ORGAN, COURTNEY JAMES-VARNELL v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0841-24

STATE OF TEXAS

v.

COURTNEY JAMES-VARNELL ORGAN, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
WALLER COUNTY

NEWELL, J., delivered the opinion of the Court in which
RICHARDSON, YEARY, KEEL, WALKER, MCCLURE and FINLEY, JJ., joined.
PARKER, J., filed a concurring opinion. SCHENCK, P.J., filed a dissenting
opinion.

OPINION

Does the intrusion of a drug-detection dog’s nose through the open

window of a car during an open-air sniff violate the Fourth Amendment? In
Organ -- 2

this case, Yes. The repeated intrusion of the dog’s nose into a vehicle during

an open-air sniff for narcotics amounted to a search under the Fourth

Amendment without probable cause. Consequently, the trial court

properly granted Appellee’s motion to suppress evidence seized during the

subsequent search of the vehicle based upon the dog’s alert. Therefore, we

affirm the judgment of the court of appeals upholding the trial court’s order.

Background

Waller County Trooper Kyle Cornell stopped Appellee’s vehicle for

speeding. The vehicle was registered out of Austin and occupied by two males.

After initiating the stop, Trooper Cornell approached the passenger side

window and asked the occupants to lower the window. As he approached, the

driver, Appellee, lit a cigarillo and began smoking, which Trooper Cornell

believed could be indicative of nervousness or an attempt to mask a smell

inside of the vehicle. Trooper Cornell noticed the vehicle smelled like

deteriorating food and saw multiple food containers inside of the otherwise

clean vehicle. While he was “unable to tell” if there was an odor of marijuana,

he believed that the “very, very slight” smell of marijuana was “a possibility”

that could have been masked by the “overwhelming smell” of cigarillo smoke

and food. Appellee and the passenger provided their driver’s licenses. Given

the occupant’s nervousness, the car’s smells, and the vehicle’s travel from

Austin to Houston, Trooper Cornell “kind of figured something was going on.”
Organ -- 3

Trooper Cornell had Appellee exit the vehicle to continue his

investigation. Appellee appeared to be nervous, redirected from questions or

failed to fully answer them, and seemed dishonest about his criminal history. 1

Trooper Cornell called for backup. Deputy Jason Kern arrived on scene with

his K-9 partner, Jaks, a narcotics detection dog. Trooper Cornell believed

there were narcotics in the vehicle and requested consent to search from the

passenger, the vehicle’s registered owner. The passenger denied consent to

search.

Following the refusal, Deputy Kern conducted an open-air sniff with

Jaks. 2 As Deputy Kern led Jaks around the vehicle’s exterior, he verbally

instructed Jaks to “check here” several times and used his hand to direct Jaks’s

attention to the vehicle’s trunk, back passenger door, and front passenger

door. 3 During the open-air sniff, as Jaks approached the front passenger door,

1
The Trooper testified that Appellee’s CCH showed that he had been arrested for assault on
a public servant and the NCIC showed him to be a registered gang member. When confronted
with the fact of that arrest, Appellee stated all the charges had been dismissed. Trooper
Cornell testified that because of Appellee’s criminal history, he had safety concerns.

2
The open-air sniff was not a single action but multiple responses to the vehicle cued multiple
times by the dog’s handler. The dog’s handler cued the dog throughout the sniff including
both verbally and physically instructing the dog to check at the passenger side door. The dog
stuck his paws on the passenger side door and stuck his head through the window into the
vehicle’s interior in three separate instances. We have posted the video of the event on the
Court’s website and it can be viewed here. The website location is
https://pbvideo.vids.io/videos/109bdeb21e1fe7c29a/pd-0841-24-organ-exhibit. As the video
reveals, Jaks was repeatedly commanded, cued, and prompted by his handler. Though his
handler never explicitly prompted Jaks to stick his nose inside the car, we currently lack the
ability to ascertain how the dog understood his handler’s prompt to “check here.”

3
Deputy Kern testified that he and Jaks were a new team. According to Deputy Kern, he had
worked with Jaks for a total of approximately six months, including 8-9 weeks of canine
training school, before switching dogs in September following an incident of biting during a
training accident. The stop we are considering occurred in April.
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he jumped up at the passenger side window, leaned against the car with his

front paws, and stuck his nose through the open window. Deputy Kern tried

to lead Jaks to the front of the vehicle, but Jaks returned to the open window,

put his front paws on the car, and stuck his face through the open window two

more times. After the third time, Jaks sat down. Jaks’s passive response,

changes in his breathing pattern, and the “abnormality” of the dog continuing

to put his feet upon the window and put his head by the window “to get bigger

smells” indicated to Deputy Kern that Jaks was smelling one of the odors he

was trained to identify.

Jaks was trained to identify odors of marijuana, 4 MDMA, cocaine, meth

and heroin. Jaks was also trained to alert to residual odors, but he had not

been conditioned against alerting to food. According to Deputy Kern, it was

possible Jaks was responding to the food in the vehicle. 5 Based on Jaks’s

positive alert, police searched the vehicle and a large trash bag with pills

believed to be Xanax was found under the driver’s seat. The State charged

4
There was also a good deal of testimony at the hearing on the motion to suppress concerning
a distinction between hemp and marijuana and the dog’s ability to differentiate between the
two. This testimony is not recited herein because it is not relevant to the ultimate issue before
this Court.

5
Specifically, Deputy Kern, when asked whether the dog would have alerted because of the
food, testified: “It’s a possibility. These dogs are not perfect, and no person is perfect, but it’s
a possibility with some dogs. But the changes of behavior that I observed with that dog of
him going back to the passenger’s side window of the vehicle two and three times and sticking
his head up by the window and getting huge whiffs or whatever was inside of the vehicle,
those are -- those are not -- behavior like that is not conditioned. So, the dog took me to the
open window several times before he was like, okay, and showed his -- his passive response.”
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Appellee with the first-degree felony of possession of 400 grams or more of

Etizolam. 6

Appellee filed several pretrial motions seeking to suppress the evidence

seized. At a hearing on Appellee’s motions, the trial court heard testimony

from Trooper Cornell and Deputy Kern consistent with the facts above. 7

Additionally, the trial court admitted Trooper Cornell’s dashcam video, Trooper

Cornell’s bodycam video, and Deputy Kern’s bodycam video into evidence.

