Petition for Writ of Certiorari — Steven Tilden Fellmy, Petitioner v. United States

SUPREME COURT

OF THE

UNITED STATES OF AMERICA

CASE NO.

STEVEN TILDEN FELLMY

V.

PETITIONER

PETITION FOR WRIT OF CERTIORARI

UNITED STATES OF AMERICA

DEFENDANT

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT IN COURT OF APPEALS

CASE NUMBER 25-5381

Respectfully submitted,

s/ Jeffrey C. Rager

Jeffrey C. Rager

Rager Law Firm, PLLC

201 West Short Street, Suite 820

Lexington, KY 40507

jrager@ragerlawky.com

(859) 963-2929

Counsel of Record for Steven T. Fellmy

QUESTIONS PRESENTED FOR REVIEW

I.

Is the act of a police canine placing its paws on the paint and windowsills of a

car to stick its nose inside a car to sniff, and, after the canine handler

specifically told the canine to “up”, a violation of the Fourth Amendment.

II.

Can a police canine that is too small to perform its duties properly be given a

pass to violate the Fourth Amendment?

ii

LIST OF ALL PARTIES AND PROCEEDINGS PARTIES

PETITIONER/APPELLANT/DEFENDANT –STEVEN TILDEN FELLMY

RESPONDENT/APPELLEE/PLAINTIFF – UNITED STATES OF AMERICA

PROCEEDINGS

United States v. Fellmy, Case No. 5:24-CR-0006 in the Eastern District of Kentucky

United States v. Fellmy, Case No. 25-5381, Sixth Circuit Court of Appeals

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW… ..................................................... ii

LIST OF ALL PARTIES AND PROCEEDINGS… ..............................................iii

TABLE OF CONTENTS… .................................................................................... iv

INDEX TO APPENDICES… ................................................................................. iv

TABLE OF AUTHORITIES CITED…................................................................. vi

OPINIONS BELOW… .......................................................................................... 1

STATEMENT OF JURISDICTION ...................................................................... 2

CONSTITUTIONAL, STATUTORY PROVISIONS INVOLVED… ................ 3

STATEMENT OF THE CASE… .......................................................................... 4

REASONS FOR GRANTING WRIT……………………………………………7

I. The act of a police canine placing its paws on the paint and windowsills

of a car to stick its nose inside to sniff, and, after the canine handler

specifically told the canine to “up”, is a violation of

the Fourth Amendment…………………………………………………..8

II. Tyra did not instinctually violate the Fourth Amendment…………..12

CONCLUSION…………………………………………………………………13

CERTIFICATE OF SERVICE………………………………………………….15

APPENDICES…................................................................................................... I

*I. District Court Sentence and Judgment

*II. District Court Opinion

*III. Circuit Court Opinion Affirming the District Court’s

Sentence and Judgment

INDEX TO APPENDICES

APPENDIX I: Judgment of the District Court, United States v. Fellmy, Case No. 5:24CR-0006 entered on April 17, 2025, at District Court Docket Entry 55.

APPENDIX II: Opinion of the District Court, United States v. Fellmy, Case No. 5:24CR-0006 entered on December 9, 2024, at District Court Docket Entry 24.

iv

APPENDIX III: Opinion of the Court of Appeals for the Sixth Circuit affirming, United

States of America v. Fellmy, Case No. 25-5831 entered on January 23, 2026, at Docket

Entry 34-2.

v

TABLE OF AUTHORITIES CITED

APPELLATE COURT CASES

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701,

33 L.Ed.2d 548 (1972)……………………………………………………………….9

Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)……………………………10

Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)……....9

Florida v. Jardines, 569 U.S. 1, 5-6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)…….8,9,11,13

Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)………..9

Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870, 872 (Ky. Ct. App. 2012)………..10

Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961,

130 L.Ed.2d 902 (1995)…………………………………………………………….13

State v. Dorf, 526 P.3d 998 (2023)…………………………………………………9,10,11,13

State v. Organ, 726 S.W.3d 346 (Tex. Crim. App. 2025)………………………….8,9

State of Ohio v. Barton, 2025-0912………………………………………………..7

United States v. Buescher, 691 F.Supp. 3d 924 (N.D. Iowa 2023)………………..11

United States v. Corbett, 718 F.Supp.3d 537 (S.D. West Virginia 2024)…………11,12,13

United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)……8,9,10,11,12,13

United States v. Pierce, 622 F.3d 209 (3d Cir. 2010)………………...……………12

United States v. Sharp, 689 F.3rd 616 (6th Cir. 2012)………………………………5,12

STATUTE REGULATIONS AND RULES

Fed. R. App. P. 3…………………………………………………………………..2

SCR 10…………………………………………………………………………….2

SCR 13…………………………………………………………………………….2

21 U.S.C. §841……………………………………………………………………2

vi

OTHER AUTHORITY

Restatement (Second) of Torts §217 cmt. e (1965)……………………………………10

vii

OPINIONS BELOW

The Petitioner’s Appeal to the Sixth Circuit was taken from a Judgment entered against

him in his criminal case whereby the District Court sentenced Mr. Fellmy to a total of 300

months in prison after a jury trial. During pretrial proceedings, Mr. Fellmy filed a Motion to

Suppress which was denied by the District Court. A timely appeal was taken from the Judgment

and Sentence to the Sixth Circuit Court of Appeals. On January 23, 2026, the Sixth Circuit Court

of Appeals affirmed the District Court’s Judgment and Sentence.

1

STATEMENT OF JURISDICTION

The basis of the subject matter jurisdiction of the United States District Court for the

Eastern District of Kentucky was 21 U.S.C. §841, for which the Defendant, Steven Felmy, was

indicted on January 18, 2024. A Judgment and Sentence was rendered by the District Court on

April 17, 2024, after conviction at jury trial. Mr. Fellmy timely filed his Notice of Appeal on

April 22, 2025. The basis for the jurisdiction of the Court of Appeals was Fed. R. App. P. 3 and

28 U.S.C. §1291. The jurisdiction of Supreme Court of the United States is invoked pursuant to

28 U.S.C. §1254(1) and SCR 10 and 13(3). The United States of America is a party and the

Solicitor General of the United States has been served with this Petition.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fourth Amendment to U.S. Constitution: 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.

3

STATEMENT OF THE CASE

The Petitioner, Steven Tilden Fellmy, was indicted for possession with intent to distribute

methamphetamine. Mr. Fellmy proceeded to trial and was convicted of this single count. The

underlying case was a drug case resulting from the search of Mr. Fellmy’s Ford Mustang GT

while being pulled over on the side of the road. The search resulted in finding methamphetamine

that was concealed under a shirt in the back driver side floorboard of the Mustang. Mr. Fellmy

had just painted his Mustang GT silver with black racing stripes. Transcript Trial Day 3, R.E.

65, ID#770, 804. Furthermore, it was obvious that the local authorities were interested in

confiscating this fast, sportscar. Transcript, Trial Day 1, R.E. 63, ID#495, 505; Transcript, Trial

Day 2, R.E. 64 ID# 645-6.

In relation to the Fourth Amendment issue that Mr. Fellmy asks this Court to resolve, a

suppression hearing was held by the District Court relating to whether the methamphetamine

should have been suppressed because of the actions of the canine, Tyra, and its handler, Officer

Shelton. Officer Shelton testified as to the training he and Tyra received. However, he could not

produce his own certification to be a K9 handler. Suppression Hearing R.E. 29, ID#123-4. He

left those records with the next handler after he left the department. Id. at ID#126. The records

disappeared. Id. at ID#124. He described Tyra as a small framed German Shepherd. Id at ID#

115. He had concerns that she was too small to be a K9 dog when he met Trya. Id. at ID#135.

However, he used the stature of Tyra to justify patting the windowsill on both sides of the

Mustang because he needed to get her to “up” so her head could reach the higher areas. Id. at

ID#120. He described his understanding of open and free air sniffs as the dog being able to sniff

the air emitting from the vehicle. Id. at ID#137. Later, he testified that the air in the interior is

not open and free. Id. at ID#139-40. He stated he was trained to pat the area around the

windowsill so the dog would check the upper portions of the vehicle. Id. ID#135. He agreed

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that when he would pat the area, the dog would jump right up there. She would also put her

paws/claws on the paint of a person’s car. In this particular situation, she put her head into the

car twice. Id. Even though he knew she was going to jump on the side of the car, he apparently

did not think she would stick her head in the car. Id. at ID#136. However, he definitely knew

the second time Tyra did the same thing. He also testified that since the car was a low-riding

vehicle (actually he couldn’t think of lower riding car than a Mustang) that she would have had

to put her paws on any car to get higher to sniff. Id. at ID#137. He testified that Tyra had done

this very act in the past. Id. at ID#139. He also testified that having both windows down would

make Trya’s job easier, but again, he still had to pull on her leash and tap the windowsills.

Furthermore, she had to stick her head into the vehicle to do her job. Id. at ID#142. Trya was

also so excited at the scene that she had to be told 3 times to sit. Id. ID#140.

In Mr. Fellmy’s Motion to Suppress relating to the canine search of his vehicle, he raised

two main issues. The first issue was that Trya did not instinctually place her nose in the car, but

she was commanded to do so by the handler, who patted the window and told her to “up” on both

sides of the Mustang.

Mr. Fellmy also argued that the placing of paws on his recently painted

Mustang was a violation of the Fourth Amendment’s traditional concern of governmental

trespass upon a person’s effects.

Motion to Suppress, R.E. 13.

The District Court Opinion did

not really address the trespass arguments, but relied on United States v. Sharp, 689 F.3rd 616 (6th

Cir. 2012) (a dog may instinctually violate the Fourth Amendment).

“She was simply

commanded to prop herself up to sniff from a higher position, and any intrusion into the

vehicle—if any at all—was instinctive and the result of Tyra following the odor of narcotics

found within the vehicle.” Opinion, R.E. 24 ID#66-7. The District Court also found that despite

Tyra and her handler’s lack of training documentation and being small, Tyra could properly

perform her duties as a police canine. Id.

5

On Appeal, the Court of Appeals for the Sixth Circuit opined that tapping the window of

an open window so that small Tyra could get a better whiff of “free air” was only a minimal

intrusion into Mr. Fellmy’s expectation of privacy.

The Sixth Circuit accepted the finding of

District Court that the officer did not facilitate the dog breaching the interior of the vehicle, even

though the Opinion stated that Mr. Fellmy’s perception of the facts was equally permissible.

See United States v. Fellmy, R.E. 34-4 at p. 6.

Both the affirmation of this finding and the

finding itself is erroneous. Officer Shelton instructed the dog to be in the precise position to

stick her nose in the car, and that is what she did. The dog would not have been in a position to

breach the interior but for the handler telling her to do so.

In relation to the property rights argument under the Fourth Amendment, the Sixth

Circuit agreed that Mr. Fellmy’s car was a constitutionally protected effect. See Id. at p. 7. The

Court found that Tyra’s conduct in performing the “free air” sniff was not a search of the car

because her putting her paws/claws on the car and sticking her nose inside the vehicle was

incidental contact. See Id. at 7. There were two separate concurrences in Mr. Fellmy’s case.

The first concurrence was well-thought and researched but essentially boiled down to the

trespass must have cause actionable damages before the Fourth Amendment is implicated. See

Id at p.21 (Judge Thapar concurring). This concurrence also determined that ‘the officer only

tapped the outside of the car” and thus was not an intrusion. See Id at p.23. It ignored that the

tap was right on the windowsill of both sides of the vehicle’s open windows and that the tap was

an instruction to the dog.

There was an additional concurrence in Mr. Fellmy’s case which agreed with Judge

Thapar’s concurrence.

Judge Hermandorfer’s concurrence believes there is doctrinal and

practical problems if a dog placing its paws on a car to sniff the inside of the vehicle is

considered a trespass under state law. See Fellmy at 32-34 ( Judge Hermandorfer’s concurrence).

6

REASONS FOR GRANTING THE WRIT

The Supreme Court of United States should grant this Petition because Mr. Fellmys’ case

involves questions of exceptional public importance in relation to the Fourth Amendment.

Furthermore, the Idaho Supreme Court and the Texas Court of Criminal Appeals have rendered

decisions on the issue presented herein which conflict with that of Sixth Circuit’s Opinion in Mr.

Fellmy’s case. Additionally, the Supreme Court of Ohio is poised to render an Opinion on the

issue presented. See State of Ohio v. Barton, 2025-0912. Recently in Barton, the Sixth Circuit’s

Opinion in Fellmy’s case was cited as supplement authority.

