by Douglas Ankney

The Supreme Court of Idaho rejected the “instinctive entry rule” as an exception to the warrant requirement where a drug-sniffing dog breached the interior of a vehicle and the law enforcement officer did not otherwise have probable cause for the search, and thus, the Court reversed the denial of the defendant’s suppression motion.

Idaho State Police Corporal Tyler Scheierman conducted a traffic stop on Interstate 86 after Jacob Steele Randall failed to properly signal a lane change. Based on Randall’s alleged suspicious behavior, Scheierman suspected Randall of transporting drugs. Scheierman asked for, and received, permission from Randall to have a drug-detection dog conduct a sniff of the exterior of Randall’s vehicle.

Scheierman’s dashboard video showed the dog (“Bingo”) move rapidly ahead of Scheierman toward the driver’s side window that had been left partially open. Bingo immediately leapt into the car, proceeded to the backseat, and alerted to the presence of narcotics. Bingo exited the car and sniffed the exterior of the vehicle, alerting at the trunk. Scheierman then conducted a warrantless search of the car and found approximately 65 pounds of marijuana in the trunk.

Randall was charged with trafficking in marijuana and moved to suppress the evidence. He argued, inter alia, that his Fourth Amendment rights were violated when Bingo entered his car before probable cause was established. The district court denied the motion. Citing State v. Naranjo, 359 P.3d 1055 (Idaho Ct. App. 2015), along with case law from multiple federal courts, the district court concluded that Bingo’s “instinctive entry” into Randall’s car was not a search within the meaning of the Fourth Amendment. Randall entered a plea of guilty conditioned on his right to appeal the denial of his suppression motion.

The Court observed that the Fourth Amendment protects citizens against unreasonable searches and seizures. A stop of a motor vehicle by law enforcement implicates Fourth Amendment protections. Delaware v. Prouse, 440 U.S. 648 (1979). And a warrantless search is presumed unreasonable unless it falls within a recognized exception to the warrant requirement. State v. Anderson, 302 P.3d 328 (Idaho 2012). Under the automobile exception, police are permitted to conduct a warrantless search of a vehicle if they have probable cause to believe that the vehicle contains contraband or evidence of a crime. Id.

Probable cause for a warrantless search of a vehicle’s interior can be established solely via a reliable drug dog’s alert on the exterior of a vehicle. Id. Critically, the U.S. Supreme Court has ruled that a drug dog’s sniff of the exterior of a vehicle does not require a warrant because it is not a “search” for Fourth Amendment purposes. Illinois v. Caballes, 543 U.S. 405 (2005). The Caballes Court explained that the use of a well-trained drug-detection dog (one that doesn’t expose noncontraband items) on the exterior of a vehicle doesn’t infringe upon any legitimate privacy interest because such use of a dog discloses only the presence of a contraband item (drugs) and thus doesn’t compromise any legitimate privacy interest.

However, in Jones v. United States, 565 U.S. 400 (2012), the Supreme Court of the United States (“SCOTUS”) held that the Fourth Amendment applied where law enforcement “physically occupied” a vehicle “for the purpose of obtaining information” because the Fourth Amendment protects property interests in addition to privacy interests. In Jones, the Government had attached a GPS device to the defendant’s vehicle. The Government argued that it was not a Fourth Amendment search because no one has a privacy right to the undercarriage of a vehicle traveling on public roadways. But SCOTUS explained that the Fourth Amendment protects property against physical trespass by the government upon “persons, houses, papers, and effects.” Jones. A vehicle is an “effect.” Id. That is, Jones clarified that Fourth Amendment analysis includes both an expectation of privacy, as articulated in Katz v. United States, 389 U.S. 347 (1967), as well as physical trespass inquiry. The Jones Court instructed that a physical trespass for the purpose of looking for information constitutes a search under the Fourth Amendment.

