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Four paws and a good nose – but still a cop, court rules

“The dog did it” is not an acceptable excuse for an unconstitutional search, the North Carolina Court of Appeals has ruled.police dog

The case began with a report that a burglar alarm was going off at a home in Spencer. When police arrived, they noticed that a window in the back of the house was broken, and it appeared that someone had entered the house through it. Believing that the suspect might still be inside, police called a canine unit to the scene.

The dog that searched the home, “Jack,” was trained both to detect narcotics and search for suspects. During the search, Jack stopped in front of a hallway closet and barked at the door. Police said that the closet was large enough to hide an intruder, and barking generally indicates that Jack has located a suspect, so officers opened the door.

They did not find any burglars. They did, however, find two large and partially open garbage bags containing marijuana. Police arrested Michael Miller on charges of possession with intent to sell or deliver marijuana. Miller moved to suppress the evidence found in the closet, but a Rowan County judge allowed the search, ruling that the marijuana was in plain view, even though one officer testified that the bags may have been closed until Jack stuck his nose in them.

Miller pled guilty but appealed the denial of his motion. The Court of Appeals remanded the case, ruling, in a case of first impression, that the marijuana was not actually in plain view if Jack had exposed marijuana that otherwise would have remained hidden from the officers’ view.

Had the officers manipulated or opened the trash bag in such a way that the marijuana, which was initially hidden from view, became exposed, the marijuana would not have been in plain view, and their action would constitute a search which must be justified under the Fourth Amendment. The same rule, the court said, would likewise apply to a canine inquirer as to the human variety.

“Jack was an instrumentality of the police, and his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer. If he opened the bags and exposed the otherwise hidden marijuana, it would not be admissible under the plain view doctrine,” Judge Robert C. Hunter wrote for a unanimous court.

The case was remanded back to the trial court for more fact-finding because of conflicting testimony about whether the trash bags were partially open at the time officers opened the closet door. If the trial court finds the bags were already partially opened so that the marijuana could be seen by the officers, then the plain view doctrine would apply, and the evidence would be admissible. But if Jack opened the bags in his attempt to sniff their contents, the marijuana would not have been in plain view and should have been suppressed.

The trial court did find that officers had previously conducted an unlawful search when they opened a drawer, where burglars presumably could not hide, and found still more marijuana. The appeals court rejected Miller’s argument that any subsequent searching of the house was therefore also unconstitutional. Police also found marijuana outside the house, and that evidence was unchallenged.

William Trippe McKeny in Salisbury represented Miller. He said that Rowan County prosecutors had already offered to plead down the charges to a misdemeanor based on the court’s ruling, but no decisions had been made yet.

The 15-page decision is State v. Miller (Lawyers Weekly No. 13-07-0801). The full text of the opinion is available online at

Follow David Donovan on Twitter @NCLWDonovan

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