The use of dogs to create probable cause to search an otherwise constitutional protected

space is prevalent in law enforcement. A dog can freely walk around the car while having their

wagging tail brush a fender without concern for the Fourth Amendment. However, before

standing on its back paws and placing its front paws on this newly painted Mustang, while also

breaching the plain of the vehicle’s interior, does require probable cause. Furthermore, this was

not a sui generis act of an animal because Trya was commanded to do what she did. This “up”

command has become a matter of training for police dogs. The command by law enforcement to

“up” is not incidental contact.

Furthermore, as can be seen from the Opinion in Fellmy’s case, state and federal courts

are no longer in lock step with the Fourth Amendment’s property rights test when it comes to the

use of dogs. As stated above, there are two cases from the courts of last resort in Idaho and

Texas that have taken the opposite position than the Sixth Circuit has taken in Mr. Fellmy’s case.

See Fellmy, R.E. 34-4 at p. 29 and fn. 3 (Judge Hermandorfer’s Concurrance).

Even without these opposing cases from the states, the concurrences raise the specter of

Fourth Amendment law being determined at the whim of each individual state common-law on

7

trespass. “Doctrinal trouble would only multiply if our focus is to be on each State’s modernday trespass law—an interpretation Fellmy at points suggests and Judge Thapar’s concurrence

entertains.” Fellmy 34-4 at p. 29.

I. The act of a police canine placing its paws on the paint and windowsills of

a car to stick its nose inside to sniff, and, after the canine handler specifically told

the canine to “up”, is a violation of the Fourth Amendment.

The Sixth Circuit in Fellmy’s Opinion did not question the facts that the police officer

told the canine to “up” by patting the windowsill with his hands. Also established was that Tyra,

after she put her paws on the vehicle, then put her nose into the interior of the Mustang on two

occasions. See Opinion in United States v. Fellmy, 25-5381 at p. 2. The Sixth Circuit agreed

with Mr. Fellmy’s argument that pursuant to United States v. Jones, 565 U.S. 400, 404, 132 S.Ct.

945, 181 L.Ed.2d 911 (2012) his Mustang was constitutionally protected as an effect and that the

police’s actions were intended to gather information. See Id. at p.7. However, the Sixth Circuit

determined that “Tyra’s conduct in performing a free-air sniff around Fellmy’s vehicle didn’t

constitute a search under Jones. That’s because Tyla merely made incidental contact with the car

while performing the challenged sniffs.” Id. at p. 7.

However, as stated above, two state courts of last resort have come to the opposite

conclusion based on very similar facts. In State v. Organ, 726 S.W.3d 346 (Tex. Crim. App.

2025), the canine approached the passenger side window and did the same thing that Tyra did in

the cast at bar. “During the open-air sniff, as Jaks approached the front passenger door, he

jumped up at the passenger side window, leaned against the car with his front paws, and stuck

his nose through the open window.” State v. Organ, 726 S.W.3d 346, 349 (Tex. Crim. App.

2025). Jaks, the canine, did this act three times and the Texas Court also determined that Jaks

was cued by the handler. See Id. at 349 at fn. 2. The Texas High Court stated this “case is easily

resolved by applying the physical-intrusion principles laid out in Jones and Jardines.” Id. at 360.

8

Unlike the Sixth Circuit, Texas had no issue in determining that the dog putting its paws on the

car to stick its head in the vehicle was a search of a constitutionally protected area. In reaching

this conclusion, the Organ Court distinguished Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct.

834, 160 L.Ed.2d 842 (2005). Walking a dog around the exterior of lawfully seized vehicle for a

routine open-air sniff does not raise Fourth Amendment concerns while allowing a dog to place

its nose in the vehicle amounts to violation of the Fourth Amendment. See Organ at 360. The

Organ Court also noted that this conclusion was the natural extension of the Supreme Court’s

holdings in Florida v. Jardines, 569 U.S. 1, 5-6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)

(trespass occurred when a canine entered int to the protected area of home’s curtilage for a sniff)

and United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (a vehicle

is an “effect” protected by the Fourth Amendment).

The court of last resort in Idaho also came to the opposite conclusion than the Sixth

Circuit in State v. Dorf, 526 P.3d 998 (2023). However, in Dorf, the canine did not breach the

interior with its nose, but only placed its paws on the vehicle and sniffed the upper seems of the

driver side window. The Dorf Court, while citing to the reasoning in Jones, concluded that the

canine did in fact trespass against Mr. Dorf’s vehicle. The Idaho Supreme Court held that the

traditional property-based trespass applies an “18th-century guarantee against unreasonable

searches, which…must provide at a minimum the degree of protection it afforded when the [the

Fourth Amendment] was adopted.”

State v. Dorf, 526 P.3d 988, 994 (2023) (citing to Jones,

565 U.S. at 404, 132 S.Ct. 945). “However, “[p]roperty interests, of course, are not created by

the [United States] Constitution.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577,

92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (alteration added). And “[t]here is no federal general

common law[,]” Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),

of “trespass” that can answer what “degree” of protection is afforded to “effects” under the

9

Fourth Amendment.” Id. Based on this, the determination of what sticks are in a person’s

bundle of property rights are traditionally defined and created by state law. See Id. In the case

at bar, Judge Thapar’s concurrence seemed to indicate that a trespass needed to be actionable

before the Fourth Amendment was implicated, i.e. some kind damage occurred. See Fellmy at

p.21. However, both this Court and the Dorf Court rejected this. “The property-based test is

only concerned with when a trespass occurs—not whether that particular trespass was actionable,

i.e., whether that trespass could be remedied through a cause of action at common law.” Dorf,

526 P.3d at 996 (citing to Jones, 565 U.S. at 405, 132 S.Ct. 945). In Jones, this Court stated:

Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have described

as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American

statesman’ at the time the Constitution was adopted, and considered to be ‘the true

and ultimate expression of constitutional law’ ” with regard to search and seizure.

Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628

(1989) (quoting Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 29 L.Ed.

746 (1886)). In that case, Lord Camden expressed in plain terms the significance

of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set

his 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 it by law.”

United States v. Jones, 565 U.S. 400, 405, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012) (citing

to Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765). After analyzing Idaho law, the Dorf

Court determined that Idaho defined trespass as intermeddling with another’s property. Very

similar to Dorf and applicable in the case at bar, Kentucky has adopted the Restatement (Second)

of Torts §217 which states “[A] trespass to a chattel may be committed by intentionally (a)

dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession

of another.” Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870, 872 (Ky. Ct. App. 2012). The

Restatement of Torts further defines intermeddling as intentionally bringing about a physical

contact with the chattel. See Restatement (Second) of Torts §217 cmt. e (1965). The Dorf Court

made the following analogy in holding that a dog placing its paws on a car to search for

10

something was a trespass: “If someone directs a hand on or into your purse, or their dog jumps

on or into your vehicle, without privilege or consent, no one (including common-sense) could

doubt your right to protest and exclaim: “Hey! Hands-off my purse!” or “Hey! Get your dog off

my car!” Dorf, 526 P.3d at p. 998.

Finally, there is at least two Federal District Courts that have found the practice of

“upping” and allowing the canine to place its paws on a car is a violation of the Fourth

Amendment and worthy of suppression of the evidence. In United States v. Buescher, 691

F.Supp. 3d 924 (N.D. Iowa 2023), the District Court granted the defendant’s motion to suppress

mainly because of the Supreme Court cases of Jones and Jardines. This reliance is because of

the Supreme Court’s return to the traditional property-based test in conjunction with an

expectation of privacy. The Buescher Court excluded the evidence because it found that the

canine was an instrumentality of the government, the canine had done this before and there was

an indication that the dog was trained to do so…just as in Mr. Fellmy’s case. See United States

v. Buescher, 691 F.Supp. 3d 924, 939-40 (N.D. Iowa 2023)

Even more on point is the District Court case of United States v. Corbett, 718 F.Supp.3d

537 (S.D. West Virginia 2024) where the District Court suppressed the evidence as well. In

Corbett, the District Court specifically referred to the practice of “upping”. “Upping” is the

practice of directing a dog to jump on the car to get a higher sniff. See United States v. Corbett,

718 F.Supp.3d 537, 548 (S.D. West Virginia 2024). The dog in Corbett also put her head in the

car after being instructed to “up.” This is the same practice used with Tyra as described by

Officer Shelton in his testimony. Suppression Hearing R.E. 29, ID#135-7. “Because K9 Kali

trespassed onto defendant's property with the officer's intent to obtain information by his

“upping” onto defendant's car, as he had been trained to do, and simultaneously penetrating

through the open windows, the court finds that an unlawful search under the Fourth Amendment

11

thereby occurred.” United States v. Corbett, 718 F. Supp. 3d 537, 565 (S.D.W. Va. 2024).

II. Tyra did not instinctually violate the Fourth Amendment.

Despite the handler patting the windowsill of an open window and directing the canine to

stand up on its hind legs to place its paws on the windowsill so that its head is level with the

open window, the Sixth Circuit determined that the subsequent sticking of her nose in the vehicle

was an instinctual act. However, this conclusion is erroneous and defies commonsense. In

United States v. Corbett, 718 F. Supp. 3d 537 (S.D.W. Va. 2024) the District Court noted that

that the canine had learned to jump on the vehicle via a practice referred to as “upping” to sniff

the higher seams of the window. See United States v. Corbett, 718 F. Supp. 3d 537, 548 (S.D.W.

Va. 2024). The Corbett Court cited to United States v. Pierce, 622 F.3d 209, 214 (3d Cir. 2010)

(one of the cases that was decided before Jones) to define instinctually. ‘Instinctually’ means the

dog acted without assistance, facilitation or other intentional action by the handler. See Corbett,

718 F. Supp. 3d at 563. Corbett also distinguished itself from cases like United States v. Sharp,

689 F.3d 616 (6th Cir. 2012) because the practice of “upping” had become a matter of training.

“The court now finds that the trespasses at each window were not alone instinctual; rather, they

were the result of deliberate, repeated, and intentional training to “up” onto vehicles while

searching for narcotics, enabling simultaneous penetration into open windows when, as in this

case, the canine is not restrained.” Corbett, 718 F. Supp. 3d at 563. In Fellmy’s case the dog put

its head into the windows, not once but twice. Maybe once can be forgiven as instinctually, but

when the handler does the same thing on the other side while already knowing Tyra had just

broken the plane of the car’s interior, this act can no longer be seen as instinctual.

Furthermore, under Fellmy’s particular facts, the reasoning of cases like Sharp or Pierce

do not apply because Tyra and her handler were both trained to “up”. “[R]esponsibility for

ensuring the dog's actions comply with the law falls to its handler, and the “Constitution

12

constrains governmental action by whatever instruments or in whatever modes that action may

be taken.” Corbett, 718 F. Supp. 3d at 566 (citing Lebron v. Nat'l R.R. Passenger Corp., 513

U.S. 374, 392, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

Another important distinguishment from the case at bar is that even with training, Trya

was incapable of performing a proper free air sniff. This was another excuse given by the

handler as to why he commanded the dog to “up”. Suppression Hearing R.E. 29, ID#137. Mr.

Fellmy’s Mustang GT, with its new paint job, was a low riding vehicle, yet Tyra was still too

short to properly sniff the outside of the vehicle and thus she was commanded to put her paws on

Mr. Fellmy’s car. In short, the police should not be given a free pass to trespass or violate the

Fourth Amendment because their chosen dog is too short, regardless of the dog’s training.

CONCLUSION

What can be seen from many of the cases cited herein is that the lower and state courts

are coming to very different conclusions based upon the interpretations of Florida v. Jardines,

569 U.S. 1, 5-6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), United States v. Jones, 565 U.S. 400,

404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) and this Court’s progeny of cases on dog sniffs. On

the one hand, there are Opinions like the in Dorf that claim the issue is “easily resolved by

applying the physical-intrusion principles laid out in Jones and Jardines.” State v. Organ, 726

S.W.3d 346, 360 (Tex. Crim. App 2025). While on the other hand, Fellmy’s Opinion endorses

police dogs being allowed to jump on people’s cars by claiming that such is incidental contact or

only a technical trespass. See Fellmy’s Opinion at 34-2 at p. 7 and 27.

Mr. Fellmy did not want Tyra or any dog to put its paws and claws on his newly painted

Mustang GT. It only takes a little commonsense to surmise that most people don’t want dogs on

their cars either. Therefore, Mr. Fellmy requests that this Court grants his Petition for Certiorari

13

so that he may fully brief and present the issues of his case. With the current conflict between

the Sixth Circuit Court of Appeals and at least two state courts of last resort on this important

Fourth Amendment issue, the United States Supreme Court should have the last word on the

matter.

Respectfully Submitted,

s/ Jeffrey C. Rager

Jeffrey C. Rager

Rager Law Firm, PLLC.