Still frames from the dashcam video, which are relevant to the issue before

the Court today, were admitted and show the following:

6
Tex. Health & Safety Code § 481.117(e). Etizolam is similar to Xanax but has not been
approved for medical use by the FDA. It is undisputed that Jaks was not trained to alert to
Etizolam.

7
In a bill of exception, the trial court also heard testimony from Daniel Mehler concerning the
chemical composition of cannabis plants.
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These frames, the State concedes, show three separate instances of Jaks

jumping up on the passenger window and putting his face through the car’s

open window into the car’s interior. 8 At the hearing, Appellee argued that the

dog impermissibly entered the vehicle, and his alert did not provide probable

8
State’s Brief at pgs. 5-6 (citing State’s Exhibit 1 at 28:28; 28:36; and 28:49).
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cause to search the vehicle because Jaks was not well-trained and was

possibly alerting to food or a legal hemp scent. The State responded that the

dog did not enter the vehicle and that Jaks’s alert did provide probable cause

to search the vehicle.

The trial court denied Appellee’s motion to suppress concluding that the

totality of the circumstances provided reasonable suspicion for the officer to

run the dog. 9 The trial court found the dog’s alert provided probable cause.

On the issue of whether the dog’s nose impermissibly entered the car, the trial

court found the video evidence spoke for itself but noted it was “not aware of

any specific case that says that the dog’s nose cannot break the plane of the

window and where does that plane exist.” With that, the trial court denied

Appellee’s motion to suppress the evidence and concluded the hearing.

Appellee filed a motion for the trial court to reconsider its ruling arguing

that the dog’s alert did not provide probable cause. Specifically, Appellee

argued that the alert was obtained through an unconstitutional trespass into

the vehicle’s interior by the dog’s nose. The State responded that Jaks did

not trespass or illegally search the vehicle because the area he passed through

was not enclosed. 10

9
The trial court found the following factors relevant to the reasonable suspicion analysis:
Appellee’s speeding, the slight odor of marijuana, the officer’s experience with the masking
of smells by food and smoke, the occupant’s evasive answers concerning their travel and
criminal history.

10
Appellee also re-urged his argument that Jaks’s alert was not reliable because he was not
sufficiently trained. The State responded that Jaks was trained on five odors sufficient for him
to be considered well-trained, and an odor of marijuana emanating from the car would
establish probable cause to search the vehicle. However, no marijuana or hemp products
Organ -- 8

Upon reconsideration, the trial court granted Appellee’s motion to

suppress. The trial court made the following relevant findings of fact:

• There is a preponderance of credible evidence that at the time
of the possible smell of marijuana, Trooper Cornell did have
sufficient, articulable facts to establish a reasonable suspicion
that there was contraband in [Appellee’s] vehicle.

• It is uncontroverted that Jaks and Deputy Kern conducted an
open air walk around of [sic] [Appellee’s] vehicle.

• There is credible testimony establishing proof beyond a
reasonable doubt that the nose of Jaks entered or intruded into
the interior of [Appellee’s] vehicle through the open passenger
window.

• There is sufficient credible testimony establishing proof beyond
a reasonable doubt that prior to Jaks’ nose intruding into the
interior of [Appellee’s] vehicle, the dog had not alerted to the
presence of contraband.

• There is sufficient credible testimony establishing proof beyond
a reasonable doubt that immediately after Jaks’ nose intruded
into the interior of [Appellee’s] vehicle, the dog alerted.

• There is some evidence that the dog may have alerted to the
open food container (inside Appellee’s vehicle at the time).

• It is uncontroverted that, based on the alert by Jaks, Trooper
Cornell conducted a search of [Appellee’s] vehicle (that the
search of the vehicle was without a search warrant).

• It is uncontroverted that the only contraband found in
[Appellee’s] vehicle was etizolam.

• It is uncontroverted that Jaks had not been certified or trained
on etizolam as a contraband substance.

The trial court made the following relevant conclusions of law:

were recovered from the vehicle. The only contraband found in the vehicle was Etizolam,
which is not one of the substances Jaks had been trained to alert.
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• [Appellee] . . . had a reasonable expectation of privacy against
a trespass by law enforcement.

• The nose of Jaks entering [Appellee’s] vehicle was a trespass.

• The trespass was for the purpose of obtaining information on
contraband.

• Prior to the trespass Trooper Cornell did not have probable
cause to conduct a search of [Appellee’s] vehicle.

• When a police officer is not permitted to do an act, a dog acting
on the officer’s behalf is not permitted to do an act in lieu of
the officer.

• The search without a warrant of [Appellee’s] vehicle was illegal.

• The evidence of the illegal search, to wit: etizolam, should be
suppressed.

Appeal and Discretionary Review

On appeal, the State raised two points of error. First, the State argued

that the trial court erred to find that Jaks illegally trespassed into Appellee’s

vehicle because the area through the open window was not enclosed. The

State argued that because the window was not closed upon the K-9 handler’s

approach, there was no expectation of privacy in the odors emanating from

the car, which Jaks detected causing him to approach the window. Second,

the State argued that the trial court erred to find that Jaks was not sufficiently

trained to establish probable cause to search based on his alert to the smell

of marijuana. In response, Appellee argued that the court of appeals should

defer to the trial court’s findings because they are supported by the trial

record. Appellee argued that, while the Supreme Court has not directly
Organ -- 10

addressed the question, its holdings in United States v. Jones 11 and Florida v.

Jardines, 12 support the conclusion that a drug-dog’s trespass into the interior

of a car is a search. It was only after this trespass that Jaks alerted and thus,

Appellee argued the subsequent search was a fruit of the poisonous tree and

the evidence seized must be suppressed. 13

The court of appeals upheld the trial court’s suppression of the evidence.

It held, as a matter of first impression, that the dog’s interior sniff of the

vehicle was an unreasonable search in violation of the Fourth Amendment. 14

The court of appeals concluded that the trial court’s finding that Jaks’s nose

entered or intruded into the interior of the vehicle was supported by the video

and testimonial evidence. 15 And, applying the physical-intrusion theory from

Jones and Jardines, the court concluded that Jaks physically occupied private

property for the purpose of obtaining information by sticking his nose inside

Appellee’s car while performing an open-air sniff. This, according to the court

11
United States v. Jones, 565 U.S. 400, 404 (2012) (holding the use of a GPS tracking device
on a suspect’s vehicle was a search for purposes of the Fourth Amendment).

