Drug-detecting dogs have long been permitted under the law to sniff around the outside of a car without any warrant, and a federal appeals court has now extended that rule by holding that evidence was properly seized when a dog jumped into an open car on its own instincts.
In United States v. Pierce, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge Joseph J. Farnan Jr. of the District of Delaware that denied Jimmy Lee Pierce's motion to suppress a kilogram of cocaine and $20,000 in cash found in his glove compartment. Pierce was sentenced to 25 years in prison after he entered a conditional guilty plea in which he reserved the right to appeal the constitutionality of the search.
On appeal, Pierce's lawyers argued that the K-9 officer who was handling the drug-sniffing dog had encouraged the dog's jump into the car. But the 3rd Circuit, after reviewing both a video of the July 2008 traffic stop and the testimony at the suppression hearing, concluded that it was pure instinct that prompted the dog's leap into the car, which was left open by Pierce.
"A trained narcotic dog's instinctive action of jumping into the car does not violate the Fourth Amendment," visiting U.S. District Judge Katharine S. Hayden of the District of New Jersey wrote.
Hayden, who was joined by 3rd Circuit Judges Jane R. Roth and Maryanne Trump Barry, found that courts have held an interior sniff to be unconstitutional where the officer "facilitated or encouraged" the dog's entry into the car.
But when the dog acts on its own instinct, no such concerns arise, Hayden found.
"Perforce, 'instinctive' implies the dog enters the car without assistance, facilitation, or other intentional action by its handler," Hayden wrote. According to court papers, Pierce was stopped for speeding by the Delaware State Police.
A camera mounted on the dashboard of the patrol car driven by Cpl. Douglas Brietzke recorded the entire traffic stop, including discussions between Brietzke and Cpl. Alison Meadows, who was handling Cole, the drug-sniffing dog.
The 42-minute video showed that Cole jumped onto the front seat through the open driver's door and "alerted" in the areas of the passenger seat and glove box. Police then conducted a warrantless search of the car and found $20,000 and close to one kilo of cocaine when they opened the glove box. In the appeal, Assistant Federal Defender Daniel I. Siegel argued that the search should have been suppressed because Meadows effectively encouraged the dog to jump into the car by extending its leash.
The video, Siegel argued, "reflects that the handler extended the length of the leash just before walking the dog to the open driver's door, facilitating the dog's entry into the car."
As a result, Siegel argued that the case should be remanded for a ruling on whether the exterior sniff provides independent support for the troopers' warrantless search.
Hayden disagreed, saying the 3rd Circuit's independent review of the video showed that Farnan committed no error when he concluded that the dog had "acted instinctively and without facilitation by his handler."
Meadows testified that when handling Cole, she does not lead him after he first alerts, but instead gives him his lead. Hayden found that Meadows' testimony "is credible and visible on the video."
On the basis of the video, Hayden said, the 3rd Circuit concluded that "Cole's interior sniffs, as a natural migration from his initial exterior sniffs, did not constitute a search requiring a warrant or probable cause."
Hayden also found that there was no point to ordering the remand that Siegel had requested because the video and testimony supported the district court's finding that Cole initially alerted to the outside of Pierce's car in the area of the front passenger seat.
"The remand that Pierce is asking for would inevitably result in a pro forma exercise," Hayden found, because Farnan already concluded that Cole alerted to the outside of the car -- a finding that provides probable cause for a police officer to search the interior of the car.
Siegel, in a brief interview, said he had not yet discussed the ruling with Pierce and that no decision has been made about whether to pursue further appellate options.