201 West Short Street, Suite 820

(859) 963-2929

jrager@ragerlawky.com

Counsel of Record for Steven T. Fellmy

14

CERTIFICATE OF SERVICE

I, Jeffrey C. Rager, attorney for the petitioner, Steven T. Fellmy, hereby certify

that the original and ten copies of this Petition for Writ of Certiorari were mailed to the

Office of the Clerk, Supreme Court of the United States, One 1st Street NE Washington,

DC 20543; and that a true copy of the foregoing Petition was served by mail with firstclass postage prepaid, upon the Solicitor General of the United States, Room 5614,

Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001;

Charles P. Wisdom, United States Attorney's Office for Eastern District of Kentucky, 260

West Vine Street, Suite 300, Lexington, KY 40507;Steven T. Fellmy, FMC Lexington,

P.O. Box 14500, Lexington, KY 40512 by first class mail on this the 6th day of

March, 2026.

s/ Jeffrey C. Rager

Jeffrey C. Rager

15

APPENDIX I

APPENDIX I: Judgment of the District Court, United States v. Fellmy, Case No. 5:24CR-0006 entered on April 17, 2025, at District Court Docket Entry 55.

I

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 1

Doc #: 55 Filed: 04/17/25

ID#: 352

Page: 1 of 7 - Page

UNITED STATES DISTRICT COURT

Eastern District of Kentucky – Central Division at Lexington

)

)

)

)

)

)

)

)

)

UNITED STATES OF AMERICA

v.

Steven Tilden Fellmy

THE DEFENDANT:

JUDGMENT IN A CRIMINAL CASE

Case Number:

5:24-CR-006-KKC-01

USM Number:

30213-511

Jeffrey C. Rager

Defendant’s Attorney

☐ pleaded guilty to count(s)

☐ pleaded nolo contendere to count(s)

which was accepted by the court.

☒ was found guilty on count(s)

after a plea of not guilty.

1 [DE #1]

The defendant is adjudicated guilty of these offenses:

Title & Section

21:841(a)(1)

& 851

Nature of Offense

Possession with the Intent to Distribute 50 Grams or More of Actual

Methamphetamine

The defendant is sentenced as provided in pages 2 through

the Sentencing Reform Act of 1984.

7

Offense Ended

August 8, 2023

Count

1

of this judgment. The sentence is imposed pursuant to

☐ The defendant has been found not guilty on count(s)

☐ Count(s)

☐ is

☐ are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

April 17, 2025

Date of Imposition of Judgment

April 17, 2025

Date

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 2 - Imprisonment

Doc #: 55 Filed: 04/17/25

ID#: 353

Page: 2 of 7 - Page

Judgment — Page

DEFENDANT:

CASE NUMBER:

2

of

Steven Tilden Fellmy

5:24-CR-006-KKC-01

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:

THREE HUNDRED (300) MONTHS

☒

The court makes the following recommendations to the Bureau of Prisons:

That the defendant participate in any available substance abuse treatment programs.

That the defendant participate in a psychological evaluation and any necessary treatment.

☒

The defendant is remanded to the custody of the United States Marshal.

☐

The defendant shall surrender to the United States Marshal for this district:

☐

☐

at

☐ a.m.

☐

as notified by the United States Marshal.

☐ p.m.

on

.

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐

before 2 p.m. on

.

☐

as notified by the United States Marshal.

☐

as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

7

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3 - Supervised Release

Doc #: 55 Filed: 04/17/25

ID#: 354

Page: 3 of 7 - Page

Judgment—Page

DEFENDANT:

CASE NUMBER:

3

of

7

Steven Tilden Fellmy

5:24-CR-006-KKC-01

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of:

TEN (10) YEARS

MANDATORY CONDITIONS

1.

2.

3.

4.

5.

6.

7.

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court’s determination that you

pose a low risk of future substance abuse. (Check, if applicable.)

☐ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (Check, if applicable.)

☒ You must cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)

☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (Check, if applicable.)

☐ You must participate in an approved program for domestic violence. (Check, if applicable.)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3A - Supervised Release

Doc #: 55 Filed: 04/17/25

ID#: 355

Page: 4 of 7 - Page

Judgment—Page

DEFENDANT:

CASE NUMBER:

4

of

7

Steven Tilden Fellmy

5:24-CR-006-KKC-01

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming

aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

You must comply strictly with the orders of your physicians or other prescribing source with respect to the use of any prescribed

controlled substances. You must report any changes regarding your prescriptions to your probation officer immediately (i.e., no later

than 72 hours). The probation officer may verify your prescriptions and your compliance with this paragraph.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature

Date

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3D - Supervised Release

Doc #: 55 Filed: 04/17/25

ID#: 356

Page: 5 of 7 - Page

Judgment—Page

DEFENDANT:

CASE NUMBER:

5

of

Steven Tilden Fellmy

5:24-CR-006-KKC-01

SPECIAL CONDITIONS OF SUPERVISION

1. You must refrain from any use of alcohol.

2. You must participate in urinalysis testing, or any other form of substance abuse testing, as directed by the U.S.

Probation Office. You must refrain from obstructing or attempting to obstruct or tamper, in any fashion, with

the efficiency and accuracy of any prohibited substance testing which is required as a condition of your release.

You must not knowingly use or consume any substance that interferes with the accuracy of substance abuse

testing.

3. You must submit your person, properties, homes, residences, vehicles, storage units, papers, and offices to a

search conducted by a United States Probation Officer. Failure to submit to a search will be grounds for

revocation of release. You must warn any other occupants that the premises may be subject to searches pursuant

to this condition.

7

Case: 5:24-cr-00006-KKC-MAS

Doc #: 55 Filed: 04/17/25

ID#: 357

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 5 - Criminal Monetary Penalties

Page: 6 of 7 - Page

Judgment — Page

DEFENDANT:

CASE NUMBER:

6

of

7

Steven Tilden Fellmy

5:24-CR-006-KKC-01

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

TOTALS

Restitution

$ 100.00

Fine

$ Community Waived

☐ The determination of restitution is deferred until

after such determination.

$ Waived

AVAA Assessment*

$ N/A

JVTA Assessment**

$ N/A

. An Amended Judgment in a Criminal Case (AO 245C) will be entered

☐ The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

Name of Payee

TOTALS

Restitution Ordered

Total Loss***

$

Priority or Percentage

$

☐ Restitution amount ordered pursuant to plea agreement $

☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

☐

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☐ the interest requirement is waived for the

☐ the interest requirement for the

☐

fine

☐

fine

☐

☐

restitution.

restitution is modified as follows:

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13, 1994, but before April 23, 1996.

Case: 5:24-cr-00006-KKC-MAS

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 6 - Schedule of Payments

Doc #: 55 Filed: 04/17/25

ID#: 358

Page: 7 of 7 - Page

Judgment — Page

DEFENDANT:

CASE NUMBER:

7

of

7

Steven Tilden Fellmy

5:24-CR-006-KKC-01

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

☒ Lump sum payment of $

☐

☒

not later than

in accordance with

100.00

☐

C,

due immediately, balance due

D,

☐

, or

☐ E, or

B

☐ Payment to begin immediately (may be combined with

C

☐ Payment in equal

D

☐ Payment in equal

☒ F below; or

☐

C,

☐

D, or

☐ F below); or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E

(e.g., 30 or 60 days) after release from

☐ Payment during the term of supervised release will commence within

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

☒ Special instructions regarding the payment of criminal monetary penalties:

Criminal monetary penalties are payable to:

Clerk, U. S. District Court, Eastern District of Kentucky

101 Barr Street, Room 206, Lexington, KY 40507

INCLUDE CASE NUMBER WITH ALL CORRESPONDENCE

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial

Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

☐

Joint and Several

Case Number

Defendant and Co-Defendant Names

(including defendant number)

Total Amount

Joint and Several Amount

Corresponding Payee, if appropriate

☐

The defendant shall pay the cost of prosecution.

☐

The defendant shall pay the following court cost(s):

☐

The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of

prosecution and court costs.

APPENDIX II

APPENDIX II: Opinion of the District Court, United States v. Fellmy, Case No. 5:24-CR0006 entered on December 9, 2024, at District Court Docket Entry 24.

II

Case: 5:24-cr-00006-KKC-MAS

Doc #: 24 Filed: 12/09/24

ID#: 62

Page: 1 of 6 - Page

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION AT LEXINGTON

CRIMINAL NO. 5:24-CR-6-KKC-MAS

UNITED STATES OF AMERICA,

v.

PLAINTIFF,

OPINION AND ORDER

STEVEN TILDEN FELLMY,

DEFENDANT.

* * * * * * * * *

This matter is before the Court on Defendant Steven Tilden Fellmy’s motion to

suppress. (DE 13.) The defendant argued that: (1) the police lacked probable cause in removing

him from his vehicle; and (2) the canine sniff search violated his Fourth Amendment rights.

The Court held a hearing on this matter before the parties on November 25, 2024. For the

following reasons, the Court will deny the defendant’s motion to suppress.

I.

Background

On August 8, 2023, Deputy Michael Raisor (“Raisor”) of the Mercer County Sheriff’s

Office was informed of an anonymous tip that the defendant was driving in the vicinity with a

large quantity of narcotics. Raisor initiated a traffic stop of the defendant’s vehicle after

observing that the vehicle had an improperly illuminated license plate and had made an illegal

lane change. Officer Isaac Shelton (“Shelton”) of the Harrodsburg Police Department and

K9 Tyra arrived on the scene approximately one minute later.

Shelton advised Raisor to have the defendant step out of his vehicle so that Shelton and

Tyra could perform a free-air sniff. After the defendant stepped out of the vehicle, Shelton

observed Tyra show a change in behavior before officially starting the sniff. He began the sniff

by having Tyra move towards the driver side window. Notably, the defendant had left his

1

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windows rolled down. Shelton then tapped at the upper portion of the driver side door to have

Tyra sniff at a higher position. In doing so, Tyra’s front paws and snout briefly entered the

threshold of the defendant’s vehicle. Shelton and Tyra repeated this method when they reached

the rear passenger side door. It was at this point that Tyra alerted Shelton to the presence of

narcotics within the defendant’s vehicle. The defendant was subsequently arrested, and

narcotics were found in the rear passenger side’s floorboard and on his person.

II.

Analysis

The Fourth Amendment states: “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.

In a motion to suppress evidence, the proponent has the burden of establishing that his own Fourth

Amendment rights were violated by the challenged search or seizure. United States v. Evers, 669

F.3d 645, 651 (6th Cir. 2012).

The defendant moves to suppress as evidence the seized narcotics, claiming that he was

unlawfully removed from his vehicle and that the sniff violated his Fourth Amendment

protections. The Court will analyze each argument in turn.

A.

Removal from the Vehicle

The Fourth Amendment's prohibition against unreasonable searches and seizures

“extend[s] to brief investigatory stops of persons or vehicles that fall short of traditional

arrest.” United States v. Chandler, 437 Fed.Appx. 420, 425 (6th Cir. 2011) (quoting United

States v. Luqman, 522 F.3d 613, 616 (6th Cir.2008)). “A traffic stop is reasonable under the

Fourth Amendment where the stop was both proper at its inception and ‘reasonably related in

scope to the circumstances ... [that] justified the ... [stop] in the first place.’” United States v.

Garrido–Santana, 360 F.3d 565, 570–71 (6th Cir. 2004) (quoting United States v. Freeman, 209

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F.3d 464, 466 (6th Cir. 2000)). An officer is permitted to make an investigative stop when he

has “probable cause to believe a civil traffic violation has occurred.” See Gaddis ex rel. Gaddis

v. Redford Tp., 364 F.3d 763, 771 n. 6 (6th Cir.2004) (citing Whren v. United States, 517 U.S.

806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). “[S]o long as the officer has probable cause to

believe that a traffic violation has occurred or was occurring, the resultant stop is not unlawful

and does not violate the Fourth Amendment.” United States v. Davis, 430 F.3d 345, 352 (6th

Cir. 2005) (citing United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)).

This Court has previously explained that “[o]fficers conducting a traffic stop have the

unequivocal right to order both the driver and any passengers out of the car regardless of

whether they suspect criminal activity beyond the initial traffic violation.” United States v.

Flores, 30 F.Supp.3d 599, 603 (E.D. Ky. July 2, 2014) (citing Arizona v. Johnson, 555 U.S. 323,

330-31 (2009)). At the hearing on the motion to suppress, the defendant pushed back on

whether his license plate was unilluminated at the time of the traffic stop. Yet Raisor testified

that he noticed that the defendant’s license plate was not properly illuminated—and that

violation, in conjunction with the defendant’s failure to use his turn signal when changing

lanes, was the reason that Raisor initiated the traffic stop. Regardless of Raisor’s knowledge of

the anonymous tip on the defendant’s drug trafficking, he was entitled to have the defendant

step out of his vehicle because he committed traffic violations.

