IN THE
Court of Appeals of Indiana Juan C. Ocampo, FILED Aug 29 2025, 9:23 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
August 29, 2025 Court of Appeals Case No. 24A-CR-2785 Interlocutory Appeal from the Clark Circuit Court The Honorable Bradley B. Jacobs, Judge Trial Court Cause No. 10C02-2110-F2-39
Opinion by Judge DeBoer Chief Judge Altice and Judge Pyle concur.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 1 of 22 DeBoer, Judge.
Case Summary [1] After being charged with several drug offenses, Juan Ocampo filed a motion to
suppress evidence obtained during a search of his vehicle conducted by officers
after a K9 entered the open passenger’s door, sniffed throughout the vehicle’s
interior, and eventually alerted to the presence of drugs inside.
[2] In this interlocutory appeal, Ocampo challenges the trial court’s denial of his
motion to suppress, arguing (1) the K9’s entry into his vehicle was an unlawful
search in violation of the Fourth Amendment to the United States Constitution
and Article 1, Section 11 of the Indiana Constitution and (2) that even if officers
had probable cause to conduct an otherwise lawful search, they nonetheless
exceeded the scope of a constitutionally permissible search by dismantling
components of the vehicle.
[3] This appeal presents a matter of first impression in Indiana: the legality of a
K9’s interior sniff of a vehicle before probable cause has been established to
conduct a search. Joining the federal circuit courts that have addressed the
issue, we adopt the “instinctive entry rule,” under which a K9’s instinctive entry
into a vehicle does not implicate the Fourth Amendment so long as it is not
directed, encouraged, or facilitated by officers.
[4] Applying this rule to the circumstances of this case, we find that the officers
facilitated the K9’s entry into Ocampo’s vehicle and, consequently, searched
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 2 of 22 the vehicle without probable cause in violation of the Fourth Amendment.
Accordingly, we reverse and remand.
Facts and Procedural History [5] In the fall of 2021, the Jeffersonville Police Department received a tip from a
Louisville Metro Police Department detective that Ocampo was driving
southbound on I-65 in a black 2012 Dodge Caravan. According to the
detective, Ocampo’s vehicle was the subject of “a drug investigation[.]”
Transcript at 35.
[6] That evening, Jeffersonville Police Officers Levi James and Hunter Powell
“staged an area” on I-65 near “the Scott County and Clark County borders and
waited for Mr. [Ocampo] and the vehicle to arrive[.]” Id. at 35 With Officer
Powell was his K9 partner, Swag. Swag is trained to detect narcotics and alert
officers to the presence of “four odors: marijuana, heroin, cocaine, and
methamphetamine.” Id. at 6.
[7] As Ocampo drove through the staged area, Officer Powell saw the vehicle
“commit infractions[.]” Id. at 7. Officer Powell radioed that information to
Officer James, who pulled Ocampo over. As Officer James explained the
reason for the stop to Ocampo and his passenger, Amanda De La Torre, Officer
Powell arrived on the scene and approached the passenger’s side of the vehicle.
[8] Shortly after Officer Powell’s arrival, Officer James asked Ocampo to step out.
Officer Powell then began speaking with De La Torre, who remained seated in
the passenger’s seat. State’s Exhibit A (first file) at 2:50. De La Torre cracked Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 3 of 22 open the passenger door, presumably to facilitate this conversation since her
window was not rolled down. Id. at 2:51. Officer Powell then opened the door
fully. Id. at 3:10.
[9] After a brief conversation, Officer Powell asked De La Torre to step out and
come to the back of the vehicle. Id. at 3:40. Neither De La Torre nor Officer
Powell closed the passenger door. Id. However, Officer Powell did shut the
driver-side door, which Ocampo and Officer James had similarly left open. Id.
at 3:55.
[10] Officer James asked Officer Powell to have Swag “perform an exterior vehicle
sniff[.]” Tr. at 8. Officer Powell got Swag from his police car and brought him
to the front of Ocampo’s vehicle. From there, Swag began an on-lead 1 exterior
sniff, moving counterclockwise around the vehicle. Swag did not alert for the
presence of narcotics during this exterior sniff.
