United States v. Sharp

• Decision Date: 27 July 2012
• Docket Number: No. 10–6127.,10–6127.
• Citation: 689 F.3d 616
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David W. SHARP, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

689 F.3d 616

UNITED STATES of America, Plaintiff–Appellee,

v.David W. SHARP, Defendant–Appellant.

No. 10–6127.

United States Court of Appeals,Sixth Circuit.

Argued: March 1, 2012.

Decided and Filed: July 27, 2012.

ARGUED:Derek E. Diaz, Hahn, Loeser & Parks LLP, Cleveland, Ohio, for Appellant. Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Derek E. Diaz, Hahn, Loeser & Parks LLP, Cleveland, Ohio, for Appellant. Luke A. McLaurin, Tracy L. Stone, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.^*

OPINION

KAREN K. CALDWELL, District Judge.

It is well-settled that a dog's sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court's denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine's jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. Therefore, we AFFIRM.

I. BACKGROUND

David W. Sharp was sentenced to 360 months in prison after a jury found him guilty of possession with intent to distribute 50 or more grams of methamphetamine. After Sharp was arrested on an unrelated warrant, the police seized 154 grams of methamphetamine, 10.5 grams of marijuana and drug paraphernalia found inside a shaving kit on the passenger seat of Sharp's car. The police searched the shaving kit after a trained narcotics detection canine jumped into the car through the driver's window and alerted to the presence of drugs inside the shaving kit.

When the dog and his police officer-handler arrived at the scene, the driver's window was down. The handler gave the dog the command to search for drugs, and the dog sniffed the exterior of the vehicle, starting at the front passenger's side headlight. The dog moved along the front of the car toward the driver's side of the vehicle. The dog passed the driver's door, went halfway down the rear driver's side door, stopped, turned his head back towards the driver's door and walked to it. Then, without formally alerting to the presence of narcotics, the dog bounced once and jumped through the open driver's window into the car. After jumping through the window, the dog went into the back seat, then back to the front and looked up or alerted on the front passenger seat. The handler asked the dog to “show me,” and with his nose, the dog poked the shaving kit on the front passenger seat.

Sharp initially moved to suppress the seized evidence on two grounds. First, Sharp argued that the police physically searched his car prior to the arrival of the narcotics detection canine. Second, Sharp argued that the dog sniff was conducted improperly. After an evidentiary hearing, the magistrate judge rejected Defendant's arguments and recommended that the motion be denied. Defendant objected only to the magistrate judge's conclusion that the police did not search his car prior to the narcotics dog's arrival. Defendant did not object to the magistrate judge's recommendation regarding the dog's conduct. The district court adopted the magistrate judge's report and recommendation.

Defendant appeals the denial of his motion to suppress arguing that the dog's jump and sniff inside the car was a search in violation of the Fourth Amendment.

II. ANALYSIS

This appeal raises two issues. First, Sharp argues that he did not waive his right to appeal the lawfulness of the dog sniff even though he did not object to the magistrate judge's report and recommendation on that issue. Next, Defendant argues that the dog's jump through an open window and sniff inside his car was a search that violated the Fourth Amendment.

A.

The United States argues that Sharp waived his right to appeal the lawfulness of the dog sniff because he did not object to the magistrate judge's report and recommendation on that ground. Defendant argues that his objection to the dog sniff has been forfeited, not waived, and thus may be reviewed for plain error because he objected to the magistrate judge's report even though he failed to raise a specific objection to the dog sniff. Similar to issues of procedural default in habeas petitions, “[w]e cut to the merits here, since the [waiver versus forfeiture] analysis adds nothing but complexity to the case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir.2010). It is unnecessary to address the waiver versus forfeiture issue because even under a de novo review, the dog's jump into the car and subsequent sniff was not a search that violated the Fourth Amendment. See United States v. Bowman, 634 F.3d 357, 362 (6th Cir.2011) (declining to decide the waiver issue because the result would be the same under either proposed standard of review); Ganun v. State Farm Mut. Auto. Ins. Co., No. 09–12966, 2011 WL 1869429, at *2 (E.D.Mich. May 16, 2011) (declining to decide if the objections to the magistrate judge's report and recommendation were waived because, even on de novo review, the result is the same).

B.

It is well-established that “a canine sniff is not a search within the meaning of the Fourth Amendment,” but “the canine team must lawfully be present at the location where the sniff occurs.” United States v. Reed, 141 F.3d 644, 650 (6th Cir.1998). An alert to the presence of drugs by a properly trained narcotics detection dog is sufficient to establish probable cause to search a vehicle. See, e.g., United States v. Diaz, 25 F.3d 392, 393–94 (6th Cir.1994). Defendant argues that the narcotics detection dog was not lawfully present at the location where the sniff occurred because the sniff occurred inside the car after the dog jumped into the car through an open window.

Unlike other circuits, this Court has not addressed this exact situation. In another case involving a police canine, however, we have stated that “absent police misconduct, the instinctive acts of trained canines ... do[ ] not violate the Fourth Amendment.” Reed, 141 F.3d at 650. In Reed, the defendant allowed the police and a trained canine to enter his apartment to search for a fugitive burglar. Id. at 647. The police gave the canine the signal to search for intruders and released the dog. Id. The defendant did not know that the canine was also trained to search for drugs. Although not ordered to search for drugs, the dog alerted to the presence of drugs in several areas during the search. Id. The canine alerted to the presence of drugs inside a dresser and knocked one of the dresser drawers off its runners. Id. After the drawer fell to the ground, the police observed, in plain view, what appeared to be narcotics inside the dresser drawer. Id. This Court noted that “at least two circuits have found that, absent police misconduct, the instinctive acts of trained canines, such as trying to open a container containing narcotics, do[ ] not violate the Fourth Amendment.” Reed, 141 F.3d at 650 (citing United States v. Lyons, 957 F.2d 615, 617 (8th Cir.1992); United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989)).

Our sister circuits who have addressed this precise issue are unanimous in holding that a dog's instinctive jump into a car does not violate the Fourth Amendment as long as the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforcement. See, e.g., United States v. Pierce, 622 F.3d 209, 213–14 (3d Cir.2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir.2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989). The Tenth Circuit was the first court to conclude that even though a drug detection dog jumped into a car through an open hatchback, the “dog's instinctive actions d[o] not violate the Fourth Amendment” because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car. Stone, 866 F.2d at 364. In contrast, a dog sniff from the inside of a vehicle becomes a search that violates the Fourth Amendment when “the officers themselves opened the door” and “ facilitate[d] a dog sniff of the van's interior.” United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir.1998). The Tenth Circuit recently reaffirmed this distinction, stating that “we have upheld the legality of such a sniff during a lawful detention when ... (1) the dog's leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry, such as a...