The Supreme Court of Ohio recently agreed to review a case addressing whether the signal of a drug-sniffing dog that jumped up to a car window during a traffic stop can be used as probable cause to search a car for drugs. Justices Pat DeWine, Joe Deters, and Megan E. Shanahan dissented, indicating they would not have taken up the case.
The issue in State v. Barton centers on whether such a canine sniff constitutes a “search” within the meaning of the Fourth Amendment, particularly when it involves a potential intrusion into an area where a driver retains a reasonable expectation of privacy.
Courts have generally concluded that a dog’s unprompted physical movements – such as jumping toward or partially into a vehicle – are instinctual behaviors, rather than deliberate, police-directed intrusions. Despite this making the dog’s detection of drugs an unintended benefit, both lower courts in Ms. Danielle Barton’s case denied the motion to suppress, determining that this was not an unconstitutional search of the car and rendering the contraband found in Ms. Barton’s vehicle admissible. Both lower courts – the Hamilton County Municipal Court and the First District Court of Appeals – relied on United States Supreme Court cases Caballes and Jacobsen for the “expectation-of-privacy test.” The Court found that, first, there is no legitimate privacy interest when it comes to illicit items, and second, because a canine sniff only discloses the presence of such illicit items, the sniff does not constitute an illegal search. The appellate court also noted that this is supported in state precedent as well, citing Napier, a Ninth District case.
Barton argues that the court should adopt a “common-law-trespass” standard in finding that the dog trespassed into a space protected by the Fourth Amendment. The court, however, determined that because these sniffs were instinctual and lacked intention or the purpose of obtaining information from an officer, they could be distinguished from an unlawful police search. The appellate court cited a large body of precedent to support this view across circuits. At the trial level, both sides conceded that the dog’s jump was instinctual as a matter of fact.
Because both lower courts reached the same conclusion under existing precedent, the Ohio Supreme Court’s decision to hear the case suggests an interest in clarifying or potentially refining the scope of permissible canine sniffs under state and federal constitutional law.
It is notable that after the Ohio Supreme Court accepted review of Barton, the United States Supreme Court, on October 6, denied certiorari of a case with almost identical facts. In Mumford v. Iowa, a police dog inserted its head through an open car window during a traffic stop and subsequently alerted to the presence of narcotics. SCOTUS’s decision could have helped settle the current circuit split on how dog sniffs are handled and whether such intrusions constitute searches under the Fourth Amendment.
The Ohio Supreme Court’s review may thus reflect an anticipation of, or a contribution to, an evolving area of constitutional jurisprudence and a deepening circuit split. A date for review has yet to be scheduled.
Will the Court declare that dog sniffs are free? We shall see.