[11] As Swag neared the open passenger door, Officer Powell removed his lead.
State’s Ex. A (first file) at 6:10. According to Officer Powell, he took Swag’s
lead off
at that point since, when he made the intention to enter the vehicle I will take him off the lead he was on[.] … I don’t want to allow him to continue to search inside the vehicle on lead due to getting hung up around armrests or the seats or stuff like that, so when I
1 As used in this Opinion, “lead” is synonymous with “leash,” so “on-lead” means the same as “on a leash.”
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 4 of 22 say take him off lead to allow him to continue his search in the vehicle.
Tr. at 8 [sic throughout]. Officer Powell further explained that “if my dog
becomes hung up around the armrest, a headrest, around a seat, now my dog
cannot complete his search[.] [H]e is now hung up he can’t move[.] [T]hat’s
why I take him off lead and allow him to search without anything holding him
back.” Id. at 31-32. 2
[12] With his lead removed, Swag jumped through the open passenger door and
climbed into the second row of seats. State’s Ex. A (first file) at 6:10. As Swag
sniffed behind the driver’s seat, Officer Powell leaned into the vehicle and
shone a flashlight on that area. Id. at 6:20. Swag then moved toward the front
of the vehicle and sniffed between the driver’s and passenger’s seats. Id. at 6:26.
Again, Officer Powell leaned into the vehicle with his flashlight to observe. Id.
at 6:31.
[13] Swag eventually “moved towards the rear of the vehicle” where he alerted to
the presence of narcotics in the third row of seats and “scratch[ed] at one of the
body plastics there on the passenger side[.]” Tr. at 9. As the State concedes,
“[t]he body camera video shows that Officer Powell leaned into the vehicle to
2 The Transcript of the hearing on Ocampo’s motion to suppress does not include periods or other punctuation marks at the end of sentences. For clarity, we have supplied punctuation in brackets at the logical end of sentences when quoting from the Transcript.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 5 of 22 see better where Swag was alerting[.]” Appellee’s Brief at 15 n. 1; see also
State’s Ex. A (first file) at 7:07.
[14] The officers searched the vehicle after Swag’s positive alert. As the officers
searched, they noted that several side panels were loose, including the panel
where Swag had alerted. Officer James’s Arrest Report Narrative describes his
actions after discovering the loose panel as follows:
I removed the panel to find wiring with a fuse and switch attached and an audio speaker. The speaker did not have any screws attaching it. I was unable to remove it as it was secured to the panel from the rear. I observed a metal plate affixed to the back of the speaker where upon manipulating the speaker to see behind it I observed a brown plastic grocery sack down below the speaker. There were obvious modifications to the panel surrounding the speaker as well as to the speaker to create a hidden compartment. I utilized a screwdriver that was in the trunk area to pry the speaker out where I located a modified locking mechanism inside the panel. …
I removed the brown plastic bag from the hidden compartment. The brown plastic bag contained an unknown object that was completely wrapped in duct tape. I took the item to my vehicle to unwrap it. Upon removing the duct tape, the item was wrapped in plastic wrap which was removed and revealed a vacuum sealed bag containing dryer sheets. Upon removing the first vacuum sealed bag with dryer sheets I discovered a second vacuum sealed bag containing a brown substance in a cylinder shape wrapped in plastic. I field tested the brown substance which produced a presumptive positive for the presence of heroin.
Appellant’s Appendix Vol. 2 at 4.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 6 of 22 [15] The State charged Ocampo with Count I: Dealing in a Narcotic Drug, a Level 2
felony; 3 Count II: Dealing in Methamphetamine, 4 a Level 2 felony; 5 Count III:
Possession of Methamphetamine, a Level 3 felony; 6 and Count IV: Possession
of a Narcotic Drug, a Level 3 felony. 7 Ocampo filed a motion to suppress
evidence of the narcotics found in the vehicle, arguing that (1) Swag’s interior
sniff was an unlawful search without probable cause and (2) even if the officers
had probable cause to conduct an otherwise lawful search, they exceeded the
lawful scope of that search by removing the loose panel and prying the speaker
out to reveal a hidden compartment where narcotics were ultimately found.
