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Is a Dog Sniff a Search?

A police officer stops your for speeding, goes back to his car, grabs his drug detection canine, and walks it around your vehicle.  A police officer suspects that you are growing marijuana in your home, brings his drug detection canine to your residence and has it sniff near your front door.  An officer bring a drug detection dog into an apartment building and have it sniff each apartment door from the common hallways? Are these searches?  Do they require warrant?  Are there exceptions to the warrant requirement that apply?

Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”.  This is commonly known as the “warrant” amendment.  In other words, if the police are going to search you or your property, they must have a warrant to do so.  In order to obtain a warrant, there must be probable cause that contraband will be found in the place to be searched. Over the years, the Supreme Court has delineated various exceptions to this principle, however.  Some, but not all of those exceptions, are:  1) consent; 2) exigent circumstances; 3) automobiles; 4) search incident to arrest; 5) plain view.  Absent an exception, any search without a warrant is unconstitutional.

That brings us to the questions posed above.  What about the dog sniff after a traffic stop?  At first glance, it appears to be a search requiring a warrant.  After all, the officer is using a dog to sniff out potential drugs in your car.  And, as we have already established,  a search triggers the need for a warrant absent an exception.  However, courts have consistently ruled that bringing out the canine during a traffic stop is not a search that triggers the need for a warrant (or the automobile exception).  In other words, an officer does not need probable cause to utilize a drug detection dog during a traffic stop.  However, an officer can’t simply walk the dog around the vehicle just because he or she has the desire to do so.  Rather, an officer needs a reasonable articulable suspicion that the vehicle contains contraband before doing so.  Some of the common ways an officer acquires such a suspicion are: 1) the vehicle smells like marijuana; 2) the officer observes evidence of drugs in “plain view”; 3) the driver is making furtive movements and has blood-shot and watery eyes.

What about the second scenario posed:  can an officer bring a drug detection canine to your front door and see if it triggers? It is well settled that front porch/sidewalk of a home are open to the public and not subject to privacy issues.  Consequently, an officer does not need a warrant to walk up your sidewalk and knock on your door.  So is it equally settled that that same officer can be accompanied by a drug detection dog?  No.  In fact, the United States Supreme Court ruled the opposite way; under such a scenario, a warrant was needed.  The Court concluded that the porch was part of the home’s “curtilage” and, thus, was subject to privacy interests when the government attempts to intrude.  The Court essentially stated that bringing a drug detection dog to a home is not consistent with what is expected from the general public someone comes to your door.

What about the third scenario, where an officer brings a drug detection dog into the common hallways of an apartment building?  This is unsettled.  Some state courts have permitted this conduct without a warrant, some have not.  Because of the inconsistencies from various jurisdictions, the United States Supreme Court accepted review from a case arising out of Illinois, where its supreme court held that a warrant was required. No decision has been made yet.  Stay tuned