Applying the Trespass Doctrine to K9 Sniffs in Marijuana Traffic Stops

In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court announced that any physical intrusion onto a personal “effect,” such as a vehicle parked on a public street, was a search under the Fourth Amendment when done for the purposes of gathering information.

Most attorneys and judges understand Jones to be the “GPS monitoring” case because the F.B.I. joint task force affixed a tracking device to a vehicle driven by a suspected drug trafficker.  The attorneys at GRL Law know, however, that the reach of Jones and its progeny extend far beyond its facts.  We believe it has incredibly important ramifications for current police practices in a number of different areas, including knock and talk encounters, drone surveillance, garbage rips, etc.

Another police tactic that deserves a second look now is the “free air” sniff by a drug K9 during a traffic stop.  As long as the driver is not unreasonably detained and the K9 team is properly certified, an alert to the odor of marijuana from inside the vehicle currently provides probable cause to search without a warrant.

But what about when the handler taps along the vehicle, particularly at door seams, to focus the K9’s attention to areas where the odor is likely to escape?  Or encouraging the dog to jump up, place its paws on the car frame and stick its nose across the threshold of an open driver’s side window?

Haven’t the handler and K9 both left the public airspace at this point?  Aren’t they now physically intruding on the vehicle?  For the purpose of discovering evidence to be used in a criminal case?  We think so.

Like chalking car tires for parking violations or swabbing door handles for a suspect’s DNA, a K9 deployed in this manner should be considered a search under Jones.  And, because these K9 sniffs are almost universally conducted without a warrant, any marijuana or other controlled substance seized from the vehicle should be suppressed from evidence.  That is usually followed by a dismissal of all charges at the state’s expense.

This is another example of the ways in which the drug defense attorneys at GRL Law attack K9 sniffs and challenge other police tactics in ways not previously countenanced by the criminal defense bar in Iowa.

We care.  We fight.  You win.