This right to order a driver out of their vehicle is justified in part by officer safety.

Johnson, 555 U.S. at 331 (“The government’s ‘legitimate and weighty’ interest in officer safety,

the Court said, outweighs the ‘de minimis’ additional intrusion of requiring a driver, already

lawfully stopped, to exit the vehicle.”). But the defendant argues that officer safety is not a

justification here because the defendant’s vehicle was pulled off to the side of the road, there

were multiple law enforcement officers on the scene, and the removal only happened to allow

Shelton and Tyra to conduct a sniff on the defendant’s vehicle.

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The Court finds that the interest in officer safety outweighs the de minimis additional

intrusion of requiring the defendant to exit his vehicle after a lawful traffic stop. Raisor

testified that he initiated the traffic stop only after observing the defendant commit two traffic

violations, for which citations were issued. That alone, under the Flores line of case law, would

justify removing the defendant from his vehicle. Moreover, Raisor initiated this traffic stop at

night and near surrounding traffic. Raisor also had knowledge that the defendant was

potentially involved in drug trafficking. He testified that these factors as well as his training

and protocols informed his decision to order the defendant out of his vehicle. Notably, the

defendant did not suggest in his briefing or at the hearing that Raisor unlawfully prolonged the

traffic stop in any meaningful way.

Regardless of whether the officers’ intent was to conduct a sniff on the defendant’s

vehicle, ordering the defendant to step out of his vehicle was a minimal intrusion on the

defendant and in the interest of the officers on the scene—as well as the defendant himself.

Accordingly, the Court finds that the defendant was not unlawfully removed from his vehicle

following the traffic stop.

B.

Free-Air Sniff

The defendant’s argument against the lawfulness of the sniff conducted on the

defendant vehicle is two-fold: (1) that the defendant’s Fourth Amendment rights were violated

when Tyra stuck her snout through the defendant’s open windows; and (2) that Tyra’s

intrusion into and touching of the defendant’s vehicle violated his property rights.

“[A] trained canine’s sniff inside of a car after instinctively jumping into the car is not a

search that violates the Fourth Amendment as long as the police did not encourage or facilitate

the dog’s jump.” United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012). “A dog sniff from

inside of a vehicle becomes a search that violates the Fourth Amendment when ‘the officers

themselves opened the door’ and ‘facilitate[d] a dog sniff of the [vehicle’s] interior.’” Id. at 619

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(citing United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998)). However, the

federal circuits are consistent in holding that “a dog’s instinctive jump into a car” does not

violate the Fourth Amendment. Id.

Here, the defendant argues that Shelton “clearly instructed” Tyra to jump onto the

vehicle’s open windows and put her paws “within the exterior and then its head and nose.” (DE

13-1 at 8.) In other words, the defendant argues that Tyra’s actions were not an instinctive

jump or action that would not be violative of the Fourth Amendment, but a response to a

specific command which was meant to facilitate the dog’s intrusion into the defendant’s vehicle.

The evidence presented at the hearing, however, does not support such a conclusion.

Shelton did not pat the interior of the car or command Tyra to jump through the

window; he patted the bottom of the window so that Tyra would sniff from a higher position. To

do exactly that, Tyra propped herself up using the side of the door and followed the odor of

narcotics from inside the vehicle. She followed the odor and, in doing so, passed her snout

through the open window. Any dog would have done the same.

The Court is still unconvinced that the sniff at issue constituted an invasion of the

vehicle’s interior as considered in the Sharp case. Shelton’s body camera footage showed that

Tyra’s snout partially passed the side of the window while following the odor of narcotics. At

most, Tyra’s snout passed the threshold—not her entire head or body. And even if the Court

found that this action constituted an invasion, the instant matter is more analogous to an

instinctive jump rather than an invasion that violates the Fourth Amendment.

In fact, the officers testified that they would not want one of their dogs to enter anyone’s

vehicle for safety concerns. Shelton further testified that patting the car door and getting Tyra

to smell from a higher position was not out of the ordinary, and that Tyra had not given false

positive hits before. The officers did not encourage or facilitate Tyra to “jump” into the car. She

was simply commanded to prop herself up to sniff from a higher position, and any intrusion

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into the vehicle—if any at all—was instinctive and the result of Tyra following the odor of

narcotics found within the vehicle. Accordingly, the sniff conducted by Shelton and Tyra did not

violate the defendant’s Fourth Amendment protections.

C.

K9 Unit Training

In the defendant’s reply and at the hearing on the motion to suppress, he called into

question Tyra’s qualifications and training to perform as a narcotics detection K9 unit. His

argument primarily consisted of pointing out the lack of official documentation presented by

the Government and taking issue with Tyra’s shorter stature. He posited that a dog that could

not get a proper sniff could not serve as a qualified K9 unit. The evidence, however, shows that

Tyra was properly trained.

While the certificates of training were not offered into evidence, there was ample

testimony about the training program that Shelton and Tyra undertook both before and after

they began working together. Further, the testimony showed that Tyra has been a reliable K9

unit when it comes to the detection of narcotics. Shelton even testified that he was not aware of

any instance where Tyra had hit on narcotics when none were present. Accordingly, the Court

finds that Tyra was properly trained to conduct sniff searches.

III.

Conclusion

For the aforementioned reasons, the Court hereby ORDERS as follows:

1.

the defendant’s motion to suppress (DE 13) is DENIED; and

2.

trial in this matter is set for January 21, 2025, at 9:00 a.m. in the United States

District Court in Lexington, Kentucky. It is further ordered that counsel and all parties shall

be present at 8:30 a.m.

This 9th day of December, 2024.

6

APPENDIX III

APPENDIX III: Opinion of the Court of Appeals for the Sixth Circuit affirming, United

States of America v. Fellmy, Case No. 25-5831 entered on January 23, 2026, at Docket

Entry 34-2.

III

Case: 25-5381

Document: 34-1

Filed: 01/23/2026

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kelly L. Stephens

Clerk

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: January 23, 2026

Ms. Brittany Baker

Mr. Charles P. Wisdom Jr.

Office of the U.S. Attorney

Eastern District of Kentucky

260 W. Vine Street

Suite 300

Lexington, KY 40507-1612

Mr. Jeffrey C. Rager

Rager Law Firm

201 W. Short Street, Suite 820

Lexington, KY 40507

Re:

Case No. 25-5381, USA v. Steven Fellmy

Originating Case No. 5:24-cr-00006-1

Dear Counsel,

The court today announced its decision in the above-styled case.

Enclosed is a copy of the court’s published opinion together with the judgment which has

been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Kelly L. Stephens, Clerk

Cathryn Lovely

Deputy Clerk

cc: Mr. Robert R. Carr

Enclosures

Mandate to issue.

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0021p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

│

>

v.

STEVEN TILDEN FELLMY,

Defendant-Appellant.

│

│

│

│

│

┘

No. 25-5381

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:24-cr-00006-1—Karen K. Caldwell, District Judge.

Decided and Filed: January 23, 2026

Before: GRIFFIN, THAPAR, and HERMANDORFER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Jeffrey C. Rager, RAGER LAW FIRM, PLLC, Lexington, Kentucky, for

Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,

Kentucky, for Appellee.

The court delivered a PER CURIAM opinion.

THAPAR, (pp. 12–26) and

HERMANDORFER (pp. 27–34), delivered separate concurring opinions.

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_________________

OPINION

_________________

PER CURIAM.

Following an anonymous tip, police found a large quantity of

methamphetamine in Steven Fellmy’s car. Fellmy contends that the drugs should have been

suppressed at trial because the officers unlawfully searched his car using a police dog.

We affirm.

I.

Deputy Michael Raisor received a tip that a man named Steven Fellmy was transporting

drugs through Mercer County, Kentucky, in a silver Ford Mustang with a black racing stripe.

After he saw a car matching that description, Raisor pulled behind the Mustang and observed

that its license plate wasn’t illuminated. He also saw the Mustang make a right turn without

signaling. So Raisor pulled the car over. He first verified that Fellmy’s license-plate number

matched the police department’s records and that his name matched the anonymous tip. Then

Raisor waited for backup to arrive.

After other officers reported to the scene, Raisor directed Fellmy to step out of the

Mustang. Raisor then asked Fellmy if the officers could search his vehicle. Fellmy said no. So

Corporal Isaac Shelton, a K-9 officer, conducted a dog sniff for the presence of drugs. Shelton

walked a drug dog named Tyra around the vehicle on a leash so she could sniff various parts of

the car. When he reached the open driver-side window, Shelton tapped the windowsill. In

response, Tyra jumped up onto the door of Fellmy’s car and sniffed for drugs. When she didn’t

alert, the officer walked Tyra around to the passenger side and tapped on the windowsill. Tyra

once again jumped up onto the car door with her two front paws resting on the windowsill and

stuck her nose partially through the open window. This time, she alerted to the presence of

drugs.

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Officers then searched Fellmy’s car and found a bag containing a large crystal of

methamphetamine. They also searched Fellmy’s person and found heroin along with more

methamphetamine. So Fellmy was arrested and charged with possession of methamphetamine

with intent to distribute.

Before trial, Fellmy moved to suppress the drugs.

He argued that the officers

(1) unlawfully seized him by ordering him to exit his vehicle and (2) unlawfully searched him by

directing the drug dog to jump onto the car door to sniff inside it. But the district court denied

his motion to suppress. It found that police officers have an “unequivocal right” to order a driver

out of his car after a traffic stop for safety reasons. R. 24, Pg. ID 64–65. So no unlawful seizure

occurred. The district court also held that the officers hadn’t unlawfully searched Fellmy’s car

because they didn’t “encourage or facilitate” Tyra to put her head into the vehicle. Id. at 66.

Fellmy later filed a motion in limine to exclude the bag of methamphetamine from trial.

He argued that the drugs were not properly authenticated under Federal Rule of Evidence 901

because police records showed significant differences in drug weight and because the

government had not maintained an adequate chain of custody.

And Fellmy asked for an

evidentiary hearing to present evidence supporting this claim. The district court again denied

Fellmy’s motion. It observed that a motion to suppress would have been a more appropriate way

to raise the argument and that Fellmy could adequately dispute the evidence’s authenticity via

cross-examination. Accordingly, the court admitted the drugs.

A jury then convicted Fellmy of trafficking methamphetamine, and the district court

sentenced him to 300 months in prison to be followed by ten years of supervised release. Fellmy

timely appealed his conviction. He contends the district court erred by admitting the drugs.

II.

Fellmy first argues that the drugs should be suppressed because the officers found the

drugs following both a search and a seizure that violated the Fourth Amendment. The Fourth

Amendment protects “the right of the people” to be “secure in their persons . . . and effects,

against unreasonable searches and seizures.” U.S. Const. amend. IV. To determine whether the

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officers violated the Fourth Amendment, we ask two questions. Did they commit a search or a

seizure? And if so, was that search or seizure unreasonable?

On appeal of a motion to suppress, we review a district court’s factual findings for clear

error and its legal conclusions de novo. United States v. Quinney, 583 F.3d 891, 893 (6th Cir.

2009).

A.

Start with Fellmy’s seizure argument. Fellmy contends that the drug evidence should

have been suppressed because the officers unconstitutionally seized him when they ordered him

to step out of his vehicle during the traffic stop.

And Fellmy believes that seizure was

unreasonable because officers asked him to exit the vehicle only as pretext to perform a dog

sniff. Appellant Br. at 18.

But officers may always order drivers out of their car during a lawful police stop.

Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). Why? Because officers must be able to

“exercise unquestioned command of the situation” to minimize danger for both the officers and

the driver. Arizona v. Johnson, 555 U.S. 323, 330 (2009) (quoting Maryland v. Wilson, 519 U.S.

408, 414 (1997)). The officers’ subjective motivation doesn’t matter. Cf. Whren v. United

States, 517 U.S. 806, 813 (1996). And Fellmy admits that he had failed to signal at a right turn,

and thereby committed a traffic violation. When police see a traffic violation, they can lawfully

stop the driver. See id. at 819. That means Officer Raisor had conducted a lawful police stop.

So the officers didn’t unlawfully seize Fellmy when they asked him to exit his car.

B.

Fellmy next contends that Tyra’s dog sniff—which led to the discovery of the drugs after

she alerted—amounted to an unconstitutional search.

The Supreme Court has identified two ways to define a Fourth Amendment search. One

test asks whether officials intruded on an individual’s “reasonable expectation of privacy.”

California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347,

360 (1967) (Harlan, J., concurring)). And more recently, the Supreme Court explained that

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officials also commit a search by “physically intruding on” constitutionally protected property in

“an attempt to find something or to obtain information.” Florida v. Jardines, 569 U.S. 1, 5

(2013) (citation omitted); United States v. Jones, 565 U.S. 400, 408 n.5 (2012). Jones made

clear that Katz’s “reasonable-expectation-of-privacy test” was “added to, not substituted for” this

property-based test, which follows the common-law understanding of trespass. 565 U.S. at 409

(emphasis in original). Fellmy contends that the officers’ actions were a search under both Katz

and Jones. He’s wrong on both counts.

