Friday, August 26, 2011

Is the Bed of a Pickup as Private as the Inside of a Car? Probably, but the Barrier is Imaginary and More Easily Crossed

During a traffic stop in Marysville, California, on May 14, 2009, a Marysville Police Department reserve officer, Matthew Minton, pulled over a pickup because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. The officer saw that the driver, Robin Briggs, had glassy eyes and might be intoxicated. Returning to his patrol car, the officer radioed for assistance from Officer Christopher Miller who “was more familiar with driving under the influence investigations and worked with a narcotics detection dog.” Miller arrived with his dog about two minutes into the initial stop.

Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.


Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:

“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”

Sniff and Searches

At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:

“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”

The description indicates that Miller was an experienced handler using good practices.

Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:

“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”

The policy also indicates good practices on the part of the police department.

Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.

The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”


The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.

Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.

As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:

“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”

Training and Certification

The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:

“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”

Scope of the Sniff

The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:

“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”

The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.

Plain-Sniff Doctrine

Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.

This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.


The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.

The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.

This blog was written by John Ensminger and L.E. Papet.

People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).

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