Drug sniffing dogs – you see them at the airport, the bus station, and on television. They serve an important purpose for law enforcement and the public. That is, they smell drugs when humans cannot. Moreover, the dogs do it in a manner that is not invasive to the people being search. However, there are some rules, like the 4th Amendment to constitution, that restrict how these dogs can be used.
For example, law enforcement can’t just bust down your door without a warrant and take a dog through your house to smell everything. When it comes to your home, the Fourth Amendment to the Unites Constitution was created protect against such unreasonable entries. However, the courts are giving law enforcement more and more “leeway” on how they use man’s best friend to overcome the constitutional hurdles of the Fourth Amendment.
Look for example at a 2010 Arizona Court of Appeals case, State v. Guillen. In Guillen, one of questions asked was: if consent to search a home is valid, when the resident giving consent was unaware of a dog-sniff conducted on her property, without a warrant, before she arrived home. That is, law enforcement went on her property without a warrant, had the dog sniff the garage and the dog smelled something. Then they asked the homeowner to search the house. At the heart of the case is the fact she consented to search.
One could could argue this way: law enforcement violated her fourth amendment rights, used the information they got illegally to help make an arrest that merely appeared legal. After all, would the resident have consented if she had known that a potentially illegal search / entry on her property had just occurred?
The above theory was essentially adopted by the defendant’s attorney in front of the Arizona Court of Appeals. They posited that the initial dog sniff on the property without the owner’s knowledge was illegal police misconduct in the first place. Thus, the later consent was not valid, and the entire search of the home would be illegal.
In general, courts consider the term “Consent” to mean the voluntary, and un-coerced permission of a person which allows a government official to take a specified action without a warrant.
However, the court disagreed with this argument after looking at the chain of events. The Court stated that the relationship between the sniff and the consent was the determining factor. For the consent to be invalid as the defendant’s attorney suggested, the consent must have been caused as a result of police misconduct. The fact that the resident did not know about the dog sniff, and she was not forced to allow police in the home, and she was not forced to allow police in the home, means that the consent was not a result of the dog sniff, and was not invalid on that argument alone.
It appears the court did not address the actual constitutionality of the dog sniff in the driveway. Consequently, the door may be left open to argue the constitutionally of this type search in the future if the facts distinguishable.
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Lawrence Koplow