BOISE, Idaho — The Idaho Supreme Court ruled on Monday that a narcotic detecting police K9 trespassed, and thus conducted an illegal search by placing its paws on a defendant’s vehicle, prompting the search that led to the man’s arrest. As a result, his conviction for felony drug possession and delivery was vacated.
The case fell in favor of the defendant by a 3-2 ruling. It centered on the 2019 arrest of Kirby Dorff, who was stopped by a patrol officer in Mountain Home, Idaho after he failed to signal while changing lanes. A K9 handler along with his police service dog (PSD) arrived to assist, Big Country News reported.
The officer who stopped Dorff learned that he was not in possession of a valid driver’s license or proof of insurance for the vehicle. As they conversed, the handler directed K9 Nero to conduct an exterior sniff around the car.
K9 Nero alerted to the presence of narcotics, which ultimately led to police discovering methamphetamine in the vehicle. The case further developed with the search of a motel room where Dorff was staying. Police located another 19 grams of meth as well as additional narcotic paraphernalia in the room, authorities said.
Dorff was arrested and subsequently charged with felony delivery and possession of a controlled substance, among other charges.
However, police bodycam footage showed that K9 Nero 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, according to court documents.
Dorff’s attorney submitted a motion to suppress, or exclude, the evidence from the case, since K9 Nero “trespassed” on his vehicle. A district court judge in Ada County rejected the argument. Dorff pleaded guilty on the condition that he could appeal the denial of his motion to suppress evidence, and in June 2020 he appealed to the Idaho Supreme Court.
In the majority opinion, Justice Robyn Brody wrote that justices weighed whether the PSD’s intrusion on the exterior of Dorff’s vehicle constituted a trespass, as it would have if the K9 had actually entered the interior of the vehicle.
Ultimately, Brody wrote, she and concurring justices John Stegner and Colleen Zahn believed the exterior of the vehicle is protected by the Fourth Amendment. As a result, it is protected against unlawful searches. They said the drug-sniffing K9 “intermeddled” with Dorff’s personal effects by jumping on the vehicle, Big Country News reported.
“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 noted in the legal opinion.
“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 in the majority opinion.
The case now returns to the district court to proceed with the motion to suppress in place.
Chief Justice Richard Bevan and Justice Greg Moeller wrote dissenting opinions. Bevan’s opinion reiterated his view from an earlier case that a narcotic detecting K9’s instincts aren’t the same as intentional police intrusion.
Consequently, 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.
In a separate dissenting opinion, Moeller did not believe K9 Nero placing his paws on Dorff’s vehicle constitutes an illegal search. He said the majority decision returns the court to “murky and uncertain legal waters.”
