose not.

   The DEA "detained" Place's luggage for about an hour and a half, then ran a dog on it.  The dog alerted on one of the two bags.  This was on a Friday, and they held on to the luggage until Monday when they got a warrant for the bag the dog had alerted on.  There was cocaine in there, and Place was later arrested.

   The trial court applied the reasoning of Terry v. Ohio to the DEA's "detention" of Place's luggage.  The Court of Appeals called bullshit on the 90 minute detention, and this case found it's way to the Supreme Court.

   The Court ruled that the authority to briefly detain people based on reasonable suspicion also applied to the detention of property, so the initial detention of the luggage was permissible.  The court also ruled that because a K9 sniff involves such limited intrusion, and only gives the police information about the presence of contraband (which people do not have a right to possess, and therefore have no legitimate privacy interest in), a K9 sniff is not a search for fourth amendment purposes and does not require probable cause.  Finally, although the court declined to put a specific time limit on investigative detentions, the court held that the facts of this case did not support a 90 minute detention of luggage.  So even though this decision expanded government authority to both detain property and conduct K9 sniffs, the police in this case violated the fourth amendment and Place's conviction was reversed.