As every dog lover knows, they are happy, playful creatures.  Their tales wag. They may drool and lick.  And sometimes, they jump into places they shouldn’t, like the interior of a car through an open driver side window in the midst of sniffing for drugs while under the control of their police handler.  It can happen, as Judy Tenuta might say.

And so, in United States v. Sharp, the 6th Circuit joins the third, eighth and tenth in holding that dogs will be dogs, thus removing their playful leap into a vehicle not a search under the Fourth Amendment.

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement.

This follows distinctions made by others courts:

The Tenth Circuit was the first court to conclude that even though a drug detection dog jumped into a car through an open hatchback, the “dog’s instinctive actions d[o] not violate the Fourth Amendment” because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car. Stone, 866 F.2d at 364. In contrast, a dog sniff from the inside of a vehicle becomes a search that violates the Fourth Amendment when “the officers themselves opened the door” and “facilitate[d] a dog sniff of the van’s interior.” United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998).

The line drawn was some affirmative act by police to facilitate the dog’s entry into the car, whereas here, the window just happened to be open (though that may have been because the defendant opened it when the police first approached his car, and was never given an opportunity to close it before being removed from the car) and the dog just happened to decide to jump in. Dogs. Sheesh.

It makes for a nice, bright line test, and doesn’t everybody love a bright line test almost as much as they love dogs?  Yet, there’s something remarkably unfulfilling about where the line’s been drawn.

For example, the dog has a handler, a canine officer who lives with, loves and, theoretically trains this dog.  Normally, the dog is supposed to be under the handler’s control, whether by tether or Vulcan mind meld, as is asserted when handlers explain how they know precisely why a dog has drooled on an object. 

Of course, the dogs themselves are highly trained machines, who can be trusted to behave with sufficient precision that the lives of humans are dependent on their “alert,” whatever that might mean (see Vulcan mind meld, above). It’s one thing to be frisky when they’re playing with the kids, but on the job, it’s another matter. The adequacy of their training is one of the foundational underpinnings of their acceptability as a trigger of probable cause.  And yet they aren’t trained to not go where the handler doesn’t want them to go? 

And finally, even if the cute doggy leaps unexpectedly into the car through a window open by no fault of police, was there some impediment to having the handler get the cute doggy out of the car?  Perhaps a stern “get the heck out of the car, Fido,” would do.  If not, maybe actual physical intervention.  But since it was well known that the dog had no place sniffing within the vehicle, was the handler incapable of getting the dog out?  Was the handler obliged to remove the dog from a place he had no right to be? Or does kismet dictate?

This suggests that there is a very real element of human intervention in the cute doggy’s actions. While the handler may not have facilitated his entry into the vehicle, an assertion which isn’t as clear to me as it is to the court, his failure to stop his dog from leaping through the window, or remove the dog from the car, is certainly a volitional act on the part of the police. 

But then, if the only purpose of suppression is to prevent police misconduct (as opposed to create a duty by police not to allow fortuitous entry to happen by their very own doggy), then why let the criminal go free because the dog was frisky?

And as long as we’re talking about dogs, Penn State lawprof  Erica Goldberg makes a very good point in her law review article, Getting Beyond Intuition in the Probable Cause Inquiry . 

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability of such practices can and should be quantified, but the vagueness of the probable cause standard renders it impossible for judges to determine which error rates are inconsistent with probable cause.

Unlike cops, who by definition aren’t susceptible to either empirical analysis or rational thought, drug sniffing dogs are peculiarly easy to quantify.  Even the cops know it.  While it may be fine with the Supremes to cling to  Brinegar rather than give words, like probable, their accepted meaning, the vagaries of human rhetoric offers no excuse for the failure to quantify that which demands it. 

Or in the alternative, who cares if a drug sniffing dog is right only 12% of the time if he’s cute?

And you wonder why he’s laughing?

H/T Jonathan Adler at  Volokh Conspiracy