12
Florida v. Jardines, 569 U.S. 1, 5-6 (2013) (holding the use of drug-sniffing dog on the
porch of a residence was a search within the meaning of the Fourth Amendment).

13
Appellee argued, as to the State’s second issue, that the trial court made no finding as to
whether Jaks’s alert was reliable, and the court of appeals need not reach the issue.
Alternatively, Appellee maintained Jaks’s alert was not reliable because he alerted to non-
contraband. Finally, Appellee maintained that because the dog could not differentiate between
hemp and marijuana, his alert was unreliable. Appellee concedes, however, that the reliability
of Jaks’s alert was not ripe for consideration.

14
State v. Organ, 697 S.W.3d 916, 921 (Tex. App. – Houston [14th Dist.] 2024, pet. granted).

15
Id. at 919.
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of appeals, constituted “an unreasonable search in violation of the Fourth

Amendment.” 16

The State filed a petition for discretionary review. In a single issue, the

State asks: Does the intrusion of a drug-dog’s nose through the open window

of a car during a free-air sniff violate the Fourth Amendment or require

exclusion of any evidence found? As we will explain in greater detail below,

we conclude that Jaks’s intrusion into Appellee’s vehicle did violate the Fourth

Amendment, and, under these facts, the decision to exclude the evidence that

subsequently found by law enforcement was within the trial court’s discretion.

Standard of Review

A trial court’s ruling on a motion to suppress is reviewed for an abuse

of discretion applying a bifurcated standard of review. 17 At a suppression

hearing, the trial judge is the sole factfinder and judge of the credibility of

witnesses and the weight to be given to their testimony. 18 We afford a trial

court’s determination of historical facts almost complete deference.19

Likewise, we give the same deference to a trial court’s determinations of

mixed questions of law and fact when those questions depend on an

16
Id. at 921.

17
Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018); Crain v. State, 315
S.W.3d 43, 48 (Tex. Crim. App. 2010).

18
Lerma, 543 S.W.3d at 190.

19
Id.
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evaluation of credibility and demeanor. 20 However, we review questions of

law and mixed questions of law and fact that do not turn on an assessment of

credibility and demeanor de novo.21 Ultimately, the question of whether a

specific search or seizure is “reasonable” under the Fourth Amendment is

subject to de novo review. 22 We will uphold a trial court’s ruling if it is correct

under any applicable theory of law. 23

The Fourth Amendment: Property v. Privacy

The Fourth Amendment provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” 24 The Supreme Court has said

that “[t]he text of the Fourth Amendment reflects its close connection to

property” by its reference to the right to be secure against unreasonable

search and seizures in specifically enumerated areas: “persons, houses,

papers, and effects.” 25 Thus, the Court has recognized that “for most of our

history the Fourth Amendment was understood to embody a particular

20
Crain, 315 S.W.3d at 48.

21
Id.; Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).

22
Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (recognizing that the court views
the trial court’s factual findings in the light most favorable to its ruling but decides the issue
of “reasonableness” as “a question of Fourth Amendment law under Supreme Court
precedent”).

23
Lerma, 543 S.W.3d at 190.

24
U.S. CONST. amend. IV.

Jones, 565 U.S. at 405 (reasoning the phrase “in their persons, houses, papers, and effects”
25

would have been superfluous absent a close connection to property rights).
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concern for government trespass upon the areas (“persons, houses, paper,

and effects”) it enumerates.” 26 This is consistent with English common-law’s

understanding that the “law holds the property of every man so sacred, that

no man can set foot upon his neighbour’s close without his leave; if he does

he is a trespasser, though he does no damage at all; if he will tread upon his

neighbour’s ground, he must justify if by law.” 27 Applying this property-based

understanding, the Supreme Court has held that when the Government

physically occupies private property for the purpose of obtaining information,

a Fourth Amendment search has occurred. 28

This property-based trespassory test has been applied to trespasses into

vehicles. “It is beyond dispute that a vehicle is an ‘effect’” protected by the

Fourth Amendment. 29 In United States v. Jones, the Supreme Court held that

the attachment of a GPS-tracking device on the undercarriage of a suspect’s

vehicle used to track that vehicle’s movements was a search within the

meaning of the Fourth Amendment. 30 The Court reasoned that “[t]he

26
Id. at 406.

27
Id. at 405 (citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); see also Boyd v.
United States, 116 U.S. 616, 626-27 (1886) (recognizing Entick as “the true and ultimate
expression of constitutional law” that “it may be confidently asserted that its propositions
were in the minds of those who framed the fourth amendment to the constitution, and were
considered as sufficiently explanatory of what was meant by unreasonable searches and
seizures).

28
Id. at 404.

29
Id.

30
Id. at 404-05.
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Government physically occupied private property for the purpose of obtaining

information” and had “no doubt that such a physical intrusion would have been

considered a ‘search’ within the meaning of the Fourth Amendment when it

was adopted.” 31 The physical intrusion by law enforcement on to the vehicle

to obtain information presented “a classic trespassory search.” 32 And the

Court reasoned that by applying “an 18th-century guarantee against

unreasonable searches” it was providing the “degree of protection [the Fourth

Amendment] afforded when it was adopted.” 33 But a property-based trespass

is not the exclusive test of whether there was a Fourth Amendment search. 34

In the latter half of the 20th century, the Supreme Court’s Fourth

Amendment cases deviated from the common-law property-based approach

and considered instead whether a person’s reasonable expectation of privacy

had been violated. 35 In Katz v. United States, the Supreme Court stated “the

Fourth Amendment protects people, not places” when considering whether the

Government’s surveillance and recording of a telephone line in a public

telephone booth, a location outside of the Fourth Amendment’s enumerated

areas of protection, violated the Fourth Amendment. 36 The Court noted that

31
Id.

32
Id. at 412.

33
Id. at 411.

34
Id.

35
Id. at 405-406 (citing Katz v. United States, 389 U.S. 347, 351 (1967)).

36
Katz, 389 U.S. at 349-51.
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the parties in Katz formulated property-based arguments around the question

of whether the telephone booth itself was a constitutionally protected area. 37

But the Court instead viewed the inquiry as one concerning privacy,

reasoning that “[w]hat a person knowingly exposes to the public . . . is not a

subject of Fourth Amendment protection . . . [b]ut what he seeks to preserve

as private, even in an area accessible to the public, may be constitutionally

protected.” 38 In the context of the telephone booth surveillance, the Court

held that the Government’s listening to and recording Katz’s phone calls

constituted a search and seizure under the Fourth Amendment because it

“violated the privacy upon which he justifiably relied while using the telephone

booth[.]” 39 This was a departure from the narrow view that surveillance

without a trespass or seizure fell outside of the Fourth Amendment. 40 In his

concurring opinion, Justice Harlan summed up the Court’s analysis in Katz

writing that “a person has a constitutionally protected reasonable expectation

of privacy” that may be violated by electronic as well as physical invasion. 41

37
Id. at 351.

38
Id. (internal citations omitted).

39
Id. at 353.

40
Id. (“Indeed, we have expressly held that the Fourth Amendment governs not only the
seizure of tangible items but extends as well to the recording of oral statements overheard
without any ‘technical trespass under * * * local property law.’”) (citing Silverman v. United
States, 365 U.S. 505, 511 (1961)).

