Friday, July 22, 2011

Jumping into Cars: New Fact Situations, but Courts Continue to Apply Faulty Logic

Every officer patrolling with a narcotics detection dog knows that if the dog jumps through an open window or door of a vehicle during a sweep, the dog’s action does not violate the Fourth Amendment if the officer did not ask the occupants to roll down the window or open the door so that the dog could jump in and the officer did not encourage the dog to jump in during the sweep. (See, e.g., U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989).)

There have been numerous variations on this basic holding in the last 20 years, but three recent cases show that there are always new twists under old law. What happens if the officer asks a passenger to exit the vehicle, the passenger does not close the door after he gets out, the officer begins to close the door but leaves it open, and the dog later jumps through the open door and alerts? Does the officer’s action in beginning to close the door amount to encouragement for the dog to jump inside?

What if a window in the car might have been rolled down by an officer prior to a sweep and the dog stuck his nose through this open window during the sweep but did not alert? Did the dog’s action in sticking his nose through the open window mean that the dog’s later alert outside the vehicle violated the Fourth Amendment? Does it have to be determined who rolled the window down to answer this question? Even if the officer did roll down the window (which was not established in the second case discussed below), was the dog’s action illegal if the officer provided no encouragement?

Finally, if a dog jumps through an open car door and attacks a child in a safety seat, could the officer be liable? Under what circumstances? There was no liability in the third case discussed below, but if the circumstances had been different, there might have been.

Who Left a Car Door Open, and Why?

In U.S. v. Batista, 2011 WL 1636401 (D.Md. 2011), two men driving a Chevrolet Impala on Interstate 95 in Maryland were pulled over for having a burned-out license plate lamp at 1:41 a.m. Several factors led Corporal Armiger to believe the men might be engaged in drug trafficking. There was a strong odor of cologne inside the car. The license the driver handed the officer was wet and smelled of cologne. The car lacked any personal items or luggage. The passenger, Batista, had a New York driver’s license, while the driver, Nunez, had a Florida license. The car was registered to a third individual from New York.

Armiger called for backup. He frisked Nunez and asked him to move to the rear of the vehicle. He asked Nunez where they were going. Nunez said Delaware, but the car had been traveling south, away from Delaware. Batista, questioned separately, said they were driving to Baltimore. Dispatch advised Armiger that Batista was on federal supervised release and was a known member of the Latin King and Queen Nation gang. Armiger brought his dog, Justice, to scan the vehicle.

Nine minutes into the stop, Justice alerted to the odor of narcotics as soon as he approached the vehicle, then hopped in the car. When he exited the car he made another alert. Armiger searched the car and found two packages of heroin in a secret compartment. Batista and Nunez were arrested.

The court first concluded that extending the traffic stop was justified based on facts that properly raised suspicion. The defendants argued that the sniff inside the car was unconstitutional. The court described the facts and their constitutional implications as follows:

“[T]he Defendants contend that the officers ordered Nunez out of the vehicle and left the door open because they intended to ‘facilitate’ a sniff of the interior… [S]tandard police procedure dictates that the occupants of a car must exit and remain outside for the duration of a canine scan. At the time that Corporal Armiger ordered the scan, Nunez was already outside of the vehicle. The video fails to establish whether Batista or Officer Lubacker opened the passenger's side door. The video does show, however, that Officer Lubacker started to close the door but stopped. It is unknown whether he intentionally left the door open or not.

“If Officer Lubacker left the car door open to give Justice a better smell of the inside, that is permissible. If Lubacker left the door open as an invitation to jump inside, that would be impermissible. The Fourth Amendment is offended only if the dog fails to alert outside the car and the officers ‘facilitate’ the dog's entry into the car by letting him in or by leaving a door or window open in hopes that the dog will jump in.

“In the instant case, there are several dispositive facts. First, Corporal Arminger testified that Justice alerted as soon as he approached the car. Thus, probable cause was established before Justice hopped in. Second, from the video-recording, it does not appear that Officer Lubacker left the door open in order to invite Justice to enter. The stop unfolded quickly, and Justice alerted moments after Officer Lubacker stepped around the open door.”

The court distinguished U.S. v. Winningham, 140 F.3d 1328 (10th Cir. 1998), where the officers opened the door of a van themselves and reasonable suspicion had been exhausted before the dog arrived. No other cases were discussed in this context, and the court pronounced the law to be as follows:

“[T]he law allows the police, during a traffic stop, to open a car's windows or doors to afford the dog a better field of scent. This rule might be different if, during a police stop, the driver and the passengers were constitutionally entitled to remain in the sealed car. Such is not the case, however. The police are allowed to require the driver to roll down his window and exit the car. Before the scan begins, the police are entitled to require all of the car's occupants to open their doors and step outside. It would be foolish to require the police to close all of the doors and windows, and wait a time for the wind to blow the escaped air away, before the scan can begin.”

