Hoop v. State, 49A02-0807-CR-666
2nd Dist., 07-14-09, Ind.App. 909 N.E.2d 463
Attorney: Timothy Burns
Holding: Although under Article I, Section 11 of Indiana Constitution, a police officer needs reasonable suspicion to conduct a dog sniff of a private residence, the police in this case relied in good faith on the warrant. As long as an officer is lawfully on the premises, the officer may have a dog sniff the residence without implicating the Fourth Amendment. However, under Article I, Section 11, police should not be permitted to enter a person’s property and search his or her garbage without reason. Litchfield v. State, 824 N.E.2d 356, 363 (Ind. 2005). As Litchfield placed overriding weight on the need to restrict arbitrary selection of persons to be searched, and that same concern is present with dog sniffs of private residences, reasonable suspicion is needed to conduct a dog sniff of a private residence.
Here, a CI told police that he smelled marijuana being cultivated while in Defendant’s home. Also, Defendant used more electricity than the previous occupants of the home. Based on this information, the police conducted a dog sniff of the outside of Defendant’s home and the dog alerted. The police then obtained a warrant based on the dog sniff, the electricity usage and the CI who had been used successfully in the past. Even if police did not have reasonable suspicion to conduct the dog sniff, they relied in good faith on the warrant. At the time of the search, the officer had no reason to think the sniff was unlawful. The sniff was permissible under the great weight of authority under the Fourth Amendment. Although Court finds support for a reasonable suspicion requirement in Litchfield, neither Litchfield nor previous opinions assessing the reasonableness of dog sniffs under Article I, Section 11 clearly foreshadow the result in this case. Thus, the officers reasonably relied on the magistrate’s conclusion that the dog sniff was in accordance with the law, and trial court properly denied Defendant’s motion to suppress. Held, judgment affirmed.