41
Id. at 362 (Harlan, J., concurring).
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The reasonable-expectation-of-privacy test applied in Katz “has been

added to, not substituted for, the common-law trespassory test.” 42 “Katz did

not narrow the Fourth Amendment’s scope.” 43 Rather, it supplements the

understanding of the protections offered by the Fourth Amendment. The

Fourth Amendment thus protects the enumerated areas as well as those

places where a person has a reasonable expectation of privacy. 44 The

Supreme Court was careful to explain in Jones that neither the trespass test

nor the reasonable-expectation-of-privacy test is the exclusive test used to

determine whether there was a Fourth Amendment search. 45 While Katz

established that “property rights are not the sole measure of Fourth

Amendment violations” it remains “that, when the Government does engage

in physical intrusion of a constitutionally protected area in order to obtain

information, that intrusion may constitute a violation of the Fourth

42
Jones, 565 U.S. at 408 (emphasis in the original).

43
Id. at 407-08 (“As explained, for most of our history the Fourth Amendment was understood
to embody a particular concern for government trespass upon the areas (“persons, houses,
papers, and effects”) it enumerates. Katz did not repudiate that understanding.”).

44
Id. at 408 (“Katz did not erode the principle ‘that, when the Government does engage in
physical intrusion of a constitutionally protected area in order to obtain information, that
intrusion may constitute a violation of the Fourth Amendment’”) (citing United States v.
Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring)).

45
Id. at 411. This makes sense because, as the Supreme Court explained, the reasonable
expectation of privacy is “an expectation ‘that has a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to understandings that are
recognized and permitted by society.’” Id. at 408 (citing Minnesota v. Carter, 525 U.S. 83, 88
(1998)).
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Amendment.” 46 Two Supreme Court cases concerning the use of drug-sniffing

dogs illustrate this point.

First, in Illinois v. Caballes, the Court held a drug-detection dog’s open-

air sniff around the exterior of a vehicle during a lawful traffic stop is not a

Fourth Amendment search. 47 The Court considered whether the dog sniff

infringed upon any constitutionally protected interest and stated that “official

conduct that does not compromise any legitimate interest in privacy is not a

search subject to the Fourth Amendment.” 48 The Court reasoned that an

open-air sniff by a well-trained narcotics-detection dog “discloses only the

presence or absence of narcotics, a contraband item,” for which there is no

legitimate privacy interest. 49 Thus, “the use of a well-trained narcotics-

detection dog—one that ‘does not expose noncontraband items that otherwise

would remain hidden from public view’—during a lawful traffic stop, generally

does not implicate legitimate privacy interests.” 50 In that case, the Supreme

Court had no occasion to consider a physical intrusion on to property because

46
Id. at 407 (citing Soldad v. Cook County, 506 U.S. 56, 64 (1992) and Knotts, 460 U.S. at
286 (1983) (Brennan, J., concurring)).

47
Illinois v. Caballes, 543 U.S. 405, 409 (2005).

48
Id. at 408.

49
Id. at 408-409.

50
Id. at 409 (internal citation omitted). Indeed, the Supreme Court’s view of “well-trained”
seems to contemplate that a well-trained drug-sniffing dog would be trained against alerting
to food. As mentioned above, Jaks was not trained against alerting to food.
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the open-air sniff was performed by walking the dog around the exterior of

the defendant’s vehicle on a public road.

Later, in Florida v. Jardines, the Supreme Court considered whether the

use of a drug-sniffing dog on the front porch of a residence constituted a

Fourth Amendment search. 51 The defendant in Jardines was suspected of

growing marijuana in her home. 52 Law enforcement sent a surveillance team

to the residence, but officers observed nothing. 53 Detectives later approached

the residence with a drug-sniffing dog. 54 As the dog approached the front

porch, the dog began exhibiting signs that it was tracking an odor. 55 The dog

sniffed the base of the front door and then sat, which was the trained behavior

for alerting to the odor’s strongest point. 56 A search warrant was obtained

based on the dog’s alert. 57 The Supreme Court granted certiorari to determine

whether the officer’s actions constituted a search within the meaning of the

Fourth Amendment. 58

51
Jardines, 569 U.S. at 5.

52
Id. at 3.

53
Id.

54
Id. at 3-4.

55
Id. at 4.

56
Id.

57
Id.

58
Id.
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The Supreme Court, reaffirming the physical-intrusion theory applied in

Jones, held that the Government’s use of trained police dogs to investigate a

residence and its immediate surroundings constitutes a Fourth Amendment

search. 59 The home and its curtilage, including the front porch, are

constitutionally protected areas. 60 The officers gathered information by

physically entering and occupying an area that belonged to Jardines. 61 While

an officer need not shield his eyes when passing by homes through public

thoroughfares, “an officer’s leave to gather information is sharply

circumscribed when he steps off those thoroughfares and enters the Fourth

Amendment’s protected areas.” 62 Thus, while an officer, just like any citizen,

may approach a residence and knock on the front door without a warrant, the

Court recognized that taking a trained narcotics-detection dog to explore the

area for the purpose of discovering incriminating evidence “is something

else.” 63 The objective purpose in that instance is to obtain information via the

dog’s contraband detection ability. While a person may not have a reasonable

59
Id. at 5-6; see also State v. Rendon, 477 S.W.3d 805, 811 (Tex. Crim. App. 2015) (applying
Jardines and concluding bringing a drug-dog up to a front door for the purpose of conducting
a canine-narcotics sniff was a search in violation of the Fourth Amendment).