1.

The officers didn’t perform a search under Katz.

Officers don’t violate a driver’s

reasonable expectation of privacy when they walk a trained drug dog around a lawfully stopped

car to sniff for drugs. See United States v. Place, 462 U.S. 696, 707 (1983). That’s because drug

dogs alert only when they smell drugs. So everything inside the car—except drugs—remains

private. See id. As for the drugs themselves, no one has a reasonable expectation of privacy in

such illegal contraband. Illinois v. Caballes, 543 U.S. 405, 408 (2005). What’s more, drivers

already retain a diminished expectation of privacy in the interior of their cars. See California v.

Carney, 471 U.S. 386, 391 (1985). Cars can be quickly moved between different jurisdictions.

Id. Because that makes it more difficult to get a warrant to search a car, officers have more

leeway to investigate cars without violating the Fourth Amendment. Id. at 390.

Under Katz and progeny, Officer Shelton conducted a permissible dog sniff. Fellmy had

been lawfully pulled over on a public road after committing a traffic violation. See Whren, 517

U.S. at 819. And Tyra was a trained and certified drug dog. So when Tyra formally “alerted” to

the presence of drugs, the officers had not committed a Fourth Amendment search. R. 29, Pg. ID

85; Caballes, 543 U.S. at 409.

Fellmy disagrees, hanging his hat on United States v. Sharp, 689 F.3d 616 (6th Cir.

2012). In Sharp, we held that officers didn’t commit a search after their drug dog jumped into a

car during a drug sniff. Id. at 617. We reasoned that when dogs take “instinctive” actions, like

jumping into a car, a Fourth Amendment search doesn’t occur unless the officers “encouraged or

facilitated” the dog’s action. Id. at 620. So Fellmy contends that Officer Shelton committed a

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search because Shelton “directed” Tyra to jump up on the driver’s and passenger’s doors and put

her head into the cab of the car. Appellant Br. at 22; see also Sharp, 689 F.3d at 620.

But this case is a far cry from Sharp. For starters, the dog in Sharp jumped through an

open window and explored the interior of the car. 689 F.3d at 617–18. Here, by contrast, Tyra

momentarily poked her nose partially inside an open window. For Katz purposes, we doubt that

kind of minimal intrusion—through “sui generis” means that could “only reveal[] the possession

of contraband”—violated Fellmy’s already diminished expectation of privacy in the interior of

his car. Caballes, 543 U.S. at 408–09.

In any event, the district court rendered a factual finding that the officers didn’t instruct

Tyra to put her nose into the car. While officers signaled for her to jump onto the door by

patting the windowsill, they never patted inside the car or provided any other signal for her to

explore the car’s interior. Instead, the district court concluded that Tyra “instinctive[ly]” leaned

her head towards open car windows to sniff. R. 29, Pg. ID 173; R. 24, Pg. ID 66; see Sharp, 689

F.3d at 620. Nor did the officers open the car windows to facilitate that sniff—Fellmy had

already opened them when he was pulled over, and the officers did “not have an affirmative duty

to close the windows in preparation for the dog sniff.” Sharp, 689 F.3d at 619 (quotation

omitted) (distinguishing between the driver opening the point of entry, such as a hatchback or

window, and officers themselves opening the point of entry).

Fellmy’s objection under Sharp thus boils down to a different reading of the factual

record about the officers’ role in facilitating Tyra’s sniffs of the car’s interior. “Where there are

two permissible views of the evidence, however, the factfinder’s choice between them cannot be

clearly erroneous.” United States v. Jackson, 154 F.4th 422, 430 (6th Cir. 2025) (citation

omitted). So Sharp does not support Fellmy’s Fourth Amendment claim.

2.

Fellmy’s arguments under Jones also fail. As noted, officials commit a search when they

“physically occup[y]” or “physically intrud[e]” on private property to find information. Jones,

565 U.S. at 404, 408 n.5; Jardines, 569 U.S. at 5. Fellmy argues that the officers’ actions were a

Jones search because Tyra, by “standing on her hind legs and sticking her nose into the interior

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of the car,” committed a common-law “trespass against property, i.e. chattel” under Kentucky

law. Appellant Br. at 20–21.

The officials’ actions met part of the Jones test. Fellmy’s car was constitutionally

protected property. The Fourth Amendment protects “persons, houses, papers, and effects,” and

Fellmy’s car falls within that protection because the Supreme Court has told us that cars are

“effect[s].” U.S. Const. amend. IV; Jones, 565 U.S. at 404 (quotation omitted). And Tyra’s

presence at the scene—and subsequent alleged trespass—was intended to obtain information.

That’s because she was trying to sniff the open car windows to check for drugs.

But Tyra’s conduct in performing the free-air sniff around Fellmy’s vehicle didn’t

constitute a search under Jones. That’s because Tyra merely made incidental contact with the

car while performing the challenged sniffs. Most of Tyra’s body, including her nose, didn’t

touch Fellmy’s car. Only Tyra’s front paws made fleeting contact with the car’s windowsills—

with most of her weight still resting on the ground. Nor, moreover, did the fleeting contact

between Tyra’s front paws and Fellmy’s vehicle—which, again, is the only “physical” contact

Fellmy cites, Jones, 565 U.S. at 405—itself communicate any information. Similar contact, we

previously held in the context of briefly “sliding” a credit-card “through a scanner” like the ones

available at gas stations and grocery stores, does “not involve” the kind of “physical intrusion”

Jones regulates.

modified).

United States v. Bah, 794 F.3d 617, 623, 630 (6th Cir. 2015) (citation

Other circuits have noted the same in post-Jones cases involving police dogs’

touching (and indeed entry) of vehicles. See United States v. Keller, 123 F.4th 264, 268–69 (5th

Cir. 2024) (collecting cases).

Taylor v. City of Saginaw, 922 F.3d 328, 332–33 (6th Cir. 2019), does not change that

conclusion. In that case, this court concluded that city officials committed a trespass—and thus a

search—when they chalked the bottom of a car tire to track how long the vehicle had been

parked. Id. at 332–33. According to Fellmy, Tyra made similarly “slight” contact with his car,

so that’s enough to constitute a search under Taylor. 922 F.3d at 333.

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But Tyra’s brief jump looks nothing like the continuous contact in Taylor. There,

officers chalked car tires. Id. at 330–31. Those marks then remained on the tires—sometimes

for “several hours”—so officers could determine how long the cars had been parked. Taylor v.

City of Saginaw, 11 F.4th 483, 486 (6th Cir. 2021); see Taylor, 922 F.3d at 330. In other words,

the officers intentionally made a physical alteration of the vehicle that was lasting and integral to

the search method at issue. In finding a search, Taylor thus relied on Jones, which stressed that

“the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to

monitor the vehicle’s movements, constitutes a ‘search.’” Jones, 565 U.S. at 404 (emphases

added). That continued occupation in Jones was a GPS device attached to the underside of a car

for four weeks. Id. at 403. So just as in Taylor, the officers made contact with a car and then left

something behind for a significant period: a GPS tracker. Id. There’s a world of difference

between such lasting contact and the limited and incidental contact of the dog here. Note too

that, unlike in Taylor or Jones, Tyra didn’t leave anything behind after she got off Fellmy’s car.

Taylor, 922 F.3d at 332–33; Jones, 565 U.S. at 403.

Heeding that difference makes sense because, taken to its logical conclusion, Fellmy’s

argument leads to absurd results. If the incidental contact of Tyra’s paws on Fellmy’s door was a

search, then the Fourth Amendment—and officers’ ability to carry out lawful, open-air sniffs of

vehicles—would toggle on and off based on things like the height of the drug dog police use, the

size of the car stopped, the particular placement (e.g., glove compartment versus wheel well) of

drugs within the car, and whether car doors or windows happen to be left open during the sniff.

Tyra is “shorter than the average German Shepherd,” so she rested her paws on Fellmy’s car

door to sniff through his open windows. R. 29, Pg. ID 115. But a larger drug dog could sniff

through the windows without ever touching Fellmy’s car (though perhaps not for a raised truck

or SUV). Cf. Place, 462 U.S. at 707. So, by Fellmy’s logic, that wouldn’t be a search.

Likewise, if officers had placed a stepstool next to Fellmy’s car for Tyra to stand on, that

wouldn’t be a search either according to Fellmy’s view. The same would seem to follow if the

officers had lifted Tyra so her nose was at window level. Or if Fellmy had left his door ajar upon

exiting the vehicle.

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Even worse, apply Fellmy’s reasoning to officers themselves. If an officer rests his arm

on a car door while he looks through the window for contraband, Fellmy’s rule would call that a

search.1 But if the officer simply left his arms at his sides, the very same glance through the

window wouldn’t be a search. Or what if the officer knocked on a car window to order a

defendant to roll it down? If he then saw contraband, would that be a search because the officer

had made contact with the window?

Neither logic nor the Fourth Amendment demands such implausible distinctions. To the

contrary, injecting such arbitrary factors into the calculus risks hampering law enforcement’s

ability to efficiently and effectively investigate at traffic-stop scenes, which already are

“especially fraught with danger to police officers.” Arizona v. Johnson, 555 U.S. 323, 330

(2009) (citation omitted).

For the above reasons, we conclude that the officers didn’t violate the Fourth Amendment

by virtue of Tyra’s brief contact with Fellmy’s car during her open-air sniff for drugs.

III.

Fellmy also raises an evidentiary challenge, arguing the court should have excluded the

drug evidence based on issues with the chain of custody. Among other concerns, Fellmy

believes the evidence was inadmissible because officials recorded different weights for the drugs

at different times and because the police officers placed the drugs on a table for a “glamour shot”

with Tyra. Appellant Br. at 7–8, 26–27. And Fellmy contends that the district court disregarded

these arguments because it incorrectly concluded that his argument should have been made in a

motion to suppress, not a motion in limine. Finally, Fellmy claims that the district court erred by

denying his request for an evidentiary hearing on the chain-of-custody question.

We review a district court’s evidentiary rulings for abuse of discretion. Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 141 (1997).

1

And that result contradicts both logic and longstanding Supreme Court precedent. See Texas v. Brown,

460 U.S. 730, 740 (1983) (“The general public could peer into the interior of [an] automobile from any number of

angles; there is no reason [officers] should be precluded from observing . . . that portion of the interior of an

automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police

officers.”).

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As a threshold matter, Fellmy is wrong to suggest that the district court didn’t engage

with his exclusion argument. The district court didn’t deny his motion in limine solely based on

its determination that he should have raised these arguments in a motion to suppress. While the

court “note[d]” that a motion to suppress would have been more appropriate, it still analyzed the

merits of Fellmy’s arguments. R. 62, Pg. ID 399. Specifically, it concluded that concerns about

a break in the chain of custody “go[] to the weight of the evidence.” Id. And it observed that

Fellmy could adequately present his concerns via cross-examination at trial. Id.

In any event, the district court didn’t abuse its discretion by admitting the

methamphetamine. Evidence is admissible as authentic if the proponent produces “evidence

sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid.

901. For physical evidence, that requires showing there is no “reasonable probability” that the

evidence has been misidentified or altered. United States v. Allen, 106 F.3d 695, 700 (6th Cir.

1997). So a movant seeking exclusion must establish more than a mere “possibility” that the

evidence has been tampered with. Id. Fellmy hasn’t shown that here.

Start with Fellmy’s claim that the methamphetamine evidence weighed different amounts

at different times before trial. While the recorded weights did vary, the record reflects that the

drugs’ packaging was changed at various stages while weighed in police custody and testing.

The district court thus admitted the drug evidence while permitting Fellmy to cross-examine

witnesses about those discrepancies. The district court did not abuse its discretion in rejecting

Fellmy’s request to entirely exclude the evidence based on his arguments about drug “weight”

and packaging changing “over time.” United States v. Allen, 619 F.3d 518, 525 (6th Cir. 2010).

Fellmy’s arguments pose “jury questions” that “go[] to the weight of the evidence, not its

admissibility.” Id.

