K-9 Officer Sticks Nose in Suspect's Business, Court OKs Search - U.S. Tenth Circuit
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

K-9 Officer Sticks Nose in Suspect's Business, Court OKs Search

We haven't named a FindLaw Pooch of the Week since K-9 Officer Marko nabbed Missouri drug runner Claude X in August, so we're delighted to announce that we finally have a new winner: Tulsa K-9 Officer Max.

In 2009, Max alerted his human counterparts to a brown paper bag containing methamphetamine wrapped in cellophane in Erlin Ayala's car. Ayala was later convicted for possession with intent to distribute a mixture or substance containing methamphetamine. He appealed, challenging the search.

This week, the Tenth Circuit Court of Appeals ruled that the search was valid.

Ayala argued that the search should be suppressed because Tulsa police officers at the scene rolled down his car window, and Max only alerted the officers after sticking his nose through the open window.

Would Max have discovered the drugs if the window had been rolled up? Maybe not.

Upon arrival at the scene, Max focused on the lower seam of Ayala's car door, as well as the seat belt which was sticking of the car, but Max did not alert. After several more loops around the car, Max stood on his back two legs and stuck his nose up in the driver's side window to the window area and looked to be focusing on something, before becoming distracted by traffic. (It's okay, Max. That happens to us, too.)

Ayala's window was fully open, and as Max's nose went "across the line of the window;" Ayala contends that was the illegal search point of no return. Max then proceeded clockwise, stopping 15 or 25 seconds later at the passenger-side door, where he focused again on the window and then again on the seat belt before alerting the officers to the odor of narcotics.

Ayala theorized that he wouldn't have left the driver's window down because it was raining when he was stopped, and the officers spoke to him through the passenger-side window. The officers "provided no explanation for the window being down" and they never explicitly denied that they rolled it down.

A positive alert by a certified drug dog generally provides probable cause for officers to search a vehicle. Officers may not, however, rely on a dog's alert if they open part of the vehicle so the dog can enter, or if they encourage the dog to enter. Here, the Tenth Circuit Court of Appeals found that the evidence from the suppression hearing indicated that Ayala and his passenger were responsible for the open window, and affirmed the search.

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