Was a police dog a good boy?
That’s what the Supreme Court has been asked to decide in a case accusing an Idaho police dog of violating the US Constitution.
The nine justices will likely decide in the fall whether to hear the Mountain Home Police Department’s appeal of a lower court ruling that found their K-9, a Belgian Malinois named Nero, improperly placed its paws on the car of a driver pulled over for swerving in summer 2019, USA Today reported.
Officers claimed the pooch was “alerting” them to the presence of drugs inside the vehicle – and found a pill bottle and plastic bag containing methamphetamine residue.
This allowed them to obtain a warrant and search driver Kirby Dorff’s motel room, where they allegedly found 19 more grams of methamphetamine and drug paraphernalia – and arrested him on felony drug possession charges.
Dorff was later convicted, but appealed claiming the police dog had trespassed on his vehicle – in violation of the Fourth Amendment protecting against unreasonable searches and seizures by the government.
The Idaho Supreme Court ultimately ruled in his favor, finding Nero’s actions amounted to a warrantless search, and Dorff’s conviction was overturned.
Police had argued that Dorff did not have a valid driver’s license when he was stopped after making an “improper turn” and crossing three lanes of traffic, according to local outlet KTVB.
Nero and his handler then approached and circled the car three times, and on the second pass, body-camera footage showed the pooch jumping up several times. Then on the third pass, Nero planted his front paws on the driver’s side door and window, the outlet reported.
Don Slavik, the executive director of the United States Police Canine Association, argued that K-9s will sometimes stand on their hind legs on a car for balance as they are chasing a scent.
“Dogs are used to detect odors because of their unique ability to follow a trained odor to its source,” he told USA Today. “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 March 2023, the Idaho’s high court ruled 3-2 in Dorff’s favor, with the majority finding there was a difference between a dog smelling the air around the vehicle and touching it as it tries to sniff inside -comparing it to the difference between someone brushing up against a stranger’s purse and someone who rests their hands on it without consent.
“It is also the difference between a dog’s tail that brushes up 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 majority opinion reads.
Justice Gregory Moeller, however, wrote in a dissenting opinion that he could not agree “that an unreasonable search or a physical intrusion occurred because Nero’s paws briefly touched the exterior of Dorff’s vehicle.”
Chief Justice Richard Bevan also argued in his own dissenting opinion, “reasonableness… requires us to consider the degree of government intrusion, not to simply suppress all evidence where any intrusion occurred.”
He wrote that the decision “converts” the analysis of the Fourth Amendment into a “liability system,” because he believes the officer’s intent of handling the dog and the extent of how the K-9 intruded are irrelevant.
It is unclear what the US Supreme Court may decide in this case, should it choose to hear it.
The high 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.
But in another case that year, a majority of justices ruled that another Florida police officer’s use of a drug-sniffing dog to search a trunk during a routine traffic stop was constitutional.
The Mountain Home Police Department declined to comment on pending litigation.