Dog Lawfully Sniffed Drugs Once Invited Inside Cocaine Dealer’s Home

by | August 28, 2018

United States v. Iverson, 897 F.3d 450 (2nd Cir. 2018)

Elijah Iverson, a neighborhood cocaine dealer, met a girl known only as “Candy” at a liquor store and took her home. While Candy was in his bathroom, Iverson heard her make a phone call. She then scooted out of his apartment without further sociality. When Iverson then saw an armed prowler on the apartment landing, he thought Candy had set him up to be robbed. Whatever would a prowler want in a cocaine dealer’s home? Iverson called 9-1-1 to report the armed man in a hoodie outside his apartment.

Responding officers included a police service dog team and police service dog, Tank. The officers first checked the perimeter for the prowler and any possible discarded gun. The handler and Tank, and two other officers, then knocked on Iverson’s open door, announced who they were, and called out to ask Iverson whether they could enter the apartment. Iverson shouted back, “Come in!” Iverson came into the hallway, where he could see the three officers and Tank. Iverson didn’t say anything about the presence of the dog.

As the officers spoke with Iverson, Tank began to bark and pull his handler toward the kitchen in a manner that communicated Tank had become aware of the odor of drugs. After a little discussion, Iverson admitted he had one-eighth ounce of marijuana for personal use. One sniff led to another and soon the officers found more marijuana and also cocaine. A subsequent search, pursuant to a warrant, turned up additional bags of marijuana, quantities of crack, an assault rifle, and ammunition.

Iverson asserted the evidence was unlawfully discovered because Tank’s sniff search violated the Fourth Amendment. He said he had not authorized a search of his apartment when he invited the officers in and that his conversation with the officers was involuntary. The court made short work of his claims. Iverson never testified that he didn’t see Tank entering with his handler. The fact that Tank merely accompanied his handler into the apartment did not create a search. Long-established Supreme Court jurisprudence holds that a detector dog’s sniff is not a search “within the meaning of the Fourth Amendment” (United States v. Place, 462 U.S. 696 (1983)). Because Tank and his human police friends were lawfully present in Iverson’s apartment, Iverson could not assert any legitimate or reasonable expectation of privacy in “airborne particles bearing odors.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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