Law enforcement personnel have a variety of sophisticated means available to help them detect wrongdoing, including electronic media, GPS tracking devices, and other high tech items.
But they often rely upon low tech devices in pursuing and apprehending criminals. One of those tools is a dog. Canines play an important role in the law enforcement process, particularly in dealing with drug-related offenses.
A pair of high-profile cases involving this low-tech law enforcement practice was recently heard simultaneously by the U.S. Supreme Court. The two cases, both out of Florida, arose out of the use of dogs to detect illegal drugs.
The High Court hearing, held Oct. 31, attracted considerable attention from the general media as well as those focusing on legal topics. See Kimberly Atkins’ “U.S. Supreme Court puts drug dogs’ noses to the test,” Minnesota Lawyer, Nov. 5, 2012.
But the high level of interest has overlooked the discrepancy between dog drug detection decisions of the U.S. Supreme Court, which has usually upheld those searches, and the Minnesota Court of Appeals and Supreme Court, which generally has found them constitutionally impermissible. Awaiting the ruling in the two Florida cases provides an opportune time to review that distinct dichotomy.
The U.S. Supreme Court generally has been supportive of the use of drug-sniffing dogs in connection with searches of both vehicles, Illinois v. Caballes, 543 U.S. 405 (2005) (lawful traffic stop) and in public places, U.S. v. Place, 462 U.S. 696 (1983) (luggage at airport) in rejecting challenges under the search-and-seizure provision of the Fourth Amendment of the U.S. Constitution. See Leslie A. Lunney, “Has The Fourth Amendment Gone To The Dogs,” 88 OR. L. Rev. 869 (2009). But the two fracases from Florida bring the issue closer to home. While one of the cases arises in the vehicular context, the other pertains to search of a residence.
In Florida v. Jardines, No. 11-564, acting on a tip, the police brought a drug-sniffing dog to a house before getting a warrant. After the dog signaled the scent of contraband, the police obtained a warrant, searched the house, and found a marijuana growing operation inside the premises, leading to drug charges.
The other case, Florida v. Harris, No. 11-817, involves a patrol officer and his drug-detection dog, who stopped a truck after confirming that the license plates had expired. Approaching the truck and noticing the driver was shaking and could not sit still, the officer deployed the dog who did a “free air sniff” and signaled the presence of drugs, despite the refusal of the driver to allow a search of the vehicle. Chemicals were found in the truck for making methamphetamine, prompting a criminal drug prosecution.
The Florida Supreme Court, in two pre-trial rulings, held that the searches were improper in each case because of the lack of probable cause, prompting review by the Supreme Court. Both cases prompted lively discussions from the Supreme Court Justices concerning the legality of the dog-sniffing operations. The four liberal-leaning members of the bench seemed skeptical of the practices, especially in the residential case, and they were joined by Justice Antonin Scalia, a bedrock conservative, who shared some of their doubts, while the other jurists appeared more supportive of the canines’ conduct.
The ambivalence reflected in the High Court dialogue in the two Florida cases is reflected in dog detection matters decided by the Federal and state courts in Minnesota. A series of cases decided by the Minnesota appellate courts over the past decade have dealt setbacks to the practice.
The pattern began with State v. Wiegand, 645 N.W. 125 (2002), in which the Supreme Court barred canine sniffing of a vehicle stopped for an equipment violation in the absence of “some suspicion of other illegal activity. This proscription was carried out in a pair of decisions the following year by the Court of Appeals in drug-related prosecutions. In State v. Buchta, 2003 WL 1815874 (Minn. Ct. App. Apr. 8, 2003)(unpublished), the appellate court threw out a drug conviction of a driver in Crow Wing County District Court who was stopped because of a broken tail light, which preceded a drug-detecting dog arriving with the backup officer smelling the presence of meth. Applying Wiegand, the court held that the search was illegal, resulting in suppression of the contraband and reversal of the conviction. The use of the drug-detecting dog was not permissible because the police officer did not offer “articulable suspicion” of wrongdoing by the driver, other than the broken tail light.
