Canine Search of Package in Transit Violated Privacy Interest under State Constitution

The use of a canine to sniff a package in transit violated the recipient’s privacy interest because he had a property right in the package protected under the state’s constitution

State v. Barnthouse, 2016 BL 334731, Or., No. SC S063426, 10/6/16

The Oregon Supreme Court found that the interception of a package by police to perform a dog sniff violated a recipient’s privacy interest because he was guaranteed a property interest in the package, even while in transit. The court found that under the state constitution, a citizen has a protected possessory interest in the package through the “stream of mail.” The package that was sent was discovered by police during an examination of suspicious packages with drug canines at the airport. After drugs were discovered in the package, the police went to the owner of the package to ask him to open it, allowing officers to discover illegally shipped marijuana and money.

Several federal circuits and courts have allowed officers to subject a package to a quick canine sniff, but only as long as it did not interfere with the package or its timely delivery. Additionally, police could not remove it from the delivery service or carrier’s custody for extended periods. These courts reasoned that the Fourth Amendment was not implicated as long as the package was not overly aggressive. The Oregon Supreme Court, however, went one step further and found the state constitution to protect the property interests in the package at each stage of delivery.
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https://www.bloomberglaw.com/public/desktop/document/State_v_Barnthouse_No_SC_S063426_2016_BL_334731_Or_Oct_06_2016_Co?1476818368

Furtive Movements at Time of Apprehension Enough to Keep Suspects Cuffed

At police stop for a suspected drug deal, officers were allowed to cuff the suspects as they waited for a canine unit because of possible safety implications by the suspect’s actions around the car

Chase v. State, 2016 BL 269343, Md., No. 85, 8/19/16.

   The Maryland Court of Appeals affirmed a denial for a motion to suppress evidence collected while officer cuffed two suspects for safety reasons after a drug deal sting. When the officers approached the vehicle where the drug deal occurred, they noticed “furtive” movements made by the suspects and feared that they may have had weapons on them or in the vehicle. They were cuffed for approximately two minutes while the arresting officers waited for a canine unit to arrive to search the vehicle.

   The court upheld the trial court’s decision, ruling that the handcuffing of the suspects in this instance did not necessarily transform the detention into an arrest due to the totality of the circumstances. The court took into account the possibility of weapons in the vehicle and the furtive movements and mannerisms of the suspects. The officers, even after performing a frisk of the suspects and finding no weapons were ruled to be justified in handcuffing the suspects because of the fear of weapons in the vehicle.

http://www.bloomberglaw.com/public/document/Chase_v_State_No_85_2016_BL_269343_Md_Aug_19_2016_Court_Opinion.

Prior Criminal History Did Not Justify the Use of a Drug Sniffing Dog During Traffic Stop

Police holding someone during a traffic stop because the driver’s prior criminal history involving drugs did not warrant the use of a drug sniffing canine that led to an eventual arrest

State v. Alvarez, Haw., 2016 BL 211663, No. SCWC-12-0000838, 6/30/16.

    The Hawaii Supreme Court found that officers lacked a reasonable suspicion to call in a drug sniffing canine during a traffic stop, even though the suspect had a prior criminal history and was currently suspected of selling drugs. The court held that the stop was still unconstitutional, even if the canine unit arrived within the time frame of writing and processing the tickets for a seatbelt infraction. Under Rodriguez v. United States, the United States Supreme Court found that there is no Fourth Amendment violation if the drug sniffing canine arrives during the normal time needed for the traffic stop. The Hawaii Supreme Court, however, did not view timeliness as the only requirement for such a search. Under the Hawaii Constitution, any unreasonable invasions of privacy, as well as unreasonable searches and seizures, are forbidden. Within this protection of privacy, the escalation of any investigation that is not supported by any other evidence of criminal activity is also forbidden.

   The court held that for the drug sniffing dog to be used, there needed to be a separate criminal inquiry into possible drug distribution. The evidence, however, was not sufficient to warrant a separate inquiry. The court held that a history of drug use and a five-day old tip on the driver’s criminal activity was not sufficient to warrant reasonable suspicion to allow for an escalated investigation. In the opinion, the court recognized that if the evidence used by police was sufficient for a separate criminal investigation, then “any traffic stop could be improperly utilized to detain individuals based on their previous misconduct.”


http://www.bloomberglaw.com/public/document/State_v_Alvarez_No_SCWC120000838_2016_BL_211663_Haw_June_30_2016_

A Dog's Sniff In A Common Hallway Requires A Warrant

A warrant is required for police to use dogs to sniff in an apartment building's common hallway.

United States v. Whitaker, 2016 BL 113879, 7th Cir., No. 14-3290, 4/12/16

     The Seventh Circuit Court of Appeals ruled that the police violated the Fourth Amendment when they walked a drug-sniffing dog up to a suspect's door in a common hallway of an apartment building and used the dog's "alert" as probable cause to get a search warrant.

     This is the first time that a federal circuit court extended the dog-sniff rule elicited in Florida v. Jardines, 2013 BL 79684 (U.S. 2013) (92 CrL 781, 3/27/13), to include shared hallways in apartment buildings.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Whitaker_No_143290_and_143506_2016_BL_113879_7th_?1463068355

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.

 

United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

http://www.bloomberglaw.com/public/desktop/document/United_States_of_America_Plaintiff__Appellee_v_Democrus_Pernell_B?1451402638