If the Constitution defines something a police officer is forbidden to do, can his dog do it for him? Yes, a federal appeals court says, so long as the dog does it on its own.

The case is U.S. v. David W. Sharp. It is in the 6th Circuit--Ohio--and not binding here. The ruling is by Judge Karen Caldwell, and was out July 27. (Hat tip to The Volokh Conspiracy.)

Here is the case. Police had David Sharp by his car, but they did not have probable cause to search the car. An officer arrived with a police dog. Outside the car, with door closed, the dog was told to sniff for drugs. But Sharp, whose judgment was not on the cutting edge that day, had left the window open. The dog went past the window, sniffing, turned around, walked back and jumped through. Said the judge:

“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 seat."

For having 154 grams of meth in his shaving kit, Sharp was sentenced to 30 years in prison for intent to distribute. Clearly he was guilty, though 30 years does seem like a harsh sentence. My interest is in the ruling about the dog.

If the cop had ordered the dog to jump through the window the evidence would not be admissible, the judge wrote. But the dog was not ordered to jump. His action was “instinctive,” the judge said.

The defendant argued that the jump was not instinctive because the dog "was trained to sniff for drugs and that by jumping into the car, he was merely carrying out that training.” Furthermore it was not the first time the dog had done this; it had a habit of jumping into cars when it smelled drugs.

That’s O.K., the judge said—as long as the dog was not trained to jump into the car in all cases. In other words, if the dog smelled the drugs before it jumped, the search was O.K. So the judge ended her ruling:

“The drug dog jumped into Defendant’s car because the dog smelled the drugs in the car, not because he was trained to jump into the car or because the police encouraged or facilitated the jump. Accordingly, we AFFIRM the judgment” [in favor of the government].

If you care about the Fourth Amendment, this is a creepy ruling. I suppose you can argue that the dog had probable cause. But the dog can't give an "oath or affirmation.. particularly describing the place to be searched, and the persons or things to be seized." He just jumps through the window and the judge says O.K. And the penalty is 30 years...