dog sniffs

Ever since I read Kyllo, I wondered what would happen if an officer brought a dog up to the door of house -- or a motel room -- in order to see if the dog would alert??

But I get ahead of myself.

The Arizona Court of Appeals recently ruled in a very interesting case that having a dog smell a house is unconstitutional under the Arizona Constitution.

Admittedly, I haven't read the whole case, so I may (getting ahead of myself again and) be back editing this blog -- but for now I felt like blogging about this issue.

The reason for my curiosity is that I have asked a lot of people -- since Kyllo -- who keep up on "dog law" -- you'd be amazed how much law there is on dogs -- and virtually all of them said that courts had ruled (and will rule) that there was / is no reasonable expectation of privacy / so no "search" -- when having dogs smell the doorways of homes or motel rooms.

I always felt that the United States Supreme Court would rule that it was a "search" because of Kyllo.

So now I'm back to Kyllo -- let me give you a brief explanation of Kyllo.

In Kyllo, officers conduct thermal imaging of a house and determined that more heat was being emitted from the home than normal. This information asssisted them in getting a warant for the home.

Virtually every court in the country had ruled prior to Kyllo that heat emitting from a house is no different from air around a suit case. If a dog can sniff the air around a suit case, why can't a thermal imager determine what the air is like around a home.

The USSC disagreed, basically deciding that the home has higher expectations of privacy than the suit case. Therefore they held that thermal imaging was a "search" -- and therfore required a search theory to support it. Since there was none, the evidence was suppressed.

Now fast forward to State v Guillen, the case just decided by the Arizona Court of Appeals.

That court held that whether the USSC rules that such sniffs are constitutional, or not, under the 4th Amendment, Arizona has held previously (in State v Ault) that homes are to be protected to a greater degree by the Arizona Constitution than the USSC protects homes under the 4th Amendment. So the evidence smelled in the home was suppressed.

Frankly, I predict that if, and when, the USSC gets a case like this, it will suppress the evidence too.

A more interesting case is -- what about having a dog sniff the outside of a motel door? I frankly don't know which way the USSC or the AZ courts would go on that one.

Two caveats --

1. The Arizona Supreme Court may well take this case to rule on it. There are a number of reasons that court might uphold the ruling of the Appeals Court -- or reverse it.

2. I haven't finished totally reading the case carefully. I might have some changes here.

Stay tuned.

Best -

DA

Entering Premises -- Exigency Theory

Question -- I think I am over cautious on destruction of evidence cases. Let’s say an officer goes to a house and knocks on the door to inquire about something. The homeowner opens the door and the officer sees a pot plant inside the house. The officer points out the plant and the homeowner acknowledges its existence. The homeowner will not consent to entry, does not shut the door and does not make any move toward the plant to destroy it. It seems crazy to lock down the place from the outside and have an officer post at that front door for a couple hours while we get a warrant, but there is not immediate destruction of crime related evidence either. I am not comfortable letting the homeowner just walk around the house. Can we enter here to just have the homeowner get out while we get the warrant, but then once they are out and we have PC have we entered on PC… Or, I looked at McArthur, should we enter and just follow them around?

Answer -- In the above circumstance officers may enter under the exigency doctrine which provides that officers must be able to enter to keep the resident(s) from destroying the evidence before a warrant can be obtained.

The rule works as follows -- the officers obtain probable cause to believe there is crime-related evidence in a home after knocking on the door and a resident answers it. The exigency is created by the fact the evidence will be gone by the time the officers get a warrant.

Normally, once the premises have been secured, so that no evidence can be destroyed, officers should obtain a warrant for any other evidence in the house. It is best under these circumstances, where possible, to get everyone out of the house -- and seize the house from the outside at that point.

In very close cases where officers have probable cause -- but might be close on proving that they are faced with exigent circumstances -- officers should be careful to fall under the protection of the "independent source" doctrine.

An example here might be -- officers stop a car leaving a house where they have probable cause to believe that drugs are being sold. During the stop, one of the occupants in the suspect car begins talking on his cell phone. Officers do not know who he is talking to but think he might be calling the drug house.

Although the officers have probable cause, the exigency here is a close call. In such circumstances some officers should secure the house, while other officers obtain a warrant. The officers in the two groups must remain separate and not talk to each other. Then when the warrant is executed, the theory is changed from exigency to warrant. The evidence is in fact admitted under the warrant theory. See UNITED STATES V SEGURA on this doctrine.

Finally, some defense attorneys have gotten evidence suppressed under the following circumstances. Officers with probable cause to believe drugs are in a house knock on the door. The resident answers. The officers ask for consent to enter. The resident refuses. Because the resident will destroy the evidence before the officers can get a warrant, the offiecers enter. Later, at the suppression hearing the defense attorney argues that officers "created their own exigency" by not first obtaining a warrant. Many courts rule in such circumstances that the evidence must be suppressed.

Best --

DA