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Fourth Amendment Violation Turns on Who Let the Dogs Out

By Robyn Hagan Cain on July 31, 2012 | Last updated on March 21, 2019

When the Baja Men repeatedly asked listeners "who let the dogs out," they probably had no idea that the answer to that question would be critical in determining whether a search violated a suspect's Fourth Amendment rights.

But in the Sixth Circuit Court of Appeals, it is.

David Sharp was sentenced to 30 years in prison after a jury found him guilty of possession with intent to distribute methamphetamine. After Sharp was arrested on an unrelated warrant, the police seized 154 grams of methamphetamine, 10.5 grams of marijuana and drug paraphernalia found inside a shaving kit on the passenger seat of Sharp's car. The police searched the shaving kit after a trained narcotics dog jumped into the car through the driver's window and alerted to the presence of drugs inside the shaving kit.

(Congratulations to the K-9 overachiever, for winning props as the latest FindLaw Top Dog!)

When the dog and his police officer-handler arrived at the scene, the driver's window was down. The handler gave the dog the command to search for drugs, and the dog sniffed the exterior of the vehicle. Then, without formally alerting to the presence of narcotics, the dog jumped through the open driver's window into the car.

Fido made himself at home in the car, checking out the back seat, and then moving back to the front where he alerted to the shaving kit on the front passenger seat.

Sharp moved to suppress the contents of the shaving kit, arguing that the dog's pre-alert window entry and sniff violated his Fourth Amendment rights.

It is well-settled that a dog's sniff around the exterior of a car is not a search under the Fourth Amendment. Here, the Sixth Circuit Court of Appeals concluded that our Top Dog's far more invasive interior sniff was also kosher. The reason? It was resulted from an instinctive jump, not police encouragement.

(In other words, if the cops had "let the dog out," we might be discussing a successful suppression motion right now.)

The Sixth Circuit isn't alone in its reasoning: The Third, Eighth, and Tenth Circuits have all previously ruled that a police dog's instinctive jump through an open point of entry does not violate a suspect's Fourth Amendment Rights as long as the police did not encourage or facilitate the jump.

In Tennessee, where Sharp was arrested, the owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog.

Sharp is going to spend 30 years in jail because a K-9 officer lost control and jumped in the car; that seems like it should qualify as an injury. But for that pesky theory of qualified immunity, Sharp could have a tort claim for this Top Dog's instinctive jump.

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