Sixth Circuit Holds That When a Drug Sniffing Dog Instinctively Enters a Car Without Prompting by a Handler, There is No Fourth Amendment Violation

David Sharp was arrested pursuant to a warrant for engaging in telephone harassment.  At the scene of his arrest, a drug sniffing dog, Belu, smelled drugs and instinctively jumped into the open window of David Sharp’s car, revealing the presence of marijuana and methamphetamines.  There was no Fourth Amendment violation in Belu’s entry because it was based on instinct and not police misconduct or prompting. 

While on patrol on March 21, 2009, Assistant Chief of Police Greg Woods of the Lake City, Tennessee Police Department recognized David W. Sharp, an individual with an arrest warrant related to charges of telephone harassment.  Woods contacted Officer Mike Nations and Deputy Jonathan Acker of the Anderson County Police Department, who was working with his trained canine, Belu, and asked them to aid in arresting Sharp while he obtained a copy of the warrant.  Officer Nations responded immediately, while Deputy Acker indicated that he would join but that he was approximately ten to fifteen minutes away. 

Per Assistant Chief Woods’ directions, Officer Nations waited near the location where Sharp was spotted while Woods traveled to the police department to obtain a copy of the warrant.  Assistant Chief Woods retrieved a copy of the warrant, and joined Officer Nations near Sharp’s last known position.  They parked with their cars facing opposite directions at the intersection of Main Street and Sharpe Drive, hoping to see Sharp.  After a brief wait, they spotted Sharp driving eastbound on Sharpe Drive.  Officer Nations followed Sharp until he parked in a private driveway on Wyoming Lane.  Officer Nations at no time activated his lights or sirens, but pulled into the driveway next to Sharp’s car.

Officer Nations greeted Sharp through an open car window, informed Sharp of the warrant for his arrest, and asked him to step out of the vehicle so that he could be placed under arrest.  Sharp complied and was handcuffed.  Officer Nations then requested permission to conduct a search of the car, but Sharp refused.  Assistant Chief Woods arrived at the scene around this time, and Deputy Acker and Belu joined sometime between ten and thirty minutes later. 

Under Deputy Acker’s guidance, Belu conducted a sniff test of the vehicle’s exterior.  Then, without formally alerting to the presence of narcotics, Belu bounced once and then, without prompting from a law enforcement officer, jumped into the open window of Sharp’s vehicle and alerted to the presence of narcotics.  At that point, Deputy Acker gave Belu the command “show me,” asking that the dog identify the location of the narcotics.  Belu poked a shaving tote bag in the front passenger seat.  The officers opened the tote and found approximately 154 grams of methamphetamine hydrochloride, 10.5 grams of marijuana, and drug paraphernalia.

At trial before the United States District Court for the Eastern District of Tenneessee, Sharp moved to suppress the drug evidence, arguing that his vehicle had been searched illegally.  His suppression motion was denied, and a jury convicted Sharp of possession with intent to distribute 50 or more grams of methamphetamine.  He was sentenced to ten years imprisonment. 

On appeal to the United States Court of Appeals for the Sixth Circuit, Sharp again argued that his vehicle was illegally searched when Belu entered and sniffed.  The Sixth Circuit did not find his argument compelling and upheld his conviction. 

The court of appeals explained that “[i]t is well-established that ‘a canine sniff is not a search within the meaning of the Fourth Amendment,’ but ‘the canine team must lawfully be present at the location’ where the sniff occurs.”  United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998).  Thus, while a dog sniff is not a search in itself, law enforcement officers may not engage in misconduct to allow a dog to conduct a sniff by, for instance, opening the door to a home where the police may not lawfully enter in order to allow a dog to enter and sniff.  However, when a dog acting on its own instinct, without any direction by law enforcement officers and without any police misconduct, jumps into an open window because it was searching for and smelled drugs, the court of appeals held that no Fourth Amendment violation occurred. 

The court of appeals did warn, however, that if law enforcement officers train dogs to jump into open windows or engage in similar activities in order to try and circumvent the Fourth Amendment, it would amount to police misconduct and result in a constitutional violation. 

Since the discovery of drugs in Sharp’s vehicle did not violate the Fourth Amendment, his conviction was upheld. 

You can read this case, United States v. Sharp, at http://www.ca6.uscourts.gov/opinions.pdf/12a0232p-06.pdf.