[16] Following a hearing, the trial court denied the motion to suppress. On
Ocampo’s motion, the trial court certified its order for interlocutory appeal, and
we accepted jurisdiction.
Discussion and Decision [17] We review the denial of a motion to suppress “deferentially, construing
conflicting evidence in the light most favorable to the ruling.” Marshall v. State,
117 N.E.3d 1254, 1258 (Ind. 2019) (quoting Robinson v. State, 5 N.E.3d 362, 365
3 Ind. Code § 35-48-4-1(a)(2), (e)(1). 4 While Officer James’s Arrest Report Narrative provides that a field test indicated the presence of heroin, the basis for the methamphetamine charges is not clear from the record before us. 5 I.C. § 35-48-4-1.1(a)(2), (e)(1). 6 I.C. § 35-48-4-6.1(a), (d)(1). 7 I.C. § 35-48-4-6(a), (d)(1).
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 7 of 22 (Ind. 2014)), cert. denied. Generally, the trial court’s decision is reviewed “for
abuse of discretion” and will be “reverse[d] only if [the] ruling is ‘clearly against
the logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting
Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
[18] We note that the facts of this case are largely undisputed. As Ocampo’s counsel
explained to the trial court during the motion to suppress hearing:
I don’t think there is any dispute between the [S]tate and [Ocampo] on what the facts were and the officers were real cool on their reports[.] … [T]hey must have watched the video or whatever and have great memories because … the reports really matched a lot of what the body worn camera show [sic] and the testimony[.] … I think this is mostly about the law.
Tr. at 41 (emphasis added). “Where, as here, our decision concerns application
of the law to undisputed facts, our standard of review is de novo.” Page v. State,
173 N.E.3d 723, 726 (Ind. Ct. App. 2021) (citing Austin v. State, 997 N.E.2d
1027, 1039 (Ind. 2013)). Moreover, “the ultimate determination of the
constitutionality of a search or seizure is a question of law that we consider de
novo.” Carpenter, 18 N.E.3d at 1001.
[19] With this background, we turn to Ocampo’s argument that the officers violated
“the Fourth Amendment [to the United States Constitution] and Article [1],
Section 11 of the Indiana Constitution[.]” Appellant’s Br. at 8. Though “‘the
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 8 of 22 text of Article 1, Section 11 is nearly identical to the Fourth Amendment, 8
Indiana courts interpret and apply it 'independently from federal Fourth
Amendment jurisprudence.’” Lundquist v. State, 179 N.E.3d 1051, 1054 (Ind.
2021) (quoting McLain v. State, 963 N.E.2d 662, 668 (Ind. Ct. App. 2012), trans.
denied). When a “defendant [] allege[s] both federal and state constitutional
violations[,] … we engage in independent examinations of the defendant’s
claims based upon Section 11 and the Fourth Amendment.” Holder v. State, 847
N.E.2d 930, 935 (Ind. 2006). Finding our examination of the Fourth
Amendment dispositive, we focus our analysis there.
1. Fourth Amendment [20] Generally, “the Fourth Amendment prohibits warrantless searches, but there
are exceptions to the warrant requirement.” Myers v. State, 839 N.E.2d 1146,
1150 (Ind. 2005). “The ‘automobile exception’ to the warrant requirement
allows police to search a vehicle without obtaining a warrant if they have
probable cause to believe evidence of a crime will be found in the vehicle.”
8 The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Similarly, Article 1, Section 11 of the Indiana Constitution establishes: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Ind. Const. art. 1, § 11.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 9 of 22 State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind. 2010). Under this principle, the
“police need not obtain a search warrant before searching a vehicle that they
have probable cause to believe contains illegal drugs.” Myers, 839 N.E.2d at
1151.