A week later in State v. Miller, 659 N.W.2d 275 (Minn. Ct. App., 2003), the appellate court threw out drug charges against a passenger in a pickup truck leaving a home under surveillance for drug distribution after a vehicle search was initiated by a drug-detecting canine. The drug detection did not pass the smell test, according to Scott County District Court judge, who threw out the prosecution because of insufficient grounds to conduct the search.
The appellate court affirmed on grounds that the search and seizure violated the Fourth Amendment because law enforcement officers do not have an adequate basis to suspect drug-related activity before the dog began the sniffing, which was undertaken under “questionable circumstances,” stemming from law enforcement concerns that drug activity was taking place in the home from where the car had been located. Because the officers lacked a “reasonable, articulable suspicion” that either the driver or passenger was involved in any drug related activity, or any other criminal offense, there was insufficient basis to stop the car, which was re-enforced by a prior search of the home, which did not yield any drugs.
The Minnesota Supreme Court extended the rationale of those cases to a drug-detecting dog sniffing of a self storage unit in State v. Carter, 697 N.W.2d 199 (Mar. 2005). Deeming the sniffing to be a “search” covered by the Fourth Amendment, the Court suppressed the evidence on grounds of absence of “reasonable, articulable suspicion.”
A pair of cases two months apart reached rival results. In Jacobson v. U.S. Currency, 728 N.W.2d 510 (Minn. 2007), dog sniff evidence was barred from proving a connection between $55,900 in cash and drug trafficking, allowing claimant to reclaim the forfeited funds. But in State v. Davis, 732 N.W.2d 173 (Minn. 2007), it upheld a warrantless dog sniff in a common hallway near the apartment door of a tenant on grounds that the police had sufficient suspicion of illegal drug activity to bring in the dog.
While these decisions were issued by the Minnesota state courts, the 8th Circuit Court of Appeals has been more inclined to follow the reasoning of the U.S. Supreme Court case. The difference between the jurisdictions was reflected in a pair of cases decided differently by the respective tribunals late in 2012 as the two Florida dog-detection cases were under advisement by the High Court. As 2012 drew to a close, the Minnesota Appellate Court again reversed a drug conviction based on a sniffing dog. In State v. Khampanyavong, 2012 WL 6652600 (Minn. App. Dec. 24, 2012)(unpublished), the court reversed a Hubbard County District Court conviction of a 5th degree possession offense in a duffel bag that had been in the defendant automobile when it rolled over. Later, a detection drug dog sniffed marijuana in the bag, which the driver was holding while in a police vehicle.
Convicted of drug possession, the driver appealed on grounds that the warrantless search of the bag was improper. The appellate court agreed and reversed.
The prosecution’s reliance on the “automobile” exception to the warrant requirement was inapplicable because the duffel bag “was not searched when it was within [the] automobile.” Therefore, the search was improper, its fruits inadmissible, and the conviction overturned.
But the 8th Circuit two months earlier upheld a dog sniff drug detection in holding U.S. v. Grant, 696 F.3d 780 (8th Cir. Oct. 18, 2012). Overruling the lower court’s suppression of cocaine detected by a dog in a vehicle, it held that the driver consented to the search after being stopped for speeding. A dissent by Judge Myron Bright would have stricken the evidence because the police officer asking the driver if he would allow a dog search was “coercive, not consensual.”
In his classic work six decades ago, “The Skin of Our Teeth,” playwright Thornton Wilder lauded animals like dogs because “they don’t talk much.” While drug-detecting dogs “don’t talk much,” the Courts have a lot to say about the legality of the apprehension and pursuit of law wreckers due to canine drug sniffing. How the Supreme Court will resolve the two pending Florida cases may go a long way to shaping future law enforcement practices in Minnesota and around the country.
PERSPECTIVE POINTERS: Different dog detections
- Debruker v. Commonwealth; (Kentucky, 2002): Bloodhounds trailing fugitive
- Jarrett v. Town of Yarmouth, (1st Cir. 2003): Apprehending dangerous offenders
- 6 U.S.C. sec. 1116(a) (2000): Explosives and biological weapons
- USDA Detector Dogs (1996): Proscribed farm products
Originally published in the Janurary 28, 2013 edition of Minnesota Lawyer.