A question about traffic stops and drug dogs: if a person pulls into the driveway during a traffic stop, would that also allow you to do a K9 sniff? Anthony recorded this answer in Boston in 2024, before the show floor opened up, because once it does it gets very loud in there with 20,000 law enforcement professionals from around the world.
Why is a driveway traffic stop even a concern?
So this is a very good question, and let’s lay out some ground rules here. Number one, why is this even a concern, right? It’s a concern because of Collins v. Virginia. There the U.S. Supreme Court said that the motor vehicle exception does not apply when a vehicle is in curtilage. And the facts in Collins essentially held that there was a stolen motorcycle in Collins’s curtilage, basically in his carport. And the police officers then recovered that motorcycle and charged him accordingly.
When they went to court and they were asked, what gave you the authority to be on Collins’s curtilage to recover that bike, they threw out the old-fashioned, tried and true 1925 case of Carroll, right, the motor vehicle exception. We had the PC, we knew the bike was stolen, therefore we can seize that evidence because we can see it from the road and so forth.
And the U.S. Supreme Court says, well, actually you got a problem here, right? The problem is that this bike is on a very protected area known as curtilage. So how do you get onto the curtilage, right? You’re going to need something else, another exception to get you there. So you’re not really lawfully present. The motor vehicle exception, nor does plain view fix this problem, right? Plain view is right to be, right to see. Plain view doesn’t necessarily allow you the right to grab it.
What should you do if a driver pulls into their own driveway during a traffic stop?
Going back to our traffic stop case, this question has come up time and time again. It’s a very good question. I don’t have an easy answer, because there’s not a lot of cases directly there. No cases on this particular issue, right? But what I have been teaching officers is that generally speaking, if the person rolls into their driveway during a traffic stop, I’m telling you to treat it normally, right? Because probably in one sense, they are consenting. I think I would argue this at least, they’re consenting to bring that interaction to their driveway, right?
They don’t want their car towed if they’re intoxicated, and if they’re intoxicated there’s probably not going to be a tow, there’s no community caretaking rationale. So one, for them, they get a little benefit by bringing that car onto their curtilage, unless the law requires a tow. They want to be close to their home. Maybe they’re young and they’re scared and so forth and their parents are there. The point is, I would just say, look, I tried to pull you over, you pulled into your driveway, right, and we just go from there.
Does implied consent to the stop include running the dog around the car?
And then, does that mean the dog can be running around the car? It’s tricky, right? It is tricky, because if it is curtilage, right, what did they imply? Did they also imply to run the dog around the car? I don’t know if we can make that argument, right? Because we also have another case called Florida versus Jardines, where the Miami police officers brought a drug sniffing dog named Franky to a front door to sniff during a knock and talk. Well, knock and talks are consensual encounters, so, and the Supreme Court said that wasn’t lawful, because there was no implied consent to bring that drug sniffing dog onto the curtilage.
So we have that problem, and aren’t we kind of similar with the car, right? Maybe you going to the car and talking to the driver is implied consent, or even a little bit of exigency, right? I also agree, exigency, trying to identify these people, who are they? But what about the drug sniffing dog? So we have that issue.
What if the driver tells you to get off their property?
And another thing that’s going to come up sometimes is that these people are going to be like, get off my property, right, I don’t want you here. Now you’re going to have to move into the realm of exigency. I think you’re going to have it in most of your cases, but just be prepared to articulate that.
If I left right now, I didn’t know who the driver is, there’s multiple people in the car, they could be switching seats. If I believe the person could be intoxicated because they’re weaving in their lane before I pull them over, if I let them go right now and they go into their house, they’re going to contaminate their blood with more alcohol, they’re going to keep drinking inside the house, they’re going to barricade, it’s going to present a big issue to even get them out of the house. And then by the time I get the blood draw it’s going to be either completely contaminated, or it’s not going to be even remotely accurate by the time I get the warrant. The point is, these are very tricky issues.
Should you run a drug dog around a car parked on curtilage?
So I think my advice at this point, considering Jardines and Collins, is you really shouldn’t be running that dog around the car if the car is truly on curtilage, unless you have some other reason to think that it would be lawful, like more like express consent from this person, or if you can articulate some kind of exigency, which I’m not sure you would have. I could be wrong.
And if there’s another case out there that says, Anthony, actually a judge upheld it under these similar facts, please share it in the comments below, because I want to read it. But I’m just trying to use some framework cases to kind of come to an answer, and my computer, which is not that great, is spitting out an answer of probably shouldn’t do it. I wish I was more concrete and had a better answer for you, but that’s where I feel about it at this point in time. Please change my mind if you have anything else.
The short version
- The U.S. Supreme Court said that the motor vehicle exception does not apply when a vehicle is in curtilage.
- You’re going to need something else, another exception to get you there. Plain view is right to be, right to see. Plain view doesn’t necessarily allow you the right to grab it.
- If the person rolls into their driveway during a traffic stop, I’m telling you to treat it normally.
- They’re consenting to bring that interaction to their driveway.
- Did they also imply to run the dog around the car? I don’t know if we can make that argument.
- If they tell you to get off my property, now you’re going to have to move into the realm of exigency. Just be prepared to articulate that.
- You really shouldn’t be running that dog around the car if the car is truly on curtilage, unless you have some other reason to think that it would be lawful.
- I wish I was more concrete and had a better answer for you, but that’s where I feel about it at this point in time.
Related from Blue to Gold
- Searching Vehicles on Curtilage
- Towing a Fleeing Suspect’s Car From a Driveway
- Vehicle Search on Curtilage
This article is an edited transcript of Roadside Chat Ep. #725. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