60
Id. at 6-7.

61
Id. at 6.

62
Id. at 7.

63
Id. at 8-9.
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expectation of privacy in contraband, a person may still have a constitutionally

protected property interest in the area where contraband is found. 64

In response to the State’s argument in Jardines that an investigation by

a narcotics-detection dog, by definition, cannot implicate any legitimate

privacy interest, the Court explained it did not need to consider whether there

was an expectation-of-privacy violation because it was sufficient “[t]hat the

officers learned what they learned only by physically intruding on Jardines’

property to gather evidence” to determine that a search occurred. 65 Likewise,

in response to the State’s argument that forensic dogs have been commonly

used for centuries, the Court noted when the government physically intrudes

to gather evidence, the antiquity of the tools – in this case a drug-sniffing dog,

is irrelevant. 66 In Jardines, the Court held there was a Fourth Amendment

search because there was an unlicensed physical intrusion into a

constitutionally protected area so the Court did not need to consider the test

applied in Katz. 67

64
Id. at 11 (“Thus, we need not decide whether the officers’ investigation of Jardines’ home
violated his expectation of privacy under Katz.”).

65
Id. (“The Katz reasonable-expectations test ‘has been added to, not substituted for,” the
traditional property-based understanding of the Fourth Amendment, and so is unnecessary to
consider when the government gains evidence by physically intruding on constitutionally
protected areas.”).

66
Id.

67
Id. at 11 (“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps
easy cases easy. That the officers learned what they learned only by physically intruding on
Jardines’ property to gather evidence is enough to establish that a search occurred.”).
Organ -- 21

This Court has also applied the physical-intrusion theory in Jardines to

hold that taking a drug-detection dog to sniff the exterior of an apartment

home’s front door was an unlawful search. 68 In State v. Rendon, law

enforcement was investigating the defendant on suspicion of drug activity and

took a drug-detection dog to the front door of his apartment on a semi-private

upstairs landing. 69 The dog gave a positive, which was used to establish

probable cause for a search warrant for the apartment. 70 Considering Jardines

and applying Fourth Amendment’s “property-rights baseline,” this Court held

that taking the trained narcotics-detection dog to the constitutionally

protected area of the home’s curtilage was for the express purpose of

conducting an open-air sniff, a Fourth Amendment search. 71 The Court held

any evidence obtained as a result of this trespass should be suppressed. 72

With these Fourth Amendment principles in mind, we turn to the case

before us. This case is easily resolved by applying the physical-intrusion

principles laid out in Jones and Jardines. Because law enforcement physically

intruded into a constitutionally protected area to obtain information, we hold

there was a Fourth Amendment search.

68
Rendon, 477 S.W.3d 805, 810 (Tex. Crim. App. 2015).

69
Id. at 806-807.

70
Id.

71
Id. at 810.

72
Id.
Organ -- 22

Analysis

It was established in Caballes that the routine open-air sniff procedure

of walking a drug-detection dog around the exterior of a lawfully seized vehicle

raises no constitutional privacy concern. But the instant case differs from

Caballes because here the dog’s nose entered the vehicle’s interior several

times through the open passenger side window during the open-air sniff.73

The trial court’s finding that Jaks’s nose intruded into the interior of the vehicle

is supported by video and testimonial evidence, and it is undisputed that the

dog’s nose entered the vehicle interior before police had probable cause to

enter the vehicle. 74 Thus, we are considering whether the intrusion of the

dog’s nose into the vehicle’s interior amounted to a constitutional violation.

We conclude it does.

As the court of appeals recognized, applying the physical-intrusion

principles set out in Jones, and applied in Jardines, makes the case at bar “a

straightforward one.” 75 “It is beyond dispute that a vehicle is an ‘effect’”

meaning an enumerated area protected by the Fourth Amendment. 76 “[W]hen

the Government obtained information by physically intruding on . . . effects,

a search within the original meaning of the Fourth Amendment has

73
Organ, 697 S.W.3d at 919.

74
Id.

75
Organ, 697 S.W.3d at 921 (citing Jardines, 569 U.S. at 5).

76
Jones, 565 U.S. at 404.
Organ -- 23

undoubtedly occurred.” 77 The placement of a GPS device onto a vehicle to

gather information, e.g, the vehicle’s movements, was a physical intrusion in

Jones. 78 A drug-detection dog entering and occupying the front porch area of

a home was a trespassory intrusion onto a protected area, the home’s

curtilage, in Jardines. 79 The Court recognized in Jardines that the use of

trained drug-dogs to investigate an area reveals an objective purpose to

search or gather incriminating evidence. 80 It follows that a drug-detection

dog entering the interior of a vehicle during an open-air sniff for narcotics is a

physical intrusion into a constitutionally protected effect the purpose of which

is to search for incriminating scent evidence. 81

This is consistent with our recognition that an officer is not permitted to

lean into the interior of a vehicle without probable cause. 82 In Smith v. State,

an officer approached several men in a parking lot when one of them sat down

on the front seat of an automobile and appeared to put something under

seat. 83 The officer was suspicious and, ultimately, he leaned into the vehicle

77
Jardines, 569 U.S. at 5 (citing Jones, 565 U.S. at 406, n. 3).

78
Jones, 565 U.S. at 404-05.

79
Jardines, 569 U.S. at 6.

80
Id. at 9-10.

81
This conclusion is supported by Deputy Kern’s testimony that the dog was “sticking his head
up by the window and getting huge whiffs of whatever was inside of the vehicle.”

82
Smith v. State, 542 S.W.2d 420, 421 (Tex. Crim. App. 1976).

83
Id. at 421.
Organ -- 24

and looked under the front seat where he found marijuana. 84 The Court

concluded this was an impermissible search without probable cause and held

the evidence should be excluded. 85 The State concedes an officer sticking his

head inside of a car intrudes into a protected area but argues that a dog is

unable to relay information back to the police. We disagree. The dog’s purpose

is to discover incriminating evidence, namely, the scent of narcotics it is

trained to detect. That identification of such a scent is relayed to the police

by way of the conditioned responsive behavior, which is why such alerts

provide probable cause to search. 86

A drug-sniffing dog is a tool of law enforcement. 87 And the purpose of

using this tool is obtaining information through the dog’s odor detection

abilities. 88 Here, law enforcement obtained information by way of the dog’s

84
Id.

85
Id. at 422.

86
State v. Weaver, 349 S.W.3d 521, 527-28 (Tex. Crim. App. 2011) (“it is generally accepted
that a positive alert by a certified drug-dog is usually enough, by itself, to give officers
probable cause to search”).

