PD-0841-24 01/15/2025
Does the intrusion of a drug dog’s nose through the open window of a car during a free-air sniff violate the Fourth Amendment or require exclusion of any evidence found?
A trooper pulled Organ over and approached the car’s passenger side window. The passenger cracked the window, and, on the trooper’s request, lowered it further. The trooper smelled leftover food and saw takeout packages. He also thought he smelled marijuana and so requested a drug dog. Once Organ and his passenger (the car’s owner) were out of the vehicle, the K-9 handler led Jaks on a leash around the car. At the passenger’s side window, Jaks jumped on the car and stuck his nose through the open window. The handler urged him toward the front of the car, but Jaks returned twice more to the open window, each time putting his paws on the windowsill and sticking his head through the open window. After his third sniff, he immediately sat down in front of the window, as he had been trained to do when he detected one of five drugs. The trooper searched the car and found a large trash bag filled with Etizolam pills, a Penalty Group 3 controlled substance.
On Organ’s motion, the trial court suppressed this evidence, concluding that the Jaks’ nose unlawfully trespassed into Organ’s vehicle. The State appealed. The court of appeals affirmed. It acknowledged that several federal circuit courts had ruled that a drug dog’s entry into a vehicle without police encouragement did not implicate the Fourth Amendment. The court concluded, however, that United States v. Jones, 565 U.S. 400 (2012), undermined these decisions when it recognized a property-based theory of what constitutes a search. Quoting Jones, it held that “by sticking his nose inside [Organ’s] car while performing an open-air sniff, Jaks ‘physically occupied private property for the purpose of obtaining information.’”
The State argues that the passing of the dog’s nose across an invisible boundary line into the interior airspace of the car was not a trespass. The idea that merely “breaking the plane” without a physical touching constituted a trespass applies only to real property, not personal property like a vehicle. The State also contends that the incidental touching of Jaks jumping on the vehicle is not a trespass under Jones. Alternatively, it argues that even if what occurred here was a search, it was not unreasonable or shouldn’t require evidence exclusion, reasoning: (1) the dog’s actions were instinctual, (2) police had reasonable suspicion that the vehicle contained contraband, (3) Organ assumed the risk that the car’s owner would leave the window down, and (4) very little information was conveyed by the intrusion.
