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A dog sniff that led to a man being convicted of possession of methamphetamine was sufficient to establish probable cause to search his truck, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision.
Matthew McKinney was convicted of Level 4 possession of meth, Level 6 unlawful possession of a syringe and Class A driving while suspended after he was pulled over by an Indiana State Police officer on Interstate 65 in Indianapolis.
The officer noticed a rear brake light that had been covered with red tape and saw the vehicle drive across the line that divides the exit ramp from the main road.
He pulled the truck over and identified McKinney as the driver. There was also another passenger.
The officer ran information through dispatch and learned McKinney’s license was suspended and the other passenger’s driving privileges were suspended for life. With neither occupant legally able to drive the truck, the officer knew the vehicle would have to be impounded, and he requested a canine officer for backup.
Before the dog sniffed the vehicle, the officer asked McKinney if there was any contraband in the truck, and McKinney said there wasn’t.
The dog sniffed along the passenger and driver’s sides of the truck and focused on the seam between the door and front quarter panel. The dog then jumped at the seam, which indicated to officers it was searching for the source of an odor.
The officer said the dog attempted to sit — indicating a “final response” — but only did so about halfway because there was slush and snow on the ground.
During a search of the truck, officers found a smoking device with what appeared to be meth residue on it, a syringe, a needle containing an unknown substance, digital scales and other items, including more than 14 grams of meth.
After he was charged, McKinney moved to suppress the evidence found during the search of his truck, which he claimed was conducted without probable cause and therefore violated his rights under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.
The Marion Superior Court denied the motion.
A jury subsequently found McKinney not guilty of a dealing in meth charge but guilty of possession of meth, unlawful possession of a syringe and driving while suspended. He was sentenced to seven years for the meth conviction and concurrent one-year sentences for the other two convictions.
On appeal, McKinney argued that the state failed to establish probable cause that would justify the search of his truck, and that the evidence should have been suppressed.
Because McKinney renewed his objection to the admission of that evidence at trial — which the trial court rejected — the Court of Appeals said it would review the court’s ruling on its admissibility, not the denial of the motion to suppress.
McKinney said the state failed to establish that the dog’s behavior reliably demonstrated it detected the odor of one of the various illicit drugs it was trained to detect and that police therefore didn’t have probable cause to search the vehicle.
The Court of Appeals disagreed, citing testimony from the officer about the dog’s behavior — including quick movement, increased breathing and an attempt to sit. That behavior was sufficient to show the dog detected the presence of drugs, the Court of Appeals ruled.
The officer also testified dogs “don’t technically have to do a final response” — sitting, in this case — to alert to the presence of drugs.
“The fact that Maverick did not fully sit down as his final response is not dispositive,” the opinion says.
Turning to the Indiana Constitution and citing Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the Court of Appeals ruled the search of McKinney’s truck was reasonable under the totality of the circumstances.
“The degree of concern, suspicion, or knowledge that a violation had occurred was strong,” the opinion says. “… The dog sniff, moreover, indicated the presence of illicit drugs inside the truck. McKinney’s arguments to the contrary merely rehash his Fourth Amendment argument that Maverick’s behavior was insufficiently objective to support a finding of probable cause.”
The Court of Appeals also said the degree of intrusion on McKinney was “relatively low.”
Judge Elizabeth Tavitas wrote the opinion. Judges Nancy Vaidik and Peter Foley concurred.
The case is Matthew T. McKinney v. State of Indiana, 22A-CR-2535.
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