87
Jardines, 569 U.S. at 12-13 (Kagan, J., concurring) (“As this Court discussed earlier this
Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in
distinctive ways to specific scents so as to convey clear and reliable information to their human
partners.”) (citing Florida v. Harris, 568 U.S. 237, 240 (2013)).

88
Id. at 8-9 (recognizing that “the introduction of trained police dogs to explore an area in
hopes of discovering incriminating evidence” is unlike the customary norm of allowing visitors
to one’s front door and determining that the officer’s behavior “objectively reveals a purpose
of conduct a search”). Here, Trooper Cornell testified that he believed there were narcotics
in the vehicle and, after consent to search was denied, he requested the canine officer run
his dog. There can be little doubt this open-air sniff was done for the purpose of obtaining
information.
Organ -- 25

entry into the vehicle. Because the government obtained information by

physically intruding into Appellee’s vehicle, a search “undoubtedly occurred.” 89

Counter Arguments

The State argues that no search occurred under either a property-based

or a privacy-based theory. The State also argues there was no trespass

because the dog’s intrusion through the open car window’s boundary is not a

“breaking of the close,” or a common law trespass to chattel, and the dog’s

mere touching of the car is not sufficient without harm or damages. In

essence, the State argues, in several different iterations, that there was not a

sufficient trespass recognized in common-law to warrant concluding that there

was a property-based intrusion. Next, the State argues that because the dog’s

intrusion was an instinctive impulse, it was not done for the purpose of

obtaining information, and the conduct should not be attributed to law

enforcement absent some other misconduct or harm. The State notes that

there is no reasonable expectation of privacy in contraband and argues that

under either theory the nose intrusion was not unreasonable. Finally, the

State argues that even if an unreasonable search occurred, it should not result

in the exclusion of the evidence seized. We are not persuaded by these

arguments and take each in turn to explain why.

89
Jones, 565 U.S. at 406, n. 3 (“Whatever new methods of investigation may be devised, our
task, at a minimum, is to decide whether the action in question would have constituted a
“search” within the original meaning of the Fourth Amendment. Where, as here, the
Government obtains information by physically intruding on a constitutionally protected area,
such a search has undoubtedly occurred.”).
Organ -- 26

An actionable common-law trespass
cause of action is not required

The State argues that there was not a physical-intrusion pursuant to

Jones because there was not a common-law “breaking-of-the-close” under

trespass law. At common law, the State asserts, a trespass across an invisible

boundary into a property’s airspace, could be prosecuted. 90 But this type of

action was not applicable to chattel such as a vehicle. Rather, a trespass to

personal property required a touching, which Appellee did not complain of at

trial, or damage, which did not occur. The State asks us to conclude there

was no physical intrusion because there was not a prosecutable trespass to

land or an otherwise tortious trespass to chattel. But, as the Supreme Court

recognized in Jones, the existence of an exact 18th-century analog is not

required. 91 Rather, the task is to determine whether the government

physically intruded on a constitutionally protected area for the purpose of

obtaining information. 92 If so, a search has occurred because, at a minimum,

there was an 18th century guarantee of protection against such a search. 93

90
See Dobbs, D., The Law of Torts, § 5.2 n. 13 (West 2016) (“Early common law envisioned
the plaintiff’s land as an enclosed parcel and required an entry that ‘broke the close.’”).

91
Jones, 565 U.S. at 406 n. 3. (responding Justice Alito’s concurring argument that “it is
almost impossible to think of late–18th—century situations that are analogous” to the
placement of a GPS-tracking device on a vehicle, the Court said it was “quite irrelevant
whether there was an 18th-century analog” to an investigatory technique).

92
Id. at 404-05.

93
Id. at 406 n. 3.
Organ -- 27

As discussed above, a vehicle is an effect protected by the Fourth

Amendment. 94 There was an entry into the vehicle’s interior, which is a

physical intrusion into a protected area, even if a common-law, breaking-of-

the-close trespass action only applied to land. Long ago, the Supreme Court

recognized that the Fourth Amendment’s guarantees do “not turn upon the

technicality of a trespass,” because “[i]nherent Fourth Amendment rights are

not inevitably measurable in terms of ancient niceties of tort or real property

law.” 95 Rather, such rights are “based upon the reality of an actual intrusion

into a constitutionally protected area.” 96 Because the physical intrusion into

a protected area was for the purpose of obtaining information, there was a

search.

This is consistent with the Supreme Court’s holding in Kyllo v. United

States, that the use of a thermal imaging device, to detect whether heat

consistent with the use of marijuana grow lamps was present inside of a

residence, was a physical intrusion “search.” 97 A drug-detection dog, like a

thermal imaging device, is a sense-detection tool. And, in Kyllo, the Supreme

Court concluded that “obtaining by sense-enhancing technology any

information regarding the interior of the home that could not otherwise have

94
Jones, 565 U.S. at 404.

95
Silverman v. United States, 365 U.S. 505, 511-12 (1961).

96
Id. at 512.

97
Kyllo v. United States, 533 U.S. 27, 40 (2001).
Organ -- 28

been obtained without physical ‘intrusion into a constitutionally protected

area’ constitutes a search—at least where (as here) the technology in question

is not in general public use.” 98 Furthermore, we have already recognized that

an officer leaning into a car and looking under the front seat was a search

conducted in violation of the Fourth Amendment. 99 If an officer cannot lean

through a car’s open window to search the interior of the car without violating

the Fourth Amendment (as the State concedes), the officer cannot use a tool

to do so either.

For the same reasons, we reject the State’s argument that, because

there was no common-law, trespass-to-goods, no search occurred. That

Jaks’s nose did not dispossess the vehicle from its owner is not germane. The

State concedes we need not determine whether Jaks’s touching of the vehicle

itself suffices as a trespass either. 100 But if we were to accept the State’s

argument that there was no intrusion here because Jaks did not dispossess,

damage, or touch the vehicle, officers would be permitted to lean in through

98
Id. The Court in Jardines recognized that the ordinary person would find it “‘a cause for
great alarm’ to find a stranger snooping about his front porch with or without a dog.” Jardines,
569 U.S. at 8-9, n. 2 & 3. We think it analogous to say that the general public would find it
a great alarm for a trained drug-detection dog to enter its vehicles.