That leaves Fellmy’s general concerns about breaks in the chain of custody. Fellmy

mainly repeats his pretrial contention that the officers improperly left the bag of drugs on a table

for a glamour shot with Tyra. But he also raises concerns that surfaced during trial (which he

contends would have been considered at his requested evidentiary hearing). Those include the

government’s failure to provide a list of all the officers who had handled the evidence, Raisor’s

belief that the chain of custody only began once the drugs were placed in the police department’s

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evidence room, and Raisor’s potentially inconsistent testimony about the bags he used to hold

the drugs. Perhaps those facts show that the department didn’t use best practices to store the

evidence. Yet they don’t create a “reasonable probability” that someone with access to the

evidence tampered with it. Allen, 106 F.3d at 700. For example, Fellmy provides no allegations

about how the drugs were tampered with during the glamour shot. As the district court said,

such vague concerns are for a jury to assess because chain-of-custody issues go to the weight of

evidence, not its admissibility. See Allen, 619 F.3d at 525. So the district court didn’t abuse its

discretion by admitting the drugs.

Finally, the district court didn’t err by refusing Fellmy’s request for an evidentiary

hearing before trial. Whether a district court chooses to “hold an evidentiary hearing is within

the discretion of the trial court,” and the district court properly determined that an evidentiary

hearing wasn’t needed here. United States v. O’Dell, 805 F.2d 637, 643 (6th Cir. 1986). Fellmy

failed to raise any specific evidence of tampering in his motion to exclude the drugs. And

Fellmy’s general concerns about tampering—including the chain-of-custody evidence he

adduced at trial—were appropriate for the jury. After weighing all the evidence, the jury still

convicted him.

The district court properly considered and denied Fellmy’s motion in limine.

*

We affirm.

*

*

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_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. This is an easy case under Katz’s reasonableexpectation-of-privacy test for the reasons stated in the per curiam opinion.

But I write

separately to discuss the many issues raised by Fellmy’s claim that the officers committed a

search under Jones when Tyra rested her paws on Fellmy’s car. That claim complicates this

otherwise simple case.

I.

A.

Start with first principles. The Fourth Amendment protects citizens’ right to be “secure

in their persons . . . and effects, against unreasonable searches and seizures.” U.S. Const. amend.

IV. As relevant here, that prohibition has two key terms: “searches” and “unreasonable.” To

violate the Fourth Amendment, the officers must have committed a search, and that search must

have been unreasonable. And to understand those terms, we look to their meaning at the time of

the Founding.

The Supreme Court hasn’t always done that. So over time, Fourth Amendment doctrine

has grown into a morass of conflicting and indeterminate rules, often relying on amorphous tests

like “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967)

(Harlan, J., concurring). Those tests have resulted in confusion about both the Amendment’s

scope and its substance. See Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv.

L. Rev. 757, 761–800 (1994).

But more recently, the Court has tried to anchor the Fourth Amendment to its original

meaning by turning to the common law. See United States v. Jones, 565 U.S. 400, 407, 408 &

n.5 (2012). Under Jones, officials commit a Fourth Amendment search when their actions

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(1) are intended to discover information and (2) violate the common law. Id. That approach

makes some sense.1

First, the ordinary meaning of the word “search” is a purposeful, investigative act. See

Morgan v. Fairfield County, 903 F.3d 553, 568 (6th Cir. 2018) (Thapar, J., concurring in part

and dissenting in part); Search, Webster’s Third New International Dictionary of the English

Language (2002); see also 2 Noah Webster, An American Dictionary of the English Language

66 (1828) (reprint 6th ed. 1989). That fits with the first part of the Jones test, which treats an

official’s act as a “search” only if it was intended to discover information. See 565 U.S. at 408

n.5.

Second, the Fourth Amendment’s command that searches not be “unreasonable” appears

to refer to the common law. After all, “reasonableness” has acted as shorthand for contemporary

common law since the Founding. See, e.g., David A. Sklansky, The Fourth Amendment and

Common Law, 100 Colum. L. Rev. 1739, 1777 (2000) (“The English common-law tradition to

which the revolutionaries appealed often tied legality to ‘reasonableness.’”); 2 Algernon Sidney,

Discourses Concerning Government 120 (Philadelphia, C.P. Wayne 1805) (describing common

law as “written reason”). That maps onto the second part of the Jones test, which asks if an

official’s acts violated the common law. 565 U.S. at 406–08. Of course, Jones collapsed the

common-law reasonableness requirement into the very definition of a Fourth Amendment

“search,” rather than first asking whether a purposeful, investigative act occurred and then

analyzing its “reasonableness.” See id.; U.S. Const. amend. IV; see also Amar, supra, at 769.

But in practice, the Jones test focuses on both key terms in the Fourth Amendment—search and

reasonableness—by covering actions that violate the common law to discover information.2

1

Judge Hermandorfer’s thoughtful concurrence makes a good case for why Jones shouldn’t apply to dog

sniffs. That would certainly make life easier for courts and police alike. See Hermandorfer Conc. at 29. She further

observes that applying Jones requires officers to confront “arcane property rules” and “[d]octrinal trouble.” Id. at

31–32. I agree that these questions aren’t easy. But as inferior courts, we must do our best to faithfully apply

Supreme Court precedent until the Court tells us otherwise. So I do my best to answer the difficult questions Jones

poses.

2

Judge Hermandorfer correctly points out that the Supreme Court has reasoned that dog sniffs aren’t

searches in certain situations. See Hermandorfer Conc. at 27–28. While I agree with the ultimate result that there

was no Fourth Amendment violation here, I would approach the question somewhat differently. I believe that when

officers direct a dog to sniff a piece of luggage or a car, they are engaged in a “purposeful, investigative act.”

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B.

Focusing on the common law gets us closer to the Fourth Amendment’s original

meaning. But it also raises difficult questions. To start, what common law should courts look at

to judge reasonableness? There are two possible paths.

One thoughtful scholar has suggested that the Fourth Amendment refers to a federal

common law of “reasonableness.” See Amar, supra, at 800–11.3 Under that method, federal

courts would develop a body of “reasonableness” doctrine over time, using common-law-style

reasoning to decide what kinds of searches are and are not reasonable. Courts could consider,

among other things, the probability that a search will uncover what the government is looking

for, the importance of that object, the intrusiveness of the search, and any available alternatives

to accomplish the same goal. See id. at 801.

Under this approach, the officers’ actions here would certainly have been reasonable.

The probability that officers would discover drugs in Fellmy’s car skyrocketed once Officer

Raisor confirmed critical details in the anonymous tip warning that Fellmy would be transporting

drugs.

Finding illegal drugs—highly mobile and dangerous contraband—is important for

society. And the officers’ actions were minimally intrusive because they only led Tyra around

the outside of the car. Nor are there less invasive alternatives to conducting a dog sniff. After

all, drug dogs’ “sui generis” ability to detect drugs by smell from the exterior makes them less

intrusive than any other method of searching a vehicle. United States v. Place, 462 U.S. 696,

707 (1983). So if courts applied a federal common law of reasonableness, the officers’ actions

surely pass muster—no Fourth Amendment violation occurred.

Morgan, 903 F.3d at 568 (Thapar, J., concurring in part and dissenting in part). But I agree that this search doesn’t

violate the Fourth Amendment because it qualifies as reasonable. A dog sniff is reasonable in the same way an

officer walking up and tapping on a car window is reasonable. Of course, Jones tackled this question a little

differently by analyzing the common law to determine what counts as a Fourth Amendment search. Yet even if

Jones applies here, the officer didn’t violate the Fourth Amendment, as I discuss below.

3

Admittedly, Professor Akhil Amar does not specifically refer to the federal common law and primarily

considers doctrinal development through state-court actions. Nevertheless, federal courts could easily employ his

theory in the Fourth Amendment context.

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The second path would tie reasonableness to state common law. Although Jones isn’t

clear on this point, this appears to be the path the Supreme Court chose. Under Jones, a search

occurs when officers “trespass” onto constitutionally protected property to discover information.

565 U.S. at 407–11, 408 n.5. To determine what qualifies as a trespass, Jones directs us to look

at the “common-law [of] trespass” to personal property (i.e., chattels). Id. at 405; accord Florida

v. Jardines, 569 U.S. 1, 8 (2013). And the Supreme Court hewed to this understanding in

subsequent cases employing the Jones test. See Jardines, 569 U.S. at 8.

In Jardines, the Court applied the law of trespass—including the doctrine of implied

license to enter—to consider whether officers committed a search when they conducted a dog

sniff on the front porch of a home. Id. at 3–4. Admittedly, neither Jones nor Jardines analyzed

specific state-court trespass cases. See Jones, 565 U.S. at 404–11; Jardines, 569 U.S. at 6–11.

But state common law still provides the requirements to make out trespass claims.

See

Restatement (Second) of Torts § 218 (Am. L. Inst. 1965).4

Other circuits have followed this state-law approach. For example, in United States v.

Sweeney, officers discovered a gun in the basement of a home shared by various individuals.

821 F.3d 893, 898 (7th Cir. 2016). The Seventh Circuit considered the Second Restatement of

Torts and specific state-court cases to conclude that the officers didn’t trespass under Jones when

they looked through the basement. Id. at 900. And in United States v. Carloss, the Tenth Circuit

examined state-court cases across different states to determine whether a “No Trespassing” sign

had revoked the implied license allowing officers to conduct a knock-and-talk—and thus

whether officers had committed a Jones search. 818 F.3d 988, 995 (10th Cir. 2016). State

courts themselves similarly look to state common law when dealing with Fourth Amendment

questions. See, e.g., People v. Kendricks, 243 N.E.3d 211, 218 (Ill. App. Ct. 2023); State

v. Myers, ---P. 3d---, No. 51671, 2025 WL 2798583, at *6 (Idaho Ct. App. Oct. 2, 2025).

So although Jones’s reference to “common law” could be read to reference federal common law,

4

Jones also doesn’t indicate whether the common law of the state where the alleged violation occurred or

an approximation of all state common law controls the meaning of “trespass.” 565 U.S. at 407–11, 408 n.5. But it

seems like the Supreme Court is looking at general common-law principles of trespass. That would make a lot of

sense from a consistency perspective to ensure the Fourth Amendment doesn’t change from one state to the next. In

this case, however, it doesn’t matter because Kentucky’s law tracks the general principles of trespass to chattels.

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courts have generally operationalized its test by looking to state common law. Jones, 565 U.S. at

407.

C.

But following the common law presents a second important question:

Should we

consider contemporary or Founding-era common law? See Jones, 565 U.S. at 419 n.2 (Alito, J.,

concurring in the judgment).

Based on the original structure and function of the Fourth

Amendment, the answer appears to be current common law.

To see why, consider the nature of the interests that the Fourth Amendment protects:

“property rights.” Id. at 405 (majority opinion). The property protections enshrined in the

Fourth Amendment developed naturally from colonial-era decisions. See Entick v. Carrington

(1765) 19 Howell’s State Trials 1029 (CP); Wilkes v. Wood (1763) 98 Eng. Rep. 489 (KB). In

cases like Entick and Wilkes, the English courts “transform[ed] trespass from a mere civil tort to

a constitutional protection” by applying real restrictions to government searches of homes and

effects for the first time. Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 897

(2014) (emphasis omitted). And each decision emphasized safeguarding citizens’ interest in

their property. See Entick, 19 Howell’s State Trials at 1066 (“The great end, for which men

entered into society, was to secure their property.”); Wilkes, 98 Eng. Rep. at 498 (emphasizing

that harming the “person and property of every man” may subvert “liberty”). The framers

constitutionalized this property-rights focus by specifying that the Fourth Amendment shields

“effects” and “houses” from unreasonable searches and seizures. U.S. Const. amend. IV; see

Boyd v. United States, 116 U.S. 616, 630 (1886).

And those property rights change over time. “Property interests . . . are defined by

existing rules or understandings. . . .” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). When those rules shift, property rights shift as well. See, e.g., Ruckelshaus v. Monsanto

Co., 467 U.S. 986, 1001–04 (1984) (expanding property rights to cover certain intangible

property). Of course, there are limits to how much these rights can change. For instance, a state

can’t define away “traditional property interests long recognized under state law.” Phillips v.

Wash. Legal Found., 524 U.S. 156, 167 (1998) (analyzing the Fifth Amendment’s Takings

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Clause); see also Tyler v. Hennepin County, 598 U.S. 631, 638 (2023) (same). But as long as

state law doesn’t attempt to abrogate traditional property interests, courts should look to existing

law to determine what rights someone holds in his property.

Because current law governs property rights, it also determines how the Fourth

Amendment protects those property rights through the common law of trespass. After all,

personal-property ownership includes a bundle of different “sticks,” such as the right to

exclusively use and dispose of the property. Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 433 (1982) (quotation omitted). Owners enforce those rights through the tort of

trespass to chattels. See Restatement (Second) of Torts § 218. So when the underlying property

right to exclude someone from your property narrows, the tort of trespass to chattels also

narrows, and vice versa. See Jones, 565 U.S. at 419 n.2 (Alito, J., concurring in the judgment);

Slaybaugh v. Rutherford County, 114 F.4th 593, 598 (6th Cir. 2024) (observing that the right to

exclude is limited by existing rules and understandings).

