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For anyone who has dogs, or is familiar with the characteristics of them, you know that the sense of smell is impeccable. The canine sense of smell is so good, that police and other law enforcement agents have even used them in detecting criminal activity. More particularly, the presence of narcotics. The question then becomes when, if ever, police can legally use these drug-sniffing dogs to search for narcotics and the like? Especially when these drug-sniffing dogs are used to provide probable cause for a further search that was not already present.

Search

The Fourth Amendment protects citizens from unreasonable search and seizure by police officers and other government agents. When looking at conduct by police officers, in regards to the Fourth Amendment, one must first determine if a search has occurred. If no search has occurred, then no Fourth Amendment protections will be granted to those opposing the actions by police. In the infamous case of United States v. Place, it was held that the sniff of a police dog is not a search subject to Fourth Amendment protections, so long as police are in the area the dog sniffs legally.[1] 

Permissible Presence

The next area to be examined involves whether or not the police are in the area of the dog-sniff legally. A classic example of this is when a traffic stop occurs with a drug-sniffing dog present. During the stop, which must be lawful, the dog may alert to the presence of narcotics around the vehicle. This could then give the officers probable cause to narcotics being present. This would be deemed legal conduct and justify a further search of the vehicle. In Illinois v. Cabelles,[2] Justice Stevens wrote that the Fourth Amendment does not require reasonable, articulable suspicion to administer a dog sniff test during a routine traffic stop. Thus, if police are in an area legally, they can use a drug-sniffing dog so long as it does not prolong the stop.[3] This can even be permissible when no stop occurred to begin with. Such as in State v. Edstrom, which held that a dog sniffing the seams of doorways in an apartment complex hallway was a permissible search under the circumstances.[4]

Another example is when police have a drug-sniffing dog by a residence, such as in Florida v. Jardines. This case involved officers who were investigating an uncorroborated tip with a drug-sniffing dog on a home’s property. The Supreme Court determined that the use of a drug-sniffing dog on the front porch of a home to investigate an unverified tip about marijuana being grown in the residence, was a trespassory invasion and a search under the Fourth Amendment.[5] Thus, the search was unlawful in violation of the Fourth Amendment. This differs from Edstrom, because the Minnesota Supreme Court believes the hallway of an apartment building is not an area with legitimate expectation of privacy under the famous Katz test.[6]

Current State

Edstrom, a Minnesota Supreme Court case, is the latest to make national news involving drug-sniffing dogs. The Supreme Court of the United States has not visited this issue for a few years. In 2015, the Court heard Rodriquez v. United States. This case held, similarly to Cabelles, that lawful seizure of an individual ends when the tasks related to that seizure end.[7] As in the traffic example above, if a police officer stops someone for speeding, they cannot keep prolonging the stop past the typical ticketing process. If they prolong this process in order to obtain a drug sniffing dog, then the opinion by Justice Ginsburg from Rodriquez, deems this an unlawful seizure.[8]

While the facts that derived the opinions in Edstrom, Jardines, and Rodriquez differ, it would appear that the Minnesota Supreme Court is not prepared to give as much deference to individuals claiming Fourth Amendment protections as the current precedent of the U.S. Supreme Court. Specifically, in relation to where police officers can conduct these dog sniffs without violating curtilage, or other Fourth Amendment protections.

Alec Rolain is a law clerk at Ambrose Law Firm, PLLC. He is in his final year at Mitchell Hamline School of Law in St. Paul. Prior to law school, Alec attended St. Mary’s University in Winona where he played baseball and made the MIAC all-sportsmanship team. DWI Lawyer Woodbury; DUI Attorneys Woodbury MN; and Criminal Justice Lawyer Minnesota.

[1]United States v. Place, 462 U.S. 696 (1983).

[2]United States v. Cabelles, 543 U.S. 405 (2005).

[3]Cabelles, 543 U.S. 405 (2005).

[4]State v. Edstrom, 916 N.W.2d 512 (Minn. 2018).

[5]Florida v. Jardines, 133 U.S. 1409 (2013).

[6]We further discussed the Edstrom holding in our blog here: Edstrom Curtilage Blog

[7]Rodriguez v. United States, 135 U.S. 1609 (2015).

[8]Rodriquez, U.S. 135 (2015).

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