I was driving down to Blacksburg, Va., in December when I saw a set of all-too-familiar red and blue lights flashing behind me. I was being pulled over.
It’d been a year or two since I was last pulled over, so I reached over and opened my glove box to make sure my registration was there. It was. When the officer reached my car, he gave me the familiar “Do you know why I pulled you over?” line.
“No,” I said. For once in my life, I knew I wasn’t being pulled over for speeding, so I was confused about what I’d done wrong.
“Your headlight is out,” the officer said.
Bummer, sure, but not too big of a deal.
I apologized and told him I didn’t realize the light was out. He asked for my license and registration. I opened my glove box, grabbed my registration, and handed it over. That’s when things took a strange turn.
“Why did you reach over to your glove box when I pulled you over?” he asked.
“Excuse me?” I replied, confused by his suddenly investigative tone.
“When I pulled you over ... you reached over towards you glove box and did something,” he replied. “What were you doing?”
I explained to him that I was just making sure my registration was there.
“Why didn’t you wait for me to ask you for it?” he said in an increasingly skeptical voice.
I explained to him – again – that I just wanted to make sure it was in the right place. I insisted I had nothing to hide.
“All right, give me a minute,” he said and walked back to his car.
About five minutes passed, and he approached my car again.
“So you really mean to tell me you were just looking for your registration?” he asked. “Nothing else? Do you have anything illegal in this car?”
I knew where this was going. He thought I was hiding drugs. One simple movement was all it took for me to go from a motorist with a bum headlight to a suspected drug trafficker.
“Truly, that’s all I was doing,” I insisted. “I wish I hadn’t now, but I wasn’t expecting anything like this.”
“Do I have your consent to search this car for drugs?” he asked.
I couldn’t believe it. I said no. Not because I had anything to hide – time would prove I didn’t – but because I knew how long the whole process would take. I still had two hours left to drive and wanted to get home. He asked again. I said no and reiterated my reasons for saying so.
“All right, hang tight,” he said.
15 minutes later, another squad car pulled up. This officer was accompanied by a German Shepherd. They asked me to get out of my car. The officers patted me down on the side of the road to make sure I didn’t have a gun on me. I couldn’t believe how far this had escalated.
The K9 unit officer proceeded to explain to me that they reasonable suspicion – based on my allegedly suspicious grab for my registration – that I might be hiding drugs. Since I refused to consent to a search they brought a dog to sniff around the outside of my car.
I was confused. Since I told them they couldn’t search my car, why were they allowed to search it with a dog? The officers told me that since the dog would not enter my private property, they didn’t need my consent. I apparently couldn’t say no, even though the officers told me the dog would smell any drugs inside my car. My property was being searched without a warrant or probable cause, and I had no power to say no.
The dog sniffed my car for about 20 minutes and, just like I’d promised, found nothing. The whole stop took about an hour. The officer had the nerve to make me wait another 15 minutes while he wrote me a ticket for the blown headlight – but that’s beside the point.
I was fuming the rest of the drive home. How was this legal? I knew about the Fourth Amendment. I knew I had protection from unreasonable searches and seizures. What just happened seemed like the epitome of an unreasonable search, yet I was told by the officer that what they were doing was perfectly legal.
I looked into the issue more. Here’s what I found.
There have been a number Supreme Court cases involving narcotic sniffing police dogs. Let's look first at Florida v. Jardines.
In Florida v. Jardines, a narcotics dog was used to sniff marijuana from the porch of Joelis Jardines’ house. Police officers had no warrant to search Jardines' home, but they argued that they didn’t need one since they weren’t entering the home. The dog smelled marijuana, and Jardines was arrested. He appealed his charges, and his case reached the Supreme Court.
In court, justices ruled 5-4 that the dog’s sniffing qualified as a search under the Fourth Amendment. Accordingly, the search was illegal since searches require both probable cause and a search warrant.
In the majority opinion, Justice Antonin Scalia wrote that although police never entered Jardines' home, they used the dog’s nose as a device to "see" inside the home from the outside.
In a concurring opinion, Justice Elana Kagan likened using a dog’s nose to sniff inside a property to someone using binoculars to look inside a property. Both, she ruled, constitute searches and are therefore illegal.
“A stranger comes to the front door of your home carrying super-high-powered binoculars,” Kagan wrote. “He doesn't knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home's furthest corners. ... Has your 'visitor' trespassed on your property, exceeding the license you have granted to members of the public ... ? Yes, he has. And has he also invaded your 'reasonable expectation of privacy' ... ? Yes, of course, he has done that too. That case is this case in every way that matters.”
It seems that, contrary to what I’d been told by officers, using a dog’s nose to sniff inside property from the outside constitutes a search. But in three other Supreme Court cases, we see a double standard surface.
The Supreme Court has ruled three times that, although a dog sniff constitutes a search in your home, it is not a search when done to your car. Here are excerpts from the majority opinions of the three rulings.
· "... the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." – United States v. Place, 1983
· "The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search." – City of Indianapolis v. Edmund, 2000
· "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." – Illinois v. Cabales, 2005
Strange, isn’t it? Your car is every bit as private of property as your home, yet a different set of rules apply. At your home, a dog sniff constitutes a search. Probable cause needs to be established and a warrant must be issued in order to execute this search. In your car, not only does a dog sniff not constitute a search, but it can be used in order to establish probable cause for further searches. As private property, are cars really that inherently different from homes?
For reasons that the Supreme Court is yet to articulate, the answer is yes.