Thus far the Washington courts have refused to adopt the United States Supreme Court's blanket rule that dog sniffs are not searches. State v. Boyce, 44 Wn. App. 724, 729, 723 P.2d 28 (1986). Instead, our courts have employed a more conservative approach to dog sniffs and require an examination of the circumstances of the sniff.
In State v. Wolohan, 23 Wn. App. 813, 598 P.2d 421 (1979), review denied, 93 Wn.2d 1008 (1980), we held that the canine sniff of a package sent via a common carrier, a Greyhound bus, was not a search under the Fourth Amendment because the intended recipient had no reasonable expectation of privacy in the bus station where the sniff occurred or in the area surrounding the package. Then, in State v. Boyce, 44 Wn. App. 724, 726, 723 P.2d 28 (1986), a defendant contended that the canine sniff of her safety deposit box without a warrant violated article I, section 7. Boyce, 44 Wn. App. at 728-30. Engaging in a Gunwall analysis and considering Wolohan, Division One concluded that the canine sniff was not a search under article I, section 7. The court noted that the officer had permission to be in the bank vault area; the defendant lacked control of the bank area where her safety deposit box was; and the intrusion involved in a canine sniff of the air outside a safety deposit box is minimal.
Whether a dog sniff is a search under article I, section 7 depends on the circumstances of the sniff itself. State v. Boyce, 44 Wn. App. 724, 729, 723 P.2d 28 (1986); State v. Wolohan, 23 Wn. App. 813, 820, 598 P.2d 421 (1979), review denied, 93 Wn.2d 1008 (1980); State v. Stanphill, 53 Wn. App. 623, 630, 769 P.2d 861 (1989); Hartzell, 156 Wn. App. at 929. As such, each case requires "an inquiry into the 'nature of the intrusion into the defendant's private affairs that is occasioned by the canine sniff.'"
Whether a dog sniff is a search under article I, section 7 depends on the circumstances of the sniff itself. State v. Boyce, 44 Wn.App. 724, 729, 723 P.2d 28 (1986); State v. Wolohan, 23 Wn.App. 813, 820, 598 P.2d 421 (1979), review denied, 93 Wn.2d 1008 (1980); State v. Stanphill, 53 Wn.App. 623, 630, 769 P.2d 861 (1989); Hartzell, 156 Wn.App. at 929.
A dog sniff of a place where the defendant does not have a reasonable expectation of privacy does not constitute a search. State v. Bovce. 44 Wn.App. 724, 723 P.2d 28 (1986). In Bovce. the dog sniffed a bank safe deposit box.
Similarly, under the state constitution, whether a "canine sniff is a search depends on the circumstances of the sniff itself." State v. Hartzell, 156 Wn.App. 918, 929, 237 P.3d 928 (2010) (citing State v. Boyce, 44 Wn.App. 724, 729, 723 P.2d 28 (1986)). "[A]s long as the canine 'sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.'"
But article I, section 7 provides broader protection in this context. State v. Boyce, 44 Wn.App. 724, 728-30, 723 P.2d 28 (1986).
Hartzell, 156 Wn.App. at 929. The court in Hartzell stated the general rule: "[A]s long as the canine 'sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.'" Id. (quoting State v. Boyce, 44 Wn.App. 724, 730, 723 P.2d 28 (1986)).
Unlike the United States Supreme Court, Washington courts, when applying Washington law, have not adopted any blanket rule rejecting a dog sniff as constituting a search. State v. Boyce, 44 Wn.App. 724, 729, 723 P.2d 28 (1986). Instead, in Washington, whether a dog sniff amounts to a search depends on the privacy rights at stake due to the intrusion.
Whether a dog sniff amounts to a search depends on the privacy rights at stake due to the intrusion. State v. Boyce, 44 Wn.App. 724, 729, 723 P.2d 28 (1986). As long as the canine sniffs an object from an area where the defendant lacks a reasonable expectation of privacy and the canine is minimally intrusive, no search occurs.