A. Interior Sniff
[21] It is well settled that “[a] dog sniff of the exterior of the vehicle indicating the
presence of illicit substances provides probable cause for a warrantless search of
the interior of the vehicle under the automobile exception.” Harbaugh v. State,
96 N.E.3d 102, 106 (Ind. Ct. App. 2018) (emphasis added), trans. denied.
Moreover, “a dog sniff is not a search protected by the Fourth Amendment”
and “no degree of suspicion is required to summon [a] canine unit to the scene
[of a lawful traffic stop] to conduct an exterior sniff of the car[.]” Hobbs, 933
N.E.2d at 1286 (emphasis added).
[22] In Harbaugh, the defendant, Carmen Harbaugh, appealed her convictions for
various drug offenses, arguing that officers unlawfully searched her vehicle
without probable cause by deploying a K9 into her vehicle. Id. at 106. The
Court of Appeals declined to address this argument, reasoning that "[h]ad there
only been evidence that [the dog] alerted inside the vehicle, this would have
been an issue of first impression in Indiana. However, since the State also
presented evidence [that the dog] alerted outside the vehicle, we need not
address the legality of an interior dog sniff.” Id. at 106-07 (emphasis in original)
(internal citations omitted).
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 10 of 22 [23] But here, unlike Harbaugh, there is no evidence that Swag alerted outside
Ocampo’s vehicle. On the contrary, Officer Powell testified that Swag alerted
for the first time inside the vehicle. Thus, the resolution of this appeal requires
us to examine the legality of Swag’s interior sniff.
[24] Though an Indiana appellate court has yet to address this issue, we observe that
the federal circuit courts have consistently adopted the instinctive entry rule,
under which a K9’s entry into a vehicle is not a Fourth Amendment search
where there “is no indication that the officers intended to facilitate the dog’s
entry into the car.” United States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016),
cert. denied; see also United States v. Pierce, 622 F.3d 209, 214-15 (3d Cir. 2010)
(finding no Fourth Amendment violation where a K9 jumped through an open
car door “without facilitation by [its] handler”); United States v. Sharp, 689 F.3d
616, 620 (6th Cir. 2012) (finding no Fourth Amendment violation where K9
jumped through car window but “officers did not encourage or facilitate the
dog’s jump”), cert. denied; United States v. Lyons, 486 F.3d 367, 373-74 (8th Cir.
2007) (finding no Fourth Amendment violation where K9 stuck its head
through a van’s open window without being directed to do so by officers);
United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (finding no Fourth
Amendment violation where K9 instinctively jumped into open hatchback);
and United States v. Mostowicz, 471 F. App’x 887, 891 (11th Cir. 2012) (finding
no Fourth Amendment violation where K9 entered through door left open by
defendant and the officers did not encourage the jump).
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 11 of 22 [25] We start our review of the federal circuit court case law with the Seventh
Circuit’s opinion in Guidry. 9 There, officers asked the defendant, Jason Guidry,
to step out of his car during a traffic stop. Guidry, 817 F.3d at 1001. Guidry
complied but did not close the door as he stepped out. Id. The officers then
conducted an exterior dog sniff, during which the K9 “indicated an odor of
drugs by sitting down in front of the [driver] door.” Id. at 1002. The K9 then
“got up, approached the car, and, according to Guidry, put his head into the car
through the open door.” Id.
[26] The Seventh Circuit rejected Guidry’s argument that the K9’s entry into the car
violated the Fourth Amendment, reasoning that
[the officer] kept [the dog] on his leash and did not allow him to jump into the car. Moreover, the officers did not open the door— it was Guidry who left it open. Immediately after Guidry exited, [the officer] led [the dog] through her usual circuit, and despite her efforts to keep [the dog] outside of the car, his head allegedly entered it. In sum, the facts of this case are very different from those in [United States v.] Winningham[, 140 F.3d 1328 (10th Cir. 1998) (concluding that officers facilitated a dog’s entry into a vehicle)] and more closely resemble cases where no Fourth Amendment violation was found.
