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 suddenly 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 and 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 they 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 in 2013 ruled 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 Justice Antonin Scalia, who died in 2016 and who was one of the Supreme Court’s most ardent champions of Fouth 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.”
Following the scent straight into court
The traffic stop by Mountain Home police on a summer night in Idaho in 2019 appeared routine: An officer watched Dorff make an “improper turn” and cross three lanes of traffic, according to court records.
Nero showed up shortly after police made the stop.
The dog and his handler circled the car twice. On the second pass, body-camera footage showed Nero jumped up several times and at one point put his paws on the driver’s side door and window. After police found the evidence of meth in the car because of Nero, they obtained a warrant for Dorff’s motel room and found more drugs.
Don Slavik, executive director of the United States Police Canine Association, said that K-9 dogs sometimes stand on hind legs and put their front legs on a car for balance as they’re chasing a scent.
“Dogs are used to detect odors because of their unique ability to follow a trained odor to its source,” Slavik said. “Once the dog detects the trained odor, it will follow the scent to the source or come as close as possible to it.”
But in a 3-2 decision, Idaho’s Supreme Court ruled that there was a big difference between a dog smelling the air around a vehicle and touching it as it tried to sniff inside. It’s the difference between a person who brushes up against someone else’s purse, the court wrote, and someone who rests their hands on it without consent.
“It is also the difference between a dog’s tail that brushes against the bumper of your vehicle as it walks by − and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its hood, stand on its window or door,” the court wrote.
The Supreme Court will likely decide this fall whether to hear the case.