99
Smith, 542 S.W.2d at 421.

100
The State argues that because the trial court and court of appeals focused on Jaks’s nose
intruding through the open window as the basis for the Fourth Amendment violation, we need
not consider whether Jaks repeatedly jumping up on the car or possibly setting a paw just
inside the vehicle’s interior was a Fourth Amendment violation. We agree this is not relevant
because Jaks’s intrusion through the window into the vehicle’s interior for the purpose of
obtaining information is sufficient to establish a Fourth Amendment search.
Organ -- 29

open car windows to investigate whatever they could see or smell from that

purview without the same being considered a “search.” 101 Again, as the State

concedes, an officer would not be permitted to do so, and we reject the State’s

argument that the situations are not analogous because trained drug-

detection dogs do not relay information.

We need not determine whether Appellee had
a reasonable expectation of privacy

The State next argues that Jaks’s intrusion was not a search, pursuant

to Katz’s reasonable-expectation-of-privacy test, because Appellee had no

reasonable expectation of privacy in contraband. 102 But Katz’s reasonable-

expectation-of-privacy test was “added to, not substituted for the property-

based understanding of the Fourth Amendment, and so it is unnecessary to

consider when the government gains evidence by physically intruding on

constitutionally protected areas.” 103 Thus, in Jardines it was not necessary to

decide whether taking a drug-dog onto a home’s front porch violated the

101
But see New York v. Class, 475 U.S. 106, 114-15 (1986) (holding that an officer’s reaching
into a car’s interior was a “search”); Smith, 542 S.W.2d at 422 (officer leaning inside an open
car door and looking under the front seat was a search). The State concedes that a dog
sticking its head inside a car intrudes into an area regarded as having privacy protections that
would constitute a privacy violation if an officer did it.

102
Katz, 389 U.S. at 360.

103
Jardines, 569 U.S. at 11 (citing Jones, 565 U.S. at 409).
Organ -- 30

defendant’s reasonable expectation of privacy under Katz. 104 So, we need not

consider whether Appellee’s reasonable expectation of privacy was violated.105

A drug-detection dog is a tool of law enforcement
used to obtain information

The State also argues that the intrusion was instinctive impulse, not

encouraged or facilitated by an officer, and thus, not done for the purpose of

obtaining information. The State concedes the open-air sniff was done for the

purpose of obtaining information but argues that the physical intrusion was

not essential to the performance of the open-air sniff and was not obtained

through misconduct such as the officer’s encouragement and thus, should not

be considered a search. The State is attempting to draw too fine a line the

result of which would be unworkable. The existence of a Fourth Amendment

violation cannot turn on the state of mind of the drug-sniffing dog.

The dog’s intrusion into the vehicle’s interior occurred during the open-

air sniff for narcotics, which was done to obtain information. And the record

104
Id. We reached the same conclusion in Rendon. Rendon, 477 S.W.3d at 811 (“As was the
case in Jardines, given our conclusion that the officers physically intruded into the curtilage
of appellee’s home for the purpose of gathering evidence, we need not decide whether the
officer’s conduct in this case also violated his expectation of privacy, which might be an
alternative basis for upholding the judgment of the court of appeals.”).

105
However, it is worth noting that a driver generally has a reasonable expectation of privacy
in a vehicle he is driving. See Class, 475 U.S. at 114 (“While the interior of an automobile is
not subject to the same expectations of privacy that exist with respect to one’s home, a car’s
interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable
intrusions by the police”); see also Matthews v. State, 431 S.W.3d 596, 607 (Tex. Crim. App.
2014) (recognizing that a person driving a borrowed car generally has a reasonable
expectation of privacy in that vehicle); Jones, 565 U.S. at 404, n. 2 (recognizing that if Jones
was not the owner, he had at least the property rights of a bailee). While the vehicle was
registered to the passenger, Appellee as the driver had a reasonable expectation of privacy
in the vehicle.
Organ -- 31

supports the trial court’s finding that it was not until immediately after the

intrusion into the vehicle that Jaks gave a positive alert. 106 Deputy Kern

testified that Jaks’s act of returning to the window and putting his paws on

the car to stick his nose inside was an abnormality and not a conditioned

response. But he also testified that it was not until after the dog stuck his

head through the window, getting “huge whiffs of whatever was inside of the

vehicle,” that the dog showed his final passive response. Furthermore, the

State disregards the fact that the officer instructed Jaks, by knocking on the

passenger side door and verbally commanding him to “check,” to sniff the

area. 107 Under these circumstances, we decline the State’s invitation to

dissect the intrusion from the open-air sniff and hold that this discrete part of

the interaction was not done for the purpose of obtaining information. The

intrusion into the protected area occurred during the open-air sniff, which was

done to obtain information, and law enforcement used the information

obtained immediately thereafter to establish probable cause to search the

vehicle.

Moreover, the cases relied upon by the State do not support its

arguments. First, the State cites United States v. Keller to support the

106
Perhaps the result would be different if the dog completed an exterior open-air sniff around
the vehicle, gave a positive alert through a conditioned responsive behavior, and then
intruded physically into the car. But these are not the facts before us today.

107
We are not suggesting that the officer acted improperly by leading Jaks around the vehicle,
but we highlight the instruction to illustrate the difficulty with determining which specific
behaviors during an open-air sniff are instinctive rather than investigatory.
Organ -- 32

contention that Jaks’s conduct was merely impulsive and incidental absent

police misconduct. 108 In Keller, the Fifth Circuit held it was not plain error for

the district court to conclude that a drug-dog’s placing his paws on Keller’s

vehicle in the primary inspection lane at an immigration checkpoint was not a

Fourth Amendment search. 109 The court reasoned that “absent police

misconduct” the dog’s “instinctive actions” of placing his paws on the vehicle’s

exterior was a “mere touching” and not an unconstitutional Fourth

Amendment search. 110 The Fifth Circuit compared the dog’s behavior to an

officer leaning on the door of a car. 111

But Keller is factually distinguishable because the intrusion at issue here

was not a mere touching of the vehicle’s exterior. Jaks’s nose intruded into

the interior of the car. Additionally, the federal cases cited by the State do

not support its position that police misconduct is required or that the dog’s

conduct was not for the purpose of obtaining information. For example, in

United States v. Guidry, a drug-sniffing dog alerted prior to the dog’s head

entering the car and thus, officers already had probable cause to search the

interior. 112 Furthermore, Guidry and the other cases cited by the State pre-

108
United States v. Keller, 123 F.4th 264, 268 (5th Cir. 2004).

109
Id. at 268.

110
Id.

111
Id.

112
United States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016) (recognizing that “as the point
that [the drug-dog’s] head supposedly entered Guidry’s car, the officer had probable cause
Organ -- 33