Id. at 1006 (citing Pierce, 622 F.3d at 214-15; Lyons, 486 F.3d at 373-74; and
Stone, 866 F.2d at 363-64).
9 Though not binding on Indiana state courts, “[d]ecisions of the Seventh Circuit are entitled to our respectful consideration[.]” Ind. Dep’t of Pub. Welfare v. Payne, 622 N.E.2d 461, 468 (Ind. 1993), reh’g denied.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 12 of 22 [27] Ocampo’s case is distinguishable from Guidry. We acknowledge that as in
Guidry, De La Torre, not Officer Powell, initially opened the passenger door
and left the door open after stepping out of the vehicle. 10 But that is where the
factual similarities end. Unlike Guidry—where the officer kept the dog on a
leash and tried to stop her from entering the car—Officer Powell removed
Swag’s lead and made no effort to stop him from jumping inside. And while
the dog in Guidry first alerted while outside the car, Swag did not alert until
after jumping inside, and even then, only after conducting an extensive interior
sniff throughout the vehicle.
[28] Thus, we find that unlike Guidry, the circumstances of this case resemble
Winningham. There, the Tenth Circuit found that the officers’ “desire to
facilitate a dog sniff of [a] van’s interior … seem[ed] readily apparent” where
“the officers themselves opened the door” and “then unleashed the dog as the
dog neared the open door.” Winningham, 140 F.3d at 1331 (emphasis in
original). “When the dog reached the open door, he jumped into the van” and
the officers allowed him to “methodically sniff[] the van’s interior.” Id. at 1330.
Though here, De La Torre, not Officer Powell, opened the passenger door, the
Seventh Circuit’s analysis of Winningham against the backdrop of federal case
law makes clear that the relevant inquiry when applying the instinctive entry
10 And while the trial court concluded that Officer Powell prevented De La Torre “from closing the door,” we agree with the trial court that there is no evidence he did so “to facilitate a search[.]” Appellant’s Appendix Vol. 2 at 26. After all, Officer Powell closed the driver-side door, which would be unexpected had he just moments earlier left the passenger door open with the intent to enable Swag to eventually jump inside.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 13 of 22 rule is not whether the officers’ behavior exactly mirrors the circumstances of
any given case, but whether there is an “indication that the officers intended to
facilitate the dog’s entry into the car.” Guidry, 817 F.3d at 1006.
[29] Officer Powell may not have left the passenger door open intending—in that
moment—for Swag to eventually jump through it, but he testified that once
Swag “made the intention to enter” he took Swag “off lead to allow him to
continue his search in the vehicle” without getting caught or hung up on anything
inside. Tr. at 8 (emphasis added). Officer Powell further explained that he took
Swag off lead so that once inside the vehicle, Swag could “search without
anything holding him back[.]” Id. at 32. We cannot say, then, that there is no
indication that Officer Powell intended to facilitate Swag’s entry into Ocampo’s
vehicle. 11
[30] In denying the motion to suppress, the trial court reasoned that it had found
“no caselaw that expressly states removing the leash is ‘facilitating’” and
“decline[d] to create such a rule now.” Appellant’s App. Vol. 2 at 27. But
Guidry and Winningham are explicit that whether an officer removed the K9’s
lead is relevant to determining whether the officer indicated a desire to facilitate
the dog’s entry into a vehicle. Moreover, we agree with the Third Circuit’s
11 Additionally, it is not clear to us, based on our review of Officer Powell’s body-worn camera, that Swag indicated an intention to enter so much as Officer Powell led Swag around the vehicle to the open passenger door. Once Swag’s path became blocked by the open door, he of course would have had to enter it unless Officer Powell led him around it. Officer Powell not only failed to lead Swag around the door, but he also quickly and seamlessly unclipped Swag’s lead to enable him to continue his search inside.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 14 of 22 observation that an instinctive jump “implies the dog enters the car without
assistance, facilitation, or other intentional action by its handler.” Pierce, 622 F.3d
at 214 (emphasis added). 12
[31] Swag did not enter Ocampo’s vehicle without Officer Powell’s involvement.
