BOISE – The Idaho Supreme Court has vacated a Mountain Home man’s conviction for felony drug possession and delivery after it ruled that a police drug-sniffing dog trespassed and conducted an illegal search by putting its paws on his vehicle, prompting the search that led to his arrest.
The court issued its decision Monday, with three of the five justices in agreement and two dissenting.
The case centered on the 2019 arrest of Kirby Dorff. According to court documents, the officer said Dorff was stopped by a patrol officer in Mountain Home after Dorff drove across lanes of traffic without using a signal. A second officer arrived with a police K-9 named Nero who was trained to detect illegal drugs.
While Dorff explained to the first officer that he didn’t have a valid driver’s license or proof of insurance in the vehicle, Nero began sniffing around the car. Police body camera footage showed the dog jumped up against the car multiple times, including once when his paws rested on the driver’s side door and window as he sniffed the “upper seams” of the car, officials said.
Police searched Dorff’s vehicle based on the dog “alerting” them to the presence of drugs, its handler said. The officers found a pill bottle, folded papers and a baggie that had a white substance that testing later confirmed was meth. According to the court documents, the vehicle’s passenger told police Dorff had shown him a baggie of meth at the motel room they were sharing. Court filings said that when police searched the room, they found 19 grams of meth and additional drug paraphernalia.
Dorff was charged with felony delivery and possession of a controlled substance and misdemeanor drug paraphernalia possession – charges he argued stemmed from Nero trespassing on his vehicle. Dorff’s attorney submitted a motion to suppress, or exclude, the evidence from the case, which an Ada County District Court judge rejected.
Dorff pleaded guilty on the condition that he could appeal the denial of his motion to suppress evidence. In June 2020, he appealed to the Idaho Supreme Court.
Acting on instincts?
Justice Robyn Brody in the majority opinion wrote that justices weighed whether the dog’s intrusion on the exterior of Dorff’s vehicle constituted trespassing as it would have if the dog had entered the interior of the vehicle.
Ultimately, Brody wrote, she and justices John Stegner and Colleen Zahn agreed that the exterior of the vehicle is protected by the Fourth Amendment, which protects against unlawful searches. They said the drug-sniffing dog “intermeddled” with Dorff’s personal effects by jumping up on the car.
“Intermeddling is the difference between someone who brushes up against your purse while walking by and someone who, without privilege or consent, rests their hand on your purse or puts their fingers into your purse before your eyes or behind your back,” Brody wrote.
According to the majority opinion, it doesn’t matter that the unlawful search included the exterior of Dorff’s property or was performed by a drug-sniffing dog.
“There is no asterisk to the Fourth Amendment excusing the unconstitutional acts of law enforcement when they are accomplished by means of a trained dog,” Brody wrote.
The justices vacated Dorff’s conviction and reversed the Ada County judge’s denial of his motion to suppress evidence. Now the case returns to a district court to proceed with the motion to suppress in place.
Two justices – Greg Moeller and Chief Justice Richard Bevan – wrote dissenting opinions. Moeller disagreed with the idea that Nero placing his paws on Dorff’s vehicle constitutes an illegal search. Moeller said the majority decision returns the court to “murky and uncertain legal waters.”
Bevans in a separate opinion reiterated his view from an earlier case that a drug-sniffing dogs canine instincts aren’t the same as intentional police intrusion.
For justices to equate a drug-sniffing dog “instinctually jumping onto the exterior of a car” to a government agent placing a tracking device on a vehicle “stretches logic beyond the breaking point of reasonableness,” Bevans wrote.