This understanding of evolving property rights tracks how we’ve long thought about the

common law. Common law has always been continually “adapting” to new circumstances and

“the exigencies and usages of the country.” Joseph Story, Codification of the Common Law, in

The Miscellaneous Writings of Joseph Story 699, 702 (William W. Story ed., Boston, Little &

Brown 1852). And as Justice Scalia—the author of Jones—noted, “[t]here is nothing new or

surprising in the proposition that our unchanging Constitution refers to other bodies of law that

might themselves change.”

Georgia v. Randolph, 547 U.S. 103, 144 (2006) (Scalia, J.,

dissenting). So to the extent the Fourth Amendment looks to state common law, its protection is

pegged to an evolving body of law.5 Courts must therefore look to the current common law of

trespass to see how existing property rights cash out under the Fourth Amendment.

See

Carpenter v. United States, 585 U.S. 296, 402 (2018) (Gorsuch, J., dissenting).

5

I share Judge Hermandorfer’s concern that tying Fourth Amendment doctrine to evolving state law could

induce states “to stack the deck for or against police” by, for example, redefining trespass to prohibit longstanding

and traditionally permitted police practices. Hermandorfer Conc. at 32. But as the Supreme Court has noted

elsewhere, one “state law cannot be the only source” of content when the Constitution refers to common law. Tyler,

598 U.S. at 638. Rather, we look to broader common-law principles, history, and precedent to ensure states don’t

define away long-authorized practices—like dog sniffs. Id.

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This is consistent with how we think about the Fourth Amendment’s property-focused

neighbor—the Fifth Amendment. The Fifth Amendment requires the government to pay “just

compensation” for any “private property . . . taken for public use.” U.S. Const. amend. V. But

to determine what counts as private property, we look to existing state law. See Roth, 408 U.S.

at 577; Slaybaugh, 114 F.4th at 598. Thus, as that property law evolves, the types of claims

plaintiffs can bring under the Fifth Amendment also evolve. So too with the Fourth Amendment.

Hence “a latter-day alteration” of common-law trespass can rightly “produce a latter-day

alteration of the Fourth Amendment outcome—without altering the Fourth Amendment itself.”

Randolph, 547 U.S. at 143 (Scalia, J., dissenting); accord Sacharoff, supra, at 891 (“Jones seems

to envision a trespass test based upon contemporary state law trespass principles.”).

Tying the Fourth Amendment’s protection to current common law also conforms to the

original remedial structure behind the Bill of Rights. After all, the Fourth Amendment existed

for over a century before the Supreme Court created the suppression remedy. See Weeks v.

United States, 232 U.S. 383, 393 (1914). At the Founding, the Fourth Amendment could only be

vindicated following a violation of existing law. See Utah v. Strieff, 579 U.S. 232, 237 (2016);

Chaney-Snell v. Young, 98 F.4th 699, 717 (6th Cir. 2024); William Baude & James Y. Stern, The

Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1840 (2016). It went

like this: An official would commit a tort, like trespass. The victim would sue under thenexisting common law. See Sacharoff, supra, at 896–97 (observing that the plaintiffs in both

Entick and Wilkes sued for trespass). In response, the official would raise government immunity

as a defense. And to defeat that immunity, the plaintiff would argue that the official had violated

the Fourth Amendment. See Morgan, 903 F.3d at 574 n.2 (Thapar, J., concurring in part and

dissenting in part); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.

Rev. 547, 625–27 (1999). So the Fourth Amendment, as originally understood and implemented,

was invoked following a common-law violation. With no independent suit available, there was

no remedy to vindicate Fourth Amendment protections. See Bradford P. Wilson, Enforcing the

Fourth Amendment 16 (1986) (noting “[t]he framers assumed that” the need for Fourth

Amendment remedies “was met by the remedial aspect of the common law”). Although the

Supreme Court has now told us to enforce the Fourth Amendment differently, it makes sense that

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the Fourth Amendment’s scope tracks the common law in place at the time of the alleged

violation.

D.

Even assuming that current common law controls, Jones left open another question. The

Fourth Amendment violation in Jones hinged on whether placing a GPS device on a car for an

extended period counted as a trespass to chattels.

common-law trespass.

But state law recognizes two types of

One allows you to sue in court because the trespass damages or

dispossesses you of your property. The other only allows you to take some action—i.e., defense

of property—because the intrusion doesn’t cause damage or dispossession. See Restatement

(Second) of Torts § 217 cmt. a (“[A] trespass, though not actionable . . . may nevertheless be

important in the determination of the legal relations of the parties.”). Yet Jones doesn’t tell us

which one is relevant for Fourth Amendment purposes.

Take property-defense law in Texas. There, a trespass to chattels can occur even when

there is only an intentional harmless intrusion—like laying a hand on someone’s car. See Zapata

v. Ford Motor Credit Co., 615 S.W.2d 198, 201 n.4 (Tex. 1981). And that can justify the owner

using force to remove the intrusion—like knocking the hand off the car. Id.; accord Restatement

(Second) of Torts § 77. But to sue in court for trespass to chattels, Texas requires that a plaintiff

show damage to his property or dispossession thereof. See Zapata, 615 S.W.2d at 201 & n.4.

Harmless intrusion isn’t enough. So the Fourth Amendment question is this: Which kind of

trespass to chattels does Jones require?

Again, the Amendment’s original remedial structure may provide the answer. Because

the Fourth Amendment was only vindicated at the Founding by bringing a suit under existing

law, a trespass that merely changed the legal relationship between parties wouldn’t have been

enough. A plaintiff needed to get into court before he could litigate the Fourth Amendment.

Consider a Founding-era hypothetical. A constable harmlessly puts his hand on a citizen’s horse,

and the owner bats it away. And suppose then-existing law resembled Texas’s law. Without

damage to the horse (or dispossession), the owner can’t bring suit. If he can’t bring suit, then he

can’t vindicate his Fourth Amendment rights. So the Founding-era remedial scheme would

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provide no remedy for a Fourth Amendment violation, even if the constable had theoretically

committed a trespass to chattels.

In short, the Founding-era remedial scheme allowed a citizen to vindicate his Fourth

Amendment rights only after an actionable common-law violation—not just when the elements

of common-law trespass to chattels were met. Today, that distinction likely also applies to the

Jones test. A Fourth Amendment violation thus occurs when officials commit a trespass to

chattels that is actionable in court under current common law.

E.

That brings us to the present. What does current law require for a trespass-to-chattels

suit? The answer is clear: A plaintiff must suffer harm before he can bring a claim in court.

That harm can occur through the defendant either damaging the chattel or temporarily

dispossessing the owner of the chattel. See W. Page Keeton, et al., Prosser and Keeton on the

Law of Torts § 14, at 87 (5th ed. 1984) (requiring “damage to the chattel” or “loss of possession

. . . even if only for a brief interval”); Restatement (Second) of Torts § 218 (similar). In contrast,

no trespass claim arises when there is “a mere harmless intermeddling with goods.” Harper,

James and Gray on Torts § 2.3 (3d ed. 2025) (requiring “physical harm,” “destruction,” or

“dispossession” for a trespass-to-chattels claim).6

Consider the law of Kentucky—where the officers stopped Fellmy.

One Kentucky

treatise summarizes that a trespass-to-chattels claim arises when a defendant interferes with the

chattel and “(a) dispossesses the plaintiff of the property, (b) deprives the plaintiff of the use of

the property for a substantial time, (c) impairs the property as to its condition, quality, or value,

or (d) causes physical harm.” 13 David J. Leibson, Kentucky Practice Series Tort Law § 7:1

(2025–2026 ed.); accord Madison Cap. Co. v. S & S Salvage, LLC, 794 F. Supp. 2d 735, 740

(W.D. Ky. 2011) (defining trespass to chattels as “intentionally dispossessing another of [the]

chattel or using or intermeddling with a chattel in the possession of another” (quotation

6

It seems likely that requiring damage or dispossession to bring an action for trespass to chattels also

accords with the Founding-era rule. See Keeton, et al., supra, at 87; Marentille v. Oliver, 2 N.J.L. 379, 379 (1808).

But either way, it cashes out the same today because current common law controls whether officers violated the

Fourth Amendment.

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omitted)), aff’d, 507 F. App’x 528 (6th Cir. 2012). And Kentucky courts note that trespass to

chattels requires at least “minor damages or deprivation.”

Weatherly v. Hospice of Lake

Cumberland, Inc., No. 2018-CA-000248, 2019 WL 1422848, at *2 (Ky. Ct. App. Mar. 29, 2019)

(quoting Leibson, supra, § 7:1); see also Madison Cap., 507 F. App’x at 539.

Kentucky isn’t an outlier. Other states also require damage or dispossession to make out

a trespass-to-chattels claim. Arizona, for instance, demands a showing that the “plaintiff was

harmed by [the] defendant’s conduct.” McAlister v. Loeb & Loeb, LLP, 571 P.3d 891, 902 (Ariz.

2025). And in California, a trespass to chattels occurs when “an intentional interference with the

possession of personal property has proximately caused injury.” Jamgotchian v. Slender, 89 Cal.

Rptr. 3d 122, 134 (Ct. App. 2009) (cleaned up). Texas, following the Second Restatement,

similarly requires “actual damage to the property” or that the owner be deprived “of the

[property’s] use for a substantial period of time.” Zapata, 615 S.W.2d at 201. Courts in New

York, Ohio, and Maine agree. See Sch. of Visual Arts v. Kuprewicz, 3 Misc. 3d 278, 281 (N.Y.

Sup. Ct. 2003); Mercer v. Halmbacher, 44 N.E.3d 1011, 1018 (Ohio Ct. App. 2015); Cap. City

Renewables, Inc. v. Piel, 335 A.3d 588, 598 n.7 (Me. 2025).

Plugging this common-law requirement into the Jones test, we get the following rule: A

Fourth Amendment search occurs when officers “trespass” onto constitutionally protected

property to discover information and, in doing so, damage the property or temporarily dispossess

the owner of it. See Jones, 565 U.S. at 407–11 & n.5.

F.

Thus, under Jones, the officers didn’t unlawfully search Fellmy’s car. Despite Tyra

jumping on Fellmy’s doors, no trespass occurred because the jump neither dispossessed Fellmy

of his property nor damaged it. For one, Tyra’s jump didn’t dispossess him of his property.

Fellmy had been legally pulled over, and he retained possession of the car regardless of whether

Tyra momentarily touched its exterior. And her jump didn’t damage Fellmy’s vehicle, either.

Tyra’s front paws made only brief contact with the driver and passenger windowsills, and there

is no evidence of scratches or any other harm to Fellmy’s car. So no Fourth Amendment search

occurred, and the drug evidence shouldn’t have been suppressed.

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G.

Still, this interpretation of Jones has its own problems. If we tie Fourth Amendment

violations to damage, then does the permissibility of a dog sniff turn on whether the dog

scratched the car? And how much of a scratch is enough to implicate the Fourth Amendment?

Defendants may end up litigating the condition of their car’s paint job to try to suppress trial

evidence.7

What’s more, establishing a common-law foundation for interactions between citizens

and officers could lead to incoherent questions. Look at the law of property defense. Could a

driver really push off a police dog that had jumped onto his car by claiming the jump met the

elements of a harmless trespass to chattels? Or what if the officer laid his hand on a defendant’s

car—would the common law justify the owner batting the officer’s hand away? It’s dubious that

state common law best contemplates the unique deference that drivers owe officers following a

lawful police stop.

Relatedly, this interpretation may rely on unrealistic assumptions about what law

enforcement officers should be expected to know or consider. As the Supreme Court has

recognized, traffic stops are “dangerous encounters” and frequently lead to officers being

assaulted or even killed. Maryland v. Wilson, 519 U.S. 408, 413 (1997). So do we really want

officers to mentally survey the common law of different states while they are conducting dog

sniffs or other investigatory techniques? Should we even expect them to know that? See

Rudolph v. Babinec, 939 F.3d 742, 755 (6th Cir. 2019) (Thapar, J., concurring in part and

dissenting in part). In these cases, bright-line rules about how officers can conduct traffic stops

would be preferable.

7

Of course, these issues are a product of the Supreme Court’s creation of the Fourth Amendment

suppression remedy. Why? Because under the Fourth Amendment’s original remedial scheme, a citizen would

litigate damage to his property in a separate tort suit against the officer who committed the violation—not as a way

to keep evidence out of a criminal prosecution. So introducing evidence in Founding-era criminal proceedings

wouldn’t turn on the specifics of state tort claims. And any resulting damage to a car, for example, would be

litigated where it belongs—in a tort suit.

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H.

Anyone who has read to this point can understand that these doctrines are messy. And

courts have approached the questions raised by Jones and Katz from many different directions.