Officer Powell testified that he knew that Swag was about to jump into the
vehicle and removed Swag’s lead for the express purpose of allowing him to
search inside. Officer Powell further explained that had Swag’s lead not been
removed, he would have gotten “hung up around armrests or the seats or stuff
like that” and would not have been able to freely move around the vehicle. Tr.
at 8. Thus, the act of removing Swag’s lead necessarily facilitated the interior
vehicle sniff and the trial court erred in reaching the opposite conclusion.
B. Fourth Amendment Trespass
[32] We further note that after Swag entered the vehicle, but before he alerted to the
presence of narcotics, Officer Powell leaned into the vehicle several times to
observe Swag’s search. These facts implicate two landmark federal Supreme
Court opinions applying the traditional Fourth Amendment trespass analysis.
See United States v. Jones, 565 U.S. 400, 405 (2012) (“[O]ur Fourth Amendment
jurisprudence was tied to common-law trespass, at least until the latter half of
12 We further agree with the reasoning of Chief Judge Brady of the United States District Court for the Northern District of Indiana that “[a] dog search of the interior of a vehicle is permissible only when officers have probable cause to search the vehicle or where the dog, without the involvement of its handler, ‘instinctively’ jumps into the vehicle.” United States v. Holley-Chambers, No. 1:22-CR-62-HAB, 2023 WL 5091210, at *6 (N.D. Ind. Aug. 8, 2023) (quoting Guidry, 817 F.3d at 1006) (emphasis added).
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 15 of 22 the 20th century.”); see also Florida v. Jardines, 569 U.S. 1, 11 (2013) (explaining
that “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it
keeps easy cases easy.”).
[33] First, in Jones, agents installed a GPS tracking device onto a suspect’s vehicle
while it was parked in a public lot. 565 U.S. at 403. The Court held that the
attachment of the device was an unlawful search, reasoning that “[t]he
Government physically occupied private property for the purpose of obtaining
information. We have no doubt that such a physical intrusion would have been
considered a ‘search’ within the meaning of the Fourth Amendment when it
was adopted.” Id. at 404-05.
[34] Second, in Jardines, detectives entered the curtilage of a suspect’s home 13 where
a drug-sniffing dog alerted to the scent of narcotics coming from under the base
of the front door. 569 U.S. at 3-4. The Court held that because the detectives
physically intruded into property subject to Fourth Amendment protection,
their use of the dog was an unlawful search. Id. at 11-12.
[35] Ocampo contends that Jones and Jardines implicitly overturned the instinctive
entry rule and calls Stone and Sharp “outdated under more recent U.S. Supreme
Court case law[.]” Appellant’s Br. at 15. We do not agree. Had Swag entered
13 “The home’s curtilage encompasses ‘the area outside the home itself but so close to and intimately connected with the home and the activities that normally go on there that it can reasonably be considered part of the home.’” United States v. French, 291 F.3d 945, 951 (7th Cir. 2002) (quoting Siebert v. Severino, 256 F.3d 648, 653-54 (7th Cir. 2001)).
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 16 of 22 the vehicle on instinct, i.e., without interference from Officer Powell, federal
circuit court cases post-dating Jones and Jardines consistently hold that the
instinctive entry rule would apply. See, e.g., United States v. Keller, 123 F.4th
264, 268 (5th Cir. 2024) (noting that even after Jones, “[n]umerous circuits agree
that, absent police misconduct, the instinctive actions of a trained canine …
constitute incidental contact, not an unconstitutional Fourth Amendment
search.”). We agree with the State that Jones and Jardines “have not altered the
validity of this long-standing rule.” Appellee’s Br. at 14.
