subject: Possession Heroin Intent Distribute Maryland Cecil County [print this page] Possession Heroin Intent Distribute Maryland Cecil County
Jackson v. State, 190 Md. App. 497, 501 (Md. Ct. Spec. App. 2010)
The Court held that "a dog sniff was not a search within the contemplation of the Fourth Amendment and that once the dog alerted, the officer had probable cause to support a warrantless search of defendant's vehicle. A dog sniff conducted during a concededly lawful traffic stop for speeding that reveals no information other than the location of a substance that no individual has any right to possess, does not violate the Fourth Amendment.
The dog sniff was beyond constitutional challenge, and the court deliberately have refrained from using the term of art "reasonable." That verbal restraint on our part is because "reasonableness" is a Fourth Amendment criterion and Fourth Amendment criteria are of no significance in appraising the use of a drug-smelling dog. The un-challengeability of a dog sniff has nothing to do with Fourth Amendment reasonableness. The tolerance of the dog sniff is, rather, an instance of Fourth Amendment inapplicability and not one of Fourth Amendment satisfaction. A dog sniff can be neither "reasonable" nor "unreasonable" in a Fourth Amendment sense, because the Fourth Amendment can be neither satisfied nor violated where it does not apply. So long as the police agent, human or canine, is in a place where that agent has a constitutionally unassailable right to be, it is free to employ its olfactory senses in any way it wishes. The dog is as free to smell cocaine or marijuana as the officer is free to smell the roses or the garbage or "the breath of new mown hay." Neither dog nor man needs a judicial permission slip to sniff the air.
See Illinois v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). A dog sniff is neither a search nor a seizure and the Fourth Amendment, therefore, does not apply. Once a drug dog has alerted a trooper to the presence of illegal drugs in a vehicle, sufficient probable cause exists to support a warrantless search of a vehicle.
