A three-judge panel from the Third Circuit issued an interesting decision on Friday concerning drug-sniffing dogs. I loved the court's introductory paragraph, which describes the issue precisely:
When a narcotics dog’s “alert” leads to the discovery of drugs in an automobile during a lawful traffic stop, the law is settled that its sniffs around the exterior of the car are not deemed to be a search under the Fourth Amendment. What happens when the dog jumps into the car?
The court held that so long as the dog is acting instinctively and without the encouragement of the K-9 officer, a dog's jumping into a vehicle does not violate the Fourth Amendment. In so holding, the Third Circuit explicitly relied on the Tenth Circuit's decision in United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989). The Tenth Circuit reaffirmed Stone just last year, noting: “we have upheld the legality of such a sniff during a lawful detention where, as here, (1) the dog's leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry such as a hatchback or a window, used by the dog.” United States v. Vasquez, 555 F.3d 923, 930 (10th Cir. 2009).
No published Colorado decisions appears to have addressed this precise issue, but as the Third Circuit noted, two other states in the Tenth Circuit -- Kansas and New Mexico -- have. See State v. Freel, 32 P.3d 1219, 1225 (Kan. Ct. App. 2001); State v. Warsaw, 956 P.2d 139, 143 (N.M. App. 1997). In each of those decisions, the court held that the dog-sniff violated the Fourth Amendment because the officers facilitated the dog's leap into the car.