Police responded to an intrusion alarm at Miller’s home. An officer saw a broken window with an opening large enough for a person to crawl through. The officer called for police service dog Jack to assist with a protective sweep. Miller’s mother arrived with a key to the home. She gave officers the key and consented to entry to check for intruders.
Jack and his handler entered the home and began to search for intruders. In one of the bedrooms, Jack sat and stared at a dresser drawer. Recognizing a positive final response to the odor of contraband, the handler opened the drawer and saw a brick of marijuana. He directed Jack to continue the search for persons.
Jack reached a closet and began to bark excitedly, suggesting to the handler that someone was hiding in the closet. The handler opened the closet door. Jack immediately stuck his nose on one of two large black trash bags, opening the bag. The handler could see marijuana in the bag.
Miller arrived at the home. No intruder was found. Based on their observations, the officers obtained a search warrant for the home. Miller claimed that the discovery of the marijuana in the bag nuzzled open by Jack was unconstitutional, and thus the warrant was improperly granted.
The court noted that "man’s best friend is no stranger to Fourth Amendment jurisprudence. The Supreme Court of the United States has decided several cases involving police dog sniffs that indicate the extent to which police may use these four-legged crime-fighters without running afoul of constitutional safeguards." In this case, the court characterized Jack’s action not as a dog "sniff," but rather a dog "nuzzle." The court held that Jack’s instinctive action, unguided and undirected by the handler, was not a search. The nuzzling brought the marijuana into plain view and it was proper to base the warrant on the officer’s plain view observation. State v. Miller, 766 S.E.2d 289 (N.C. 2014).
For additional information on recent criminal procedure and public safety liability cases, subscribe to Xiphos, a monthly update newsletter service of Lexipol (www.Lexipol.com). Subscriptions are free for public safety personnel and public attorneys. Go to my Xiphos page and fill out the form.