State v. Miller, 367 N.C. 702 (Dec. 19, 2014)

The court held that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment. Responding to a burglar alarm, officers arrived at the defendant’s home with a police dog, Jack. The officers deployed Jack to search the premises for intruders. Jack went from room to room until he reached a side bedroom where he remained. When an officer entered to investigate, Jack was sitting on the bedroom floor staring at a dresser drawer, alerting the officer to the presence of drugs. The officer opened the drawer and found a brick of marijuana. Leaving the drugs there, the officer and Jack continued the protective sweep. Jack stopped in front of a closet and began barking at the closet door, alerting the officer to the presence of a human suspect. Unlike the passive sit and stare alert that Jack used to signal for the presence of narcotics, Jack was trained to bark to signal the presence of human suspects. Officers opened the closet and found two large black trash bags on the closet floor. When Jack nuzzled a bag, marijuana was visible. The officers secured the premises and obtained a search warrant. At issue on appeal was whether Jack’s nuzzling of the bags in the closet violated the Fourth Amendment. The court of appeals determined that Jack’s nuzzling of the bags was an action unrelated to the objectives of the authorized intrusion that created a new invasion of the defendant’s privacy unjustified by the exigent circumstance that validated the entry. That court viewed Jack as an instrumentality of the police and concluded that “his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer.” The Supreme Court disagreed, concluding that “Jack’s actions are different from the actions of an officer, particularly if the dog’s actions were instinctive, undirected, and unguided by the police.” It held:

If a police dog is acting without assistance, facilitation, or other intentional action by its handler (. . . acting “instinctively”), it cannot be said that a State or governmental actor intends to do anything. In such a case, the dog is simply being a dog. If, however, police misconduct is present, or if the dog is acting at the direction or guidance of its handler, then it can be readily inferred from the dog’s action that there is an intent to find something or to obtain information. In short, we hold that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment or Article I, Section 20 of the North Carolina Constitution. Therefore, the decision of the Court of Appeals that Jack was an instrumentality of the police, regardless of whether his actions were instinctive, is reversed. (citation omitted)

Ultimately, the court remanded for the trial court to decide whether Jack’s nuzzling in this case was in fact instinctive, undirected, and unguided by the officers.