[36] But because Officer Powell facilitated Swag’s entry into the vehicle by removing
his lead, Swag was not acting on pure instinct and so Jones and Jardines are
relevant to our analysis. See United States v. Pulido-Ayala, 892 F.3d 315, 318 (8th
Cir. 2018) (quoting Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989))
(“A drug dog is an instrumentality of the police, and the actions of ‘an
instrument or agent’ of the government are normally governed by the Fourth
Amendment.”), reh’g denied. This is especially so given the fact that Officer
Powell himself leaned, reached, and peered into the vehicle before Swag alerted
and consequently before there could have been probable cause to search the
vehicle’s interior. See Stone, 866 F.2d at 364 (explaining that “[o]nly after the
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 17 of 22 dog was in the [vehicle], where it ‘keyed’ on the [drugs], did the police have
probable cause to search the car.”) (emphasis added). 14
[37] Thus, because Swag’s entry was not instinctive, Swag and Officer Powell’s
physical intrusions into the vehicle without probable cause violated the Fourth
Amendment. See Jardines, 569 U.S. at 11 (“That the officers learned what they
learned only by physically intruding on [defendant’s] property to gather
evidence is enough to establish that a search occurred.”). 15
2. The Exclusionary Rule [38] Because the officers searched Ocampo’s vehicle without probable cause, we
must determine whether to apply the exclusionary rule. “Under the
exclusionary rule—unless an exception applies—evidence obtained both
directly and derivatively from an illegal search must be suppressed.” Heuring v.
State, 140 N.E.3d 270, 273 (Ind. 2020) (emphasis in original). “It is the State’s
14 Notably, we observe that many federal circuit court cases applying the instinctive entry rule have found that officers had probable cause to conduct a search independent of the K9’s intrusion into the vehicle. For example, in Lyons, the Eighth Circuit noted that during an exterior sniff the “dog alert[ed] to several areas of the van and almost indicat[ed] at the rear of the van before ultimately sticking his head through the window.” 486 F.3d at 374. A similar fact pattern was present in Guidry, where the dog “indicated that the car contained drugs while sniffing the car’s perimeter.” 817 F.3d at 1006. Lyons, Guidry, and like cases applying the instinctive entry rule to circumstances where the dog first alerted outside the vehicle are more comparable to Harbaugh than to the circumstances of the present case. See Harbaugh, 96 N.E.3d at 107 (holding that “since the State also presented evidence [the dog] alerted outside the vehicle, we need not address the legality of an interior dog sniff.”). 15 Because we agree with Ocampo that the officers searched his vehicle without probable cause in violation of the Fourth Amendment, we need not address Ocampo’s Indiana Constitutional arguments, nor do we address whether the officers exceeded the scope of an otherwise lawful search by dismantling the vehicle’s components.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 18 of 22 burden to prove that one of these well-delineated exceptions is satisfied.” Clark
v. State, 994 N.E.2d 252, 260 (Ind. 2013).
[39] The State argues that application of the exclusionary rule is inappropriate in
this case but does not specifically identify which exception we should apply to
reach that conclusion. However, we note that the State cites a line of United
States Supreme Court opinions, starting with United States v. Leon, which stand
for the proposition that “the exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and magistrates.” 468
U.S. 897, 916 (1984), reh’g denied. Under this principle, the exclusionary rule
does not require the “suppressi[on of] evidence obtained in objectively
reasonable reliance on a subsequently invalidated search warrant[.]” Id. at 922.
[40] The Court expanded the application of this “good-faith exception” in Davis v.
United States, which held that “[e]vidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the exclusionary
rule.” 564 U.S. 229, 241 (2011). The State argues that Davis requires us to
decline application of the exclusionary rule because when Officers Powell and
James searched Ocampo’s vehicle, “[n]either the United States Supreme Court
nor the Indiana appellate courts had ever held that a dog sniff becomes a search
if the dog enters the vehicle.” Appellee’s Br. at 23.
