COA: Dog sniff requires reasonable suspicion

Analyzing the issue for the first time, the Indiana Court of Appeals today determined reasonable suspicion is needed to conduct a drug-detecting dog sniff of a private residence. Even though the state didn't argue the police had reasonable suspicion, it established the officers relied on the warrant executed after the sniff in good faith.

In Jonathon Hoop v. State of Indiana,  No. 49A02-0807-CR-666, Jonathon Hoop argued his rights under the Fourth Amendment and Article I, Section 11 of the Indiana Constitution were violated when police used a dog to sniff around the front door of his home to detect drugs.

The dog sniff came after a confidential informant told Sgt. Jason Bradbury of the Indianapolis Metropolitan Police Department that Hoop was growing marijuana in his Beech Grove home. A check of public utility records showed Hoop was using more electricity than previous occupants.

Based on the dog's behavior during the drug sniff, Bradbury applied for a search warrant of the home. The searched turned up numerous marijuana plants, bags of marijuana, a digital scale, cash, and firearms. Hoop was charged with Class D felony dealing in marijuana and Class D felony possession of marijuana. His motion to suppress evidence was denied, resulting in this interlocutory appeal.

Hoop relied on United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), to argue the dog sniff is a search within the meaning of the Fourth Amendment. But the 2nd Circuit's ruling that a canine sniff of a residence may constitute an unreasonable search has been criticized by numerous jurisdictions and goes against the United States Supreme Court ruling in U.S. v. Place, 462 U.S. 696 (1983), wrote Judge Melissa May.

As long as an officer is lawfully on the premises, he or she may have a dog sniff the residence without implicating the Fourth Amendment. As such, the police could go to Hoop's front door using the walkway that would ordinarily be used by any visitor. The dog sniff alone was reasonable enough to establish probable cause and validate the warrant under the Fourth Amendment, wrote the judge.

The Court of Appeals hadn't considered the validity of a warrant based on a dog sniff of a residence under the Indiana Constitution. Hoop claimed his case is similar to Litchfield v. State, 824 N.E.2d 356, 359, (Ind. 2005), which required reasonable suspicion to search a trash can; the state countered that a dog sniff only reveals the presence of or absence of contraband and doesn't reveal private details.

"As Litchfield placed overriding weight on the need to restrict arbitrary selection of persons to be searched, and that same concern is present here, we conclude reasonable suspicion is needed to conduct a dog sniff of a private residence," she wrote.

The state failed to address whether the confidential informant's tip and the information about Hoop's power usage established reasonable suspicion, but it argued the officers relied on the warrant in good faith. Because the officers relied on the warrant in good faith, the Court of Appeals didn't decide whether the officers had reasonable suspicion.