This seems to mean that if a suspect exits a car and does not close a door, an officer is not obligated to close the door before the dog is brought to sniff the car. The court’s statement, previously quoted—“If Lubacker left the door open as an invitation to jump inside, that would be impermissible”—does not provide a practical distinction from leaving the car door open to provide the dog with “a better smell of the inside,” which the court finds permissible. Any officer informed of the distinction will explain that he left the car door open to facilitate the sniff not to allow the dog to enter the vehicle. The dog will naturally go towards the point of greatest concentration of the odor so the two explanations of the officer’s actions are, as far as the dog is concerned, indistinguishable. This is a distinction without a difference and not the kind of logic on which constitutional law should hinge.

A Nose Through an Open Car Window Was Harmless

In U.S. v. Ayala, 2010 WL 2541845 (N.D. Okla. 2010), police conducting surveillance saw a possible drug deal happening at a gas station in Tulsa. Erlin Ayala drove away, after which an officer on patrol, Anthony First, saw the vehicle drift across a lane on I-244 and pulled it over onto the shoulder of the highway. First had been informed that a similar vehicle might have been involved in the drug deal. First smelled strong perfume or air freshener coming from the interior. There were two men in the vehicle and both appeared nervous. First took the driver, Ayala, to his car while he processed the information Ayala gave him. Knowing that a police unit with a drug dog was on call, First requested the assistance of the canine unit. Detective Daryl Johnson and his dog, Max, arrived.

“Johnson testified that he followed his standard practice of starting the dog sniff at the passenger side headlight and walking Max counterclockwise around the vehicle. Due to the high volume of traffic on I-244, Johnson anticipated that he would have to lead Max around the vehicle about four or five times, because traffic tended to distract Max during a sniff.

“During the first walk around the vehicle, Max focused on a seatbelt sticking out of the passenger side door. Max became distracted and began walking around the vehicle a second time. Max focused on the trunk, but again became distracted and continued to walk around the vehicle in a counterclockwise direction. On the third time walking around the vehicle, Max focused on the open driver side window, he arched his neck, and his nose crossed the window threshold. However, he did not alert to the presence of drugs. Instead, Max initiated a clockwise walk around the vehicle and, about 15 to 25 seconds later, stopped at the passenger side door. Max sat down next to the passenger side door, and alerted Johnson that he detected the scent of illegal drugs.”

Johnson told First about the alert and First searched the vehicle, finding methamphetamine in a bag. The occupants of the car were arrested.

Ayala filed a motion to suppress, saying that the police may have rolled down the window to aid the dog during the sniff, something that the government did not clearly rule out as a possibility. The court first determined that there was reasonable suspicion to extend the length of the traffic stop for the purpose of calling for a drug dog. Citing U.S. v. Vazquez, 555 F.33d 923 (10th Cir. 2009), the district court held that if “a drug dog breaches the interior of the vehicle during a sniff, this does not violate the Fourth Amendment if the dog acted instinctually and entered the vehicle due to an act of an occupant, rather than the police officer.” The court noted that in the third walk around the vehicle, despite the drive side window being completely open, Max paid no more attention to it and alerted 15 to 25 seconds later on the opposite side of the vehicle. “The mere fact that Max's nose may have entered the vehicle does not constitute a Fourth Amendment violation, unless defendant can show that police took some action to cause or facilitate the drug dog's entry into the vehicle.”

“Defendant argues that is was unlikely that he would have been driving the window down if it was raining. First testified that he approached the vehicle from the passenger side, and defendant argues that he did not need to roll down the driver side window to speak with First. There is no evidence that Johnson rolled the window down before starting the dog sniff, and First's testimony does not address this issue. First testified that he opened the driver side door to check the vehicle's NADAR sticker, but he did not testify that he rolled down the driver side window. Defendant argues that the government cannot carry its burden to show that a constitutional violation did not occur if the government fails to explain how the window was rolled down. However, the Court will not presume that constitutional error occurred merely because there is no evidence on a particular factual issue. The government has established that First had reasonable suspicion to initiate a traffic stop and extend the traffic stop for a dog sniff. There is no dispute that Max stuck his nose or snout into the driver side window, but this is not a constitutional violation unless the police engaged in some conduct that facilitated Max's partial entry into the vehicle. Without some evidence that police rolled down the driver side window, the Court will not presume that a constitutional violation occurred.