[41] We are not persuaded. When the officers searched Ocampo’s vehicle, it was
well-settled by Indiana’s Supreme Court that to search a vehicle’s interior,
“[t]he automobile exception requires probable cause to believe the vehicle
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 19 of 22 contains evidence of a crime.” Hobbs, 933 N.E.2d at 1286. Hobbs further
explained that to obtain probable cause, officers may “summon [a] canine unit
to the scene to conduct an exterior sniff[.]” Id. (emphasis added).
[42] Neither the United States Supreme Court nor any Indiana appellate court has
ever held that, absent probable cause, officers may permit a K9 to conduct an
interior sniff. To the contrary, the United States Supreme Court held in Jones
that police may not, without probable cause, physically intrude into a vehicle
for the purpose of obtaining information. 565 U.S. at 404-05. And if Jones was
not clear enough, the Court further held in Jardines that officers may not intrude
into a constitutionally protected area to conduct a K9 sniff. 569 U.S. at 11-12.
[43] While we agree with the State that “the overwhelming weight of authority from
other jurisdictions ha[s] long held that it is not a search as long as the officer has
not directed, encouraged, or facilitated the entry,” Appellee’s Br. at 23, we also
agree with the Tenth Circuit’s conclusion that in those jurisdictions (including
the Seventh Circuit) that have adopted the instinctive entry rule, it is “clearly
established … that facilitating a dog’s entry into a vehicle without first
establishing probable cause constitutes an improper search.” Felders ex rel.
Smedley v. Malcom, 755 F.3d 870, 885 (10th Cir. 2014), cert. denied.
[44] Nonetheless, the State cautions us against suppressing evidence of Ocampo’s
drug activity, arguing that the exclusionary rule should only be applied where
“the benefits of [deterring police misconduct] outweigh the costs to society of
excluding probative evidence of guilt.” Appellee’s Br. at 23. But we are
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 20 of 22 mindful of Justice Scalia’s observation in Arizona v. Hicks that “there is nothing
new in the realization that the Constitution sometimes insulates the criminality
of a few in order to protect the privacy of us all.” 480 U.S. 321, 329 (1987).
[45] Moreover, the State concedes that “[e]xclusion is most appropriate where there
is flagrant misconduct by police officers who knew, or should have known, that
their conduct was unconstitutional.” Appellee’s Br. at 23. Given the weight of
Indiana and federal authority addressing K9 sniffs, Officer Powell can “‘be
charged with knowledge’” that the physical intrusion into Ocampo’s vehicle to
conduct an interior sniff violated the Fourth Amendment. Shotts v. State, 925
N.E.2d 719, 724 (Ind. 2010) (quoting Illinois v. Krull, 480 U.S. 340, 348-49
(1987)).
[46] For these reasons, the State has failed to meet its burden to prove that the good-
faith exception to the exclusionary rule should be applied in this case. In light
of the State’s failure, evidence of the narcotics discovered in Ocampo’s vehicle
during Officer Powell and James’s unlawful search “must be suppressed.”
Heuring, 140 N.E.3d at 273.
Conclusion [47] We join the federal circuit courts that have held that a trained K9’s instinctive
entry into a vehicle is generally not a Fourth Amendment search. But it is
axiomatic that for a K9’s entry to be instinctive, it cannot result from an
officer’s direction, assistance, facilitation, or other intentional action.
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 21 of 22 [48] Finding undisputed evidence that Officer Powell intentionally removed Swag’s
lead to “allow him to search without anything holding him back,” we conclude
that Swag’s entry into Ocampo’s vehicle was not instinctive. Tr. at 32.
Consequently, the resulting interior dog sniff was a Fourth Amendment search
lacking probable cause. And because we find that the State has failed to prove
that an exception to the exclusionary rule applies to these circumstances, the
trial court erred in denying Ocampo’s motion to suppress.
[49] Accordingly, we reverse and remand with instructions for the trial court to
grant Ocampo’s motion to suppress.
[50] Reversed and remanded.
Altice, C.J., and Pyle, J., concur.
ATTORNEY FOR APPELLANT Bryan L. Cook Carmel, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana
Ellen Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-2785| August 29, 2025 Page 22 of 22