date or fail to consider the principles laid out in Jardines and Jones. 113 But

these Fourth Amendment principles are clear; a search has occurred when the

government physically intrudes on a constitutionally protected area for the

purpose of obtaining information. 114 While property rights are not the sole

measure of Fourth Amendment violations, they provide the straightforward

baseline. 115

The trial court properly excluded the evidence seized

Finally, the State argues that even if there was a search under a

property or privacy theory, the search was reasonable. The State argues that

to search the interior because [the dog] indicated that the car contained drugs while sniffing
the car’s perimeter).

113
Id.; see also United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012) (pre-Jardines case
holding a drug-dog’s sniff inside of a vehicle after instinctively jumping into the car was not a
search but failing to discuss Jones); United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir.
2010) (pre-Jones and Jardines holding there was “no error in the District Court’s finding that
[the drug dog] altered to narcotics in Pierce’s glove box, jumped through an open door and
alerted . . . and in so doing acted instinctively and without facilitation by his handler . . .
conclud[ing] that [the] interior sniffs, as a natural migration from his initial exterior sniffs did
not constitute a search requiring a warrant or probable cause”); United States v. Vasquez,
555 F.3d 923, 930 (10th Cir. 2009) (pre-Jones and Jardines upholding the legality of an
interior sniff when the dog’s jump into the car was instinctual rather than orchestrated and
the officer did not ask the driver to open the point of entry but also noting the district court’s
finding that there were alerts outside of the vehicle was not clearly erroneous); United States
v. Moore, 795 F.3d 1224, 1232 (10th Cir. 2015) (relying on pre-Jones and Jardines precent
to conclude, alternatively, that if the dog’s alert did not establish probable cause until after
he entered the vehicle, the Fourth Amendment was not violated although finding nonetheless
that the dog alerted prior to entry); United States v. Stone, 866 F.2d 359, 364 (10th Cir.
1989) (pre-Jones and Jardines holding that, pursuant to the automobile exception, there was
no Fourth Amendment violation when a dog jumped into a vehicle’s hatchback because the
officer did not encourage the dog’s action).

114
Jardines, 569 U.S. at 5 (citing Jones, 565 U.S. at 406).

115
Id. (citing Knotts, 460 U.S. at 286 (Brennan, J., concurring in the judgment) (recognizing
Fourth Amendment protections apply “when the Government does engage in [a] physical
intrusion of a constitutionally protected area”)).
Organ -- 34

the intrusion was minimal, that it conveyed limited information, and that

Appellee had little privacy interest in the odors emanating from the vehicle

particularly because the officer did not cause the window to be left open during

the sniff. The investigating officer approached the passenger window during

the traffic stop, though it is true he did not instruct the passenger to leave the

window down during the open-air sniff. But we decline to find the intrusion

minimal given that Jaks physically intruded into the vehicle on three occasions.

While the State may be correct that, on appeal, Appellee did not contest the

conclusion that the officer had reasonable suspicion, a warrant or probable

cause was required to conduct a Fourth Amendment search. 116 The State also

argues again that law enforcement should not be liable for the dog’s instinctive

conduct in this case. But, as we have already determined, the dog was acting

as a tool of law enforcement, and we decline to carve out some of the dog’s

behavior as instinctive while it is being used to obtain information. Because

there was a governmental intrusion into a protected area for the purpose of

obtaining information, which was used to establish probable cause, there was

a Fourth Amendment search.

Finally, the State argues that even if there was an unreasonable search,

the suppression of evidence “makes little sense” because the dog has its own

116
Marcopoulos v State, 538 S.W.3d 596,599 (Tex. Crim. App. 2017) (“Pursuant to the Fourth
Amendment, a warrantless search is per se unreasonable unless it falls within a warrant
exception. The automobile exception allows for the warrantless search of an automobile ‘if it
is readily mobile and there is probable cause to believe it contains contraband.’”) (Tex. Crim.
App. 2017).
Organ -- 35

agency and thus, the justifications for suppression such as deterrence of

official misconduct do not apply with equal force. The State points the Court

to State v. Mumford, an Iowa state case, that held that a dog’s “fleeting touch

of the passenger door and de minimis intrusion into the vehicle cabin through

a window left open by a passenger does not justify the exclusion of

evidence.” 117 But the majority in that case failed to address the physical-

intrusion principles in Jones and Jardines as noted by the dissent in

Mumford. 118 Furthermore, the court described the intrusion into the vehicle’s

interior in that case as “momentary” and “almost imperceptible.” 119 Here,

Jaks returned to the window three times, each time sticking his head into the

vehicle’s interior as evidenced by screen captures from the State’s exhibit

included above. Law enforcement was utilizing Jaks to obtain information

during an open-air sniff, he obtained that information by physically intruding

upon a constitutionally protected area. The dog’s alert was used as probable

cause to search the vehicle. As a result, the trial court properly suppressed

the evidence obtained from that search. 120

117
State v. Mumford, 14 N.W.3d 346, 353 (Iowa 2024), cert. denied, 2025 WL 2823719
(2025).

118
Id. at 357 (Oxley, J., dissenting) (“Jones and Jardines make clear that a drug dog’s
trespass into a car during an exterior sniff converts what would be a non-search under
Caballes into a search”) (citing State v. Randall, 496 P.3d 844, 853 (2021)).

119
Id. at 348.

120
Segura v. United States, 468 U.S. 796, 804 (1984) (“[T]he exclusionary rule reaches not
only primary evidence obtained as a direct result of an illegal search or seizure . . . but also
evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous
tree.’”).
Organ -- 36

Conclusion

The drug-detection dog’s repeated physical intrusion into the interior of

Appellee’s vehicle during an open-air sniff for contraband amounted to a

Fourth Amendment Search conducted without probable cause. Consequently,

the trial court acted within its discretion when it granted Appellee’s motion to

suppress the evidence. We affirm the court of appeals.

Delivered: October 30, 2025

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