“Even if the Court were to assume that police rolled the driver side window down or directed defendant to roll the window down, the Court finds that this act did not cause Max to alert and was harmless. Max did stick his nose in the driver side window, but Max did not alert at that time. Instead, Max initiated a clockwise walk around the vehicle and focused on a seatbelt sticking out of the passenger side door. This occurred about 15 to 25 seconds after Max stuck his nose into the driver side window of the vehicle, and there is no evidence that Max alerted because of his slight entry into the driver side window. Instead, Johnson's testimony shows that Max initially focused on a seatbelt sticking out of the passenger side door and Max returned to this location to alert Johnson to the presence of drugs in the vehicle. Thus, there is no evidence that Max alerted because the driver side window was rolled down and the Court will not suppress evidence for this reason.”

The motion to suppress was denied.

Potential Liability for a Dog Scratching a Child

In Neal v. Melton, 2011 WL 2559003 (6th Cir. 2011), two deputy sheriffs, riding with a police dog, saw a blue Cadillac that matched the description of a vehicle suspected as being used to deal drugs and called in the license plate. A database check revealed the plate was registered to a Buick, and had expired. The deputies activated their emergency lights and the video camera in the patrol vehicle, after which they saw something thrown from the Cadillac, though this was not visible in the dashboard video.

One of the officers retrieved the dog, Solomon, to conduct a sweep and the dog alerted to the driver side door by sitting. The handler then said he would search the vehicle and returned the dog to the police car, but apparently did not secure it because when the second officer opened the passenger door for the passenger to exit, the dog “trotted toward the Cadillac and entered the now-open front passenger car door.” There was a child in a safety seat in the back of the car and when the dog got close to the child, the mother protested. The handler circled the car to remove the dog, which was in the car for 14 seconds. The driver and passenger, who sued on excessive force and other claims, said that the dog scratched the child when it was in the car.

The search of the vehicle lasted nine minutes and produced no drugs, while the total stop was 22 minutes. The individuals were permitted to reenter their vehicle and depart.

The Sixth Circuit held that the two officers “did not ‘through means intentionally applied’ use Solomon to seize Lexus [the child] or exert force upon her, even though their negligence allowed the dog to come into contact with her.” The circuit court cited Hanson v. City of St. Paul, 2007 WL 4224052 (D.Minn. 2007), which held that a dog biting a third party was not actionable under § 1983 even though the officer intentionally released the dog “because the dispositive inquiry under the Fourth Amendment was not whether the officer intended to release the police dog, but whether he intended to seize the injured party.”

The court found that the continued detention of the vehicle and its occupants required reasonable suspicion, but that there was reasonable suspicion because the vehicle matched the description of a vehicle reportedly tied to criminal activity. Also, the officers believed something had been thrown from the vehicle, which the plaintiffs did not contest. The reasonable suspicion supported the sniff, which produced at least one positive alert, according to the majority. The Sixth Circuit determined that qualified immunity should apply to the actions of the officers.

One judge, concurring in part and dissenting in part argued that it was “not obvious from the videotape that the dog alerted,” meaning that there was a genuine issue of material fact that could not support summary judgment on the issue of whether there was an unreasonable search and seizure.


Dogs trained to detect narcotics or explosives will generally go towards the source of the scent, and jumping through an open window or door will often accomplish this objective, as well as focusing the suspicion of the officers on the scene. It is not a behavior to be uniformly discouraged, though allowing it to happen when a baby is in a car could, under slightly different circumstances than those described in Neal v. Melton lead to substantial liability.

The reference to the dog’s behavior as being instinctual, appearing in Ayala and in Vazquez and other cases, creates a false dichotomy. Police dogs are often trained in agility, which can include teeter totters, ramps, ladders, catwalks, and rings to jump through. Wooden frames may be shaped and painted to look like windows. Additionally, many dogs are routinely trained to sniff the interior of vehicles by going through an open door. Dogs trained in this manner may jump through car windows or enter doors as a result of training, not because of any supposed window-entry instinct. Although it might be argued that officers in the situations described in these cases facilitated the entry of the dogs into the vehicles by adopting training regimens that encourage dogs to go through objects like windows, the threshold question should remain whether on the scene of the stop the officer actively encouraged the entry into the vehicle.

Prosecutors should realize that defense counsel may also begin to make cueing arguments in jumping cases, since active encouragement may not always involve a direct or intentional command. Defense counsel should make sure that defense experts study videos for evidence of cueing dogs to enter cars. Defense counsel should also explore the agility aspects of a dog’s training. In civil cases, such as the third case described above, counsel for plaintiffs should seek the dog’s training records in discovery to explore the extent of the dog’s agility training. Combined with any biting history, this might tip the scales towards the plaintiffs in a civil case.

This blog was written by John Ensminger and L.E. Papet. For the history of jumping cases, see Police and Military Dogs (forthcoming Taylor & Francis/CRC Press).

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