The problem for Nero the police dog began when he put his paws on the door of a car that had been pulled over after the driver swerved across three lanes.
By all accounts, the Belgian Malinois did his job, sniffing out a pill bottle and a plastic bag that contained meth residue – evidence that ultimately allowed police in Idaho to get a warrant and charge the driver, Kirby Dorff, with felony drug possession.
But the paws Nero placed on the driver side door as he jumped up to get a better sniff have opened a constitutional question that has now reached the Supreme Court: whether the dog’s mere touching of the car violated the Fourth Amendment’s prohibition on “unreasonable searches.”
Idaho’s top court concluded in March that Nero’s exuberance amounted to a warrantless search, so it tossed Dorff’s conviction.
The case is one of several to arrive at the Supreme Court this year testing the power of law enforcement under the Fourth Amendment when officers approach vehicles. Another case deals with an officer who spotted a joint under a driver’s seat after the car door was left open. A third challenges San Diego’s practice of chalking tires for parking enforcement.
The Supreme Court ruled in 2013 that Miami-Dade police violated the Fourth Amendment when they brought a police dog past the home of a man suspected of growing marijuana. In another case that year, a majority ruled that a Florida police officer’s use of a drug-sniffing dog to search a truck during a routine traffic stop was fine.
Four justices involved in those cases have since left the court, including Antonin Scalia, who died in 2016 and who was one of the Supreme Court’s most ardent champions of the Fourth Amendment.
“I don’t know where the court – without Scalia − would come out on those cases,” said Catherine Grosso, a law professor at Michigan State University. “But they’re important cases for us to understand the bounds on the regulation of police investigation under the Fourth Amendment.”
I know from time to time, we discuss SCOTUS and 4th Amendment related matters here in the forum. With the upcoming SCOTUS school year schedule coming back into session soon, end of the month, here are three cases in the article (a LE dog, chalking tires, and an open car door) that could impact those who visit this forum once SCOTUS decides on them and their relation to the 4th Amendment (Search and Seizure of the US Constitution) while settling split circuit decisions: