An Iowa woman seeking to overturn her drug possession conviction has filed a petition for certiorari with the U.S. Supreme Court, arguing that a police search of her vehicle based on a drug-detection dog’s sniff through an open window violated her Fourth Amendment protection against unreasonable searches and seizures.

Ashlee Mumford was convicted in Madison County District Court for possession of marijuana and drug paraphernalia after the trial court denied her motion to suppress evidence obtained in a search conducted during a traffic stop.

Mumford argues that the Iowa Supreme Court, in affirming the district court, was on the wrong side of a split among other state and the federal courts on the question of whether a drug-detection dog’s sniff inside a vehicle absent probable cause violates the Fourth Amendment. She urges the U.S. Supreme Court to take her case and resolve the split.

State and federal courts are in agreement that a drug-detection dog’s open air sniffing around the exterior of a vehicle is not a search for Fourth Amendment purposes and does not violate a reasonable expectation of privacy. Courts are divided, however, on the question of whether and under what circumstances a dog’s intrusion into the interior of a vehicle–however brief–violates the Fourth Amendment.

The Iowa Supreme Court held in Mumford’s case that when the dog put its paws on the car and briefly stuck its nose inside her vehicle it was acting instinctively and not under a command from its handler encouraging the intrusion. There was no reasonable expectation of privacy and thus no Fourth Amendment violation, the Court said in the decision written by Justice Christopher McDonald and joined by Chief Justice Susan Christensen and Justices Edward Mansfield, Thomas Waterman, and David May. Justice Dana Oxley filed a dissent joined by Justice Matthew McDermott, who filed a separate dissent finding the search violated the Iowa Constitution as well. [See On Brief’s analysis of the Court’s opinion here.]

Mumford argues that the Iowa Supreme Court’s decision–which is consistent with recent decisions of the St. Paul, Minnesota-based U.S. Court of Appeals for the Eighth Circuit–is at odds with other state and federal courts.

The Idaho Supreme Court and the U.S. Courts of Appeal for the Fifth and Ninth Circuits, for example, have held that when a police officer or a drug-detection dog under an officer’s control breaches the vehicle’s interior that amounts to a trespass and a search under the Fourth Amendment.

That is what happened in her case, Mumford argues in her petition to the U.S. Supreme Court, citing the Court’s 2013 decision in Florida v. Jardines, which said that when the government “obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has undoubtedly occurred.”

The drug dog in Mumford’s case did not uncover anything from a walk around the exterior of her car, she argues. Rather, it alerted to the presence of controlled substances only after it stood on its hind  legs, placed its front paws on the passenger door, and entered the cabin of the vehicle by sticking its snout across the “plane of the passenger window.”

In response to Mumford’s petition, the State of Iowa, in a brief filed with the U.S. Supreme Court by Attorney General Brenna Bird, argues the Iowa Supreme Court got it right and that the Idaho decision is an outlier and that there is no split between the federal circuit courts.

The Ninth Circuit cases cited by Mumford are irrelevant to the issue of a dog’s incidental contact, the State argues, saying the Ninth Circuit has not even addressed the issue of a dog’s instinctual entry or touching of a car. And the Fifth Circuit held that a dog’s incidental touching of a bumper was not an unconstitutional Fourth Amendment search under U.S. Supreme Court precedent because a dog’s “incidental contact” was not automatically attributable to police conduct.

“Petitioner repeatedly cites cases upholding a dog’s entry into a car but omits the fact that exterior alerts or other sources granted probable cause for that entry,” the State argues. “Taken together, courts agree that a dog’s exterior alert gives probable cause, even if the officer eventually directed or facilitated the dog’s entry into the car.”

The State cites an “instinctual entry doctrine” for why the Iowa Supreme Court correctly decided Mumford’s case. The instinctual-entry doctrine applies when a police officer executes a lawful exterior sniff and the dog incidentally touches the exterior or passes into the interior of a car without first alerting, the dog’s exterior touching or entry was neither officer-directed nor officer-facilitated. Instinctual entries also include a dog’s entry into a vehicle after an exterior alert establishes probable cause, the State argues.

Amicus curiae briefs in support of Mumford have been filed with the U.S. Supreme Court by the New York-based Center for Appellate Litigation and by the Virginia-based Rutherford Institute and Restore the Fourth Inc. Documents related to this case (24-1093) can be found on the U.S. Supreme Court’s website.

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