Then in Florida v. Jardines, 569 U.S. 1 (2013), officers led a drug dog onto the curtilage of Jardines’ home without consent, a warrant, or exigent circumstances, and the dog promptly alerted to the presence of narcotics. Based on the alert, the officers obtained a warrant, and a subsequent search revealed marijuana plants. Jardines moved to suppress the evidence. In response, the Government argued, citing Caballes, that since an “investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest,” then no search prior to the warrant had occurred, and the evidence should not be suppressed.

The Jardines Court, citing Jones, opined that “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.” Because “the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence[,]” nothing more was needed to establish that a search had occurred and that suppression was warranted, SCOTUS ruled.

The Idaho Supreme Court summed up the current state of the law on this topic as follows: “[t]hough the Supreme Court has not directly addressed the question, Jones and Jardines make clear that a drug dog’s trespass into a car during an exterior sniff converts what would be a non-search under Caballes into a search.” In the instant case, Bingo trespassed onto Randall’s property without a warrant, consent, or probable cause. It was a simple matter to “keep easy cases easy,” according to the Court.

However, Naranjo added a wrinkle to the analysis. In Naranjo, a drug dog alerted to the presence of narcotics after momentarily putting its nose through a vehicle window left open by the defendant. Relying on several federal cases (see opinion for citations), the Idaho Court of Appeals held that a dog’s independent actions do not implicate the Fourth Amendment; consequently, the determinative consideration turned upon whether the dog’s entrance was “facilitated or encouraged” by officers. Naranjo. Because the trial court found that the dog’s entry was instinctive rather than encouraged, the Court of Appeals held that no Fourth Amendment violation occurred.

The Idaho Supreme Court rejected the “instinctive entry rule.” The Court stated that such analysis inappropriately switches the inquiry from determining whether probable cause existed to support a warrantless search under the automobile exception to trial courts trying to determine if the dog acted instinctively or was encouraged. The Court explained that although “dog sniffs have special status within the flexible boundaries of Katz’s reasonable expectation of privacy test, [ ] the trespassory test of Jones affords dog sniffs no special treatment.”

Continuing with the theme of keeping things easy, the Court reiterated that the two-prong trespassory test simply asks whether (1) the government trespassed (2) for the purpose of obtaining information. If the answer is “yes” to both prongs, a warrantless search violates the Fourth Amendment. Bingo undoubtedly trespassed for the purpose of identifying drugs. Thus, the Court ruled that Bingo’s interior search of Randall’s car violated the Fourth Amendment, and the district court erred in denying the motion to suppress.  

Accordingly, the Court reversed the district court’s denial of Randall’s motion to suppress and vacated his conviction. See: State v. Randall, 496 P.3d 844 (Idaho 2021).

Editor’s note: The Court notes that only four U.S. Courts of Appeals (Third, Sixth, Eighth, and Tenth) have clearly adopted the instinctive entry rule. United States v. Sharp, 689 F.3d 616 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367 (8th Cir. 2007); United States v. Stone, 866 F.2d 359 (10th Cir. 1989). However, the Court points out that three of the circuits adopted the rule prior to the U.S. Supreme Court’s clarification of the continued existence of the trespassory test post-Katz in Jones that the Fourth Amendment safeguards property rights as well as reasonable expectations of privacy. And the Sixth Circuit issued its opinion only months after Jones, but there’s no indication in the opinion that Jones was considered in reaching its conclusion. Clearly, the Court questions whether continued adherence to the rule by those circuits remains viable in light of Jones. Additionally, in surveying where the states stand on the issue, the Court states that only two state appellate courts outside of Idaho have adopted the rule in published opinions after Jones. See State v. Miller, 766 S.E.2d 289 (N.C. 2014); People v. Canizalez-Cardena, 979 N.E.2d 1014 (Ill. App. Ct. 2012).

The Court observes that its duty is not to follow judicial trends, but the lack of acceptance of the rule by other courts across the country likely solidifies its conviction that “the instinctive entry rule [ ] cannot be reconciled with the Fourth Amendment.”

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