DOG AT YOUR FRONT DOOR IS A SEARCH

Today, the U.S. Supreme Court limited the ability of police to use a dog to sniff around the outside of a home for illegal drugs that might be inside. By a 5-4 vote, the court in Florida v. Jarnines held a government's use of trained police dogs to investigate a home and its immediate surroundings was a "search" subject to the limitations of the Fourth Amendment of the Constitution. This decision could make it harder for police to use trained dogs to detect drugs without first obtaining warrants. The Court’s opinion resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at common law. The Court’s majority opinion found it unnecessary to decide whether the dog sniff also violated the individual’s reasonable expectation of privacy. Thus, under this decision, when the police trespass onto private property to conduct a search, the Fourth Amendment applies regardless of whether the trespass also invades someone’s reasonable expectation of privacy.

In 2009, the Indiana Court of Appeals likewise held that the Indiana Constitution requires reasonable suspicion to conduct a dog sniff of a private residence. See Hoop v. State, 909 N.E.2d 463 (Ind.Ct.App. 2009).

While the general public, including the police, generally have the right to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. Furthermore, although a police officer’s initial entry onto an individual’s property may be permissible, they must limit their visit to areas that can reasonably be viewed as open to them for legitimate police business and they cannot remain on a person’s property after it becomes clear to them that the purpose for their visit cannot be properly fulfilled. See, for example, Divello v. State, 782 N.E.2d 433 (Ind.Ct.App. 2003). It has been held to be unreasonable under the Indiana Constitution for police to tour a person’s property to see if anyone was home after no one responded to their knocking on the front door. Shultz v. State, 742 N.E.2d 961 (Ind.Ct.App. 2001).

But dog alerts on vehicles are not given as much protection 

It is well-settled that people in their automobiles have a reduced expectation of privacy, thus a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment or the Indiana Constitution. See Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834 (2005); Gibson v. State, 886 N.E.2d 639 (Ind.Ct.App. 2008) (art. 1 § 11). Last month, the U.S. Supreme Court in Florida v. Harris unanimously ruled that drug sniffing dogs can provide the probable cause needed to allow a police officer to conduct a search of the vehicle, and that records of the alerting dog's field performance may sometimes be relevant but should be considered in the context of all evidence related to probable cause.

However, the dog sniff may not significantly increase the duration of traffic stops. The State has the burden to show that the time for the lawful traffic stop was not increased due to the canine sweep. See, for example, Bush v. State, 925 N.E.2d 787 (Ind.Ct.App. 2010). Furthermore, the Indiana Court of Appeals has held that police may not detain a passenger in order to get a drug-sniffing dog without reasonable suspicion. Regardless of whether police officers had reasonable suspicion to stop the motorist in the first place, if the reasonable suspicion has dissipated, further detention is illegal. See, e.g., Cannon v. State, 722 N.E.2d 881 (Ind.Ct.App. 2000).

PROTECTED PERSON CANNOT BE CONVICTED AS AN ACCOMPLICE FOR VIOLATING A NO-CONTACT ORDER

In Indiana, a violation of a no-contact order issued as a condition of pretrial release
constitutes a misdemeanor offense of invasion of privacy. See Ind. Code 35-46-1-
15.1(5). A separate statute makes clear that an invitation by the protected person “does
not waive or nullify an order for protection.” Ind. Code 34-26-5-1. The Indiana Court of
Appeals recently decided for the first time that a protected person could not be charged
as an accomplice for invasion of privacy by inviting the respondent to make contact. See
Patterson v. State, 979 N.E.2d 1066 (Ind.Ct.App. 2012). Following an Ohio Supreme
Court case, the Court of Appeals concluded, “Protection orders are about the behavior
of the respondent and nothing else. How or why a respondent finds himself at the
petitioner’s doorstop is irrelevant. To find appellant guilty of complicity would be to
criminalize the irrelevancy.”

INDIANA’S FORFEITURE STATUTE DOES NOT APPLY TO FRAUD OR COPYRIGHT INFRINGEMENT

After Michael Curtis pled guilty to fraud for selling pirated movies out of his truck, a trial
judge erred in denying his motion for relief from judgment following the forfeiture of his
truck. The forfeiture was based on the assumption that the content of the pirated movies
sold out of Curtis's truck constituted "stolen..or converted property" pursuant to Indiana’s
forfeiture statute, Ind. Code ' 34 24 1 1(a)(1)(B). However, copyright infringement
does not constitute theft under established U.S. Supreme Court precedent. See Dowling
v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). Furthermore, the
statute clearly allows forfeiture in cases of theft or conversion but says nothing about
copyright infringement or... fraud. As forfeiture of his truck was not authorized by
statute, Curtis established extraordinary circumstances justifying relief. See Curtis v.
State, 981 N.E.2d 625 (Ind.Ct.App. 2013).

TRAFFIC STOPS BASED ON DRUNK DRIVING TIPS

In State v. Renzulli, 958 N.E.2d 1143 (Ind. 2011), the Indiana Supreme Court held that
a police officer had reasonable suspicion to stop a vehicle based on a concerned citizen's
tip of a possibly intoxicated driver. The tipster identified himself, provided a telephone
number to the 911 dispatch officer and reported that he had been following a driver of
a blue Volkswagen who had been driving erratically and was going to "kill somebody."
The caller told the 911 operator the vehicle just pulled into a BP Gas Station but he
was unable to get a license plate number. Within 90 seconds, an officer arrived at the
gas station, observed the blue Volkswagen backing out of parking space and stopped
Renzulli.

The court reiterated its belief that “there may well be greater indicia of reliability in
the report of [a] "concerned citizen" as distinguished from [a] "professional informant."
Regardless, based on the totality of the circumstances, the concerned citizen in this case
supplied sufficient information to establish reasonable suspicion to support the officer's
investigatory stop (i.e., make/color of vehicle at time of night with minimal traffic, and
almost immediate response/arrival at the scene by the police). The Court held that the
circumstances of this case warranted an immediate response by the police for the safety
of the general public, as well as for the safety of Renzulli herself.