See Orin Kerr, The Two Tests of Search Law, 103 Wash. U. L. Rev. 309, 311 (2025); Amar,

supra, at 761–800. In that light, Professor Orin Kerr has attempted to harmonize these doctrines

around another theory: asking whether officials’ actions constituted an “intrusion.” Id. at 350.

This test comes from a doctrinal through-line within Supreme Court precedent and appears to

underlie most Fourth Amendment search cases. Since even before Katz, the Court has repeatedly

used the term “intrusion” when considering what actions count as a search. See, e.g., Silverman

v. United States, 365 U.S. 505, 509 (1961) (finding a search where there is a “physical

intrusion”); Jardines, 569 U.S. at 7 (same with an “unlicensed physical intrusion”); Grady v.

North Carolina, 575 U.S. 306, 310 (2015) (per curiam) (same when a device “physically

intrud[es] on a subject’s body”). And focusing on “intrusions” has the benefit of avoiding both

the amorphous privacy inquiry of the Katz test, and the potentially “unpredictable” propertybased questions under Jones. Kerr, supra, at 313, 322. Yet this theory could still reach many of

the same results as existing doctrine by finding that a search occurred when officials physically

intruded into a citizen’s property or committed an equivalent intrusion through “modern

technological equivalents.” Id. at 350.

So how would the “intrusion” test play out here? The through-line of Supreme Court

cases tells us that Tyra’s touching and sniffing of the car wasn’t a search. First, dog sniffs are

“much less intrusive than a typical search.” Place, 462 U.S. at 707. That makes sense. After all,

dog searches only tell us whether contraband is present. And there is no “legitimate privacy

interest” in contraband. Illinois v. Caballes, 543 U.S. 405, 409–10 (2005). Contrast that with

officers simply rummaging through the car, which allows officers to see not only contraband, but

also much more. Second, drivers of cars have a diminished expectation of privacy because cars

are mobile and drive on public roads. See California v. Acevedo, 500 U.S. 565, 571 (1991).

Finally, the officers didn’t direct Tyra to intrude into the cabin of the car. Rather, the officer

only tapped the outside of the car. Tyra put her nose through the window on her own and

without direction. Taken together, these actions don’t amount to the type of intrusion the

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Supreme Court has classified as a search. So under my understanding of Professor Kerr’s

approach and the underlying caselaw, the officers didn’t commit a Fourth Amendment search.

II.

The officers in this case didn’t violate the Fourth Amendment. But even if they had, that

wouldn’t be the end of our inquiry. Instead, we would ask whether suppressing the drugs from

Fellmy’s trial would have been an appropriate remedy. It wouldn’t. That’s because the officers

acted in good faith when they led Tyra around Fellmy’s car.

Unfortunately, the government failed to raise this argument. The Supreme Court has

reminded us that we generally shouldn’t decide issues not raised by the parties, so the per curiam

opinion declines to reach this question. See Wood v. Milyard, 566 U.S. 463, 473 (2012). Still,

this could have been a much easier case if the government had raised the good-faith issue.

To see why, consider the suppression remedy. Violations of the Fourth Amendment

don’t “automatically” warrant suppression. Herring v. United States, 555 U.S. 135, 147 (2009).

To the contrary, suppression is a “last resort.” Davis v. United States, 564 U.S. 229, 237 (2011)

(quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). That’s because suppression is a

judicially created remedy “designed to safeguard Fourth Amendment rights generally through its

deterrent effect.” Herring, 555 U.S. at 139–40 (quoting United States v. Calandra, 414 U.S.

338, 348 (1974)). And that remedy has a substantial cost to society: It conceals true, relevant

evidence and can let dangerous criminals back into their communities scot-free. See Davis, 564

U.S. at 237. So when we consider whether to suppress evidence, “the question turns on the

culpability of the police and the potential of exclusion to deter wrongful police conduct.”

Herring, 555 U.S. at 137. It’s only appropriate when its deterrent effect on unlawful police

conduct outweighs the substantial costs of suppression. Id. at 140–41.

Suppression survives that balancing test in relatively few cases. When police violate a

defendant’s rights “deliberately, recklessly, or with gross negligence,” then suppression may be

warranted.

Davis, 564 U.S. at 240.

In those cases, the Supreme Court has found that

suppression is “worth the price paid by the justice system” because of its potential to deter future

violations. Id. (quoting Herring, 555 U.S. at 144). On the other hand, when officers have a

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“reasonable good-faith belief” that their actions are lawful or when their violations are merely

negligent and “isolated,” suppression isn’t worth the cost. Id. at 238 (quotations omitted). And

to find whether that good-faith belief existed, we often look to existing precedent. Id. at 239.

The costs of suppression here far exceed the benefits of deterrence. That’s because

Officer Shelton acted with a good-faith belief that his actions were lawful when he conducted

Tyra’s drug sniff. The Supreme Court has long held that dog sniffs generally aren’t Fourth

Amendment searches when police have lawfully stopped a car. See, e.g., Caballes, 543 U.S. at

409; Place, 462 U.S. at 707. While Sharp implied that a search may occur when an officer

directs a drug dog to jump into the interior of a car, we’ve never held that a mere dog sniff

through an open window constitutes a search. United States v. Sharp, 689 F.3d 616, 618 (6th

Cir. 2012). After Fellmy was lawfully pulled over, Officer Shelton reasonably followed the

Supreme Court’s longstanding guidance when he led Tyra around Fellmy’s car and directed her

to sniff through an open window.

Likewise, Jones and its progeny wouldn’t have alerted a “reasonably well-trained officer”

that Shelton’s actions were unlawful. United States v. Leon, 468 U.S. 897, 923 (1984); see

Taylor v. City of Saginaw, 922 F.3d 328, 332 (6th Cir. 2019). For starters, neither placing a GPS

on a car nor chalking tires involves dogs. Jones, 565 U.S. at 403, 405 (trespass via GPS tracker);

Taylor, 922 F.3d at 332 (trespass via chalk).

What’s more, the brief contact here is

distinguishable from the continuous contact in Taylor and Jones. Unlike the chalk lines on tires

in Taylor, Tyra didn’t leave any marks behind. 922 F.3d at 332–33. And unlike the GPS tracker

stuck to the bottom of a car for four weeks in Jones, Tyra jumped on Fellmy’s door for only a

few seconds. 565 U.S. at 403. So a reasonable officer could have concluded that directing a dog

to briefly set its paws on a door—leaving nothing behind—didn’t run afoul of the Fourth

Amendment.

And that conclusion is even more reasonable considering the common law’s requirement

of dispossession or damage to make out a trespass claim. To justify suppression here, we’d need

to expect a police officer to extend existing precedent to a novel fact pattern and disregard the

common law. But that’s precisely the type of prediction that we don’t expect officers to make.

See Rudolph, 939 F.3d at 755 (Thapar, J., concurring in part and dissenting in part) (noting that

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law enforcement must apply caselaw while “protect[ing] the public in an uncertain and

dangerous world, not the cold crucible of the courtroom”).

At bottom, Officer Shelton didn’t commit the type of deliberate, reckless, or grossly

negligent conduct that suppression is designed to deter. See Davis, 564 U.S. at 240. So it

wouldn’t make sense to punish society—by suppressing evidence used to enforce its laws—

when the officers themselves wouldn’t have known their conduct violated the Fourth

Amendment.

*

*

*

When Jones tied the Fourth Amendment to the common law, it hewed closer to the

Amendment’s original meaning. But it also opened a can of worms that lower courts must work

through. This case illustrates how those questions shake out for an important investigative tool:

dog sniffs. In short, dog sniffs don’t violate the Fourth Amendment’s original meaning when the

drug dog makes harmless contact with a suspect’s car.

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_________________

CONCURRENCE

_________________

HERMANDORFER, Circuit Judge, concurring. I agree that Fellmy’s Fourth

Amendment argument fails for the reasons the per curiam opinion provides. I also agree with

much of Judge Thapar’s thoughtful concurrence. I write to flag the additional problems I see

with Fellmy’s technical-trespass theory as applied to the commonplace practice of open-air dog

sniffs.

I

“[T]he Fourth Amendment has to be applied on the spur (and in the heat) of the

moment.” Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001). So the Supreme Court

frequently blesses general categories of investigatory actions in ways knowable “beforehand.”

New York v. Belton, 453 U.S. 454, 458 (1981) (citation omitted); see Atwater, 532 U.S. at 347.

The result can preference bright-line rules, even when “each case” may not present “one of the

reasons supporting the authority” for permitting the conduct at issue. United States v. Robinson,

414 U.S. 218, 235 (1973).

The Supreme Court’s approach to regulating law-enforcement

practices, in short, often favors plain guidance over more “qualified,” fact-intensive tests lacking

ready “application by the officer in the field.” Belton, 453 U.S. at 458 (citation omitted).

Here, we’re asked to invalidate detection-dog Tyra’s open-air sniff of Fellmy’s vehicle at

a lawful traffic stop. I’d therefore treat as most probative the Supreme Court’s general approach

to that category of investigatory activity. And in a series of cases going back decades, the

Supreme Court has reiterated that dog sniffs of vehicles and effects in public places are “sui

generis” investigatory actions that do not effectuate a Fourth Amendment “search.” United

States v. Place, 462 U.S. 696, 707 (1983).

The Court’s first majority opinion dealing with the legality of dog sniffs came over forty

years ago in Place. There, the Court reasoned that a dog sniff of luggage in a public airport “did

not constitute a ‘search’ within the meaning of the Fourth Amendment.” Id. So too, in City of

Indianapolis v. Edmond, the Court observed that “walk[ing] a narcotics-detection dog around the

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exterior of” a car at a checkpoint “does not transform the seizure” of the car “into a search.” 531

U.S. 32, 40 (2000). More recently, in Illinois v. Caballes, the Court reiterated that a “dog sniff

conducted during a concededly lawful traffic stop” is “not a search subject to the Fourth

Amendment.” 543 U.S. 405, 408, 410 (2005).

The Court’s justification for that rule is threefold. First, open-air dog sniffs do not

require “opening” private effects. Place, 462 U.S. at 707; see also Edmond, 531 U.S. at 40 (“[A]

sniff by a dog that simply walks around a car is much less intrusive than a typical search.”)

(citation omitted). Second, they do not “expose noncontraband items that otherwise would

remain hidden from public view.” Caballes, 543 U.S. at 409 (quoting Place, 462 U.S. at 707).

And third, they “reveal[] no information other than the location of a substance that no individual

has any right to possess.” Id. at 410; see also Place, 462 U.S. at 707. To the Court, that last

feature distinguished dog sniffs from other tools—like the thermal-imaging device in Kyllo v.

United States, 533 U.S. 27 (2001)—“capable of detecting lawful activity” including the

“intimate details in a home.” Caballes, 543 U.S. at 409-10.

To be sure, some have criticized the Supreme Court’s rationales for deeming dog sniffs to

be non-“searches.”1 Others object to the routine use of investigatory dog sniffs as a matter of

policy.

See, e.g., Irus Braverman, Passing the Sniff Test:

Police Dogs as Surveillance

Technology, 61 Buff. L. Rev. 81, 94-98 (2013). But unless revisited by the Court, the precedents

governing open-air dog sniffs of vehicles and other effects continue to supply lower courts with

the general Fourth Amendment rule for assessing that category of law-enforcement activity. And

the rule is that such sniffs generally are not “searches” in the constitutional sense.2

1

See, e.g., Caballes, 543 U.S. at 413 (Souter, J. dissenting); Lewis R. Katz & Aaron P. Golembiewski,

Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735,

737-38 (2007).

2

For now, that non-“search” rule suffices to reject Fellmy’s contentions. If it turns out that open-air dog

sniffs are sometimes “searches,” their unique characteristics might factor into the reasonableness analysis—either as

a per se matter or in the mine run of cases. See Thapar Concurrence 3 n.2. Or perhaps such sniffs are more like

encounters under Terry v. Ohio, 392 U.S. 1 (1968), and thus require only reasonable suspicion of drug activity rather

than probable cause. Whether those alternative pathways might sustain the Fourth Amendment validity of open-air

dog sniffs could be worth exploring if the Supreme Court revisits its non-“search” rule.

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II

Fellmy counters that United States v. Jones, 565 U.S. 400 (2012), and Florida v.

Jardines, 569 U.S. 1 (2013), have altered the going framework. They do so, he claims, by

mandating a trespass-focused approach that would render any open-air dog sniff a “search”

whenever a canine commits a technical trespass to chattels—no matter how minor or

incidental—under state common law. Though some courts have agreed,3 I see good reasons to

demur.

For starters, neither Jones nor Jardines confronted the legality of open-air dog sniffs in

the chattels or traffic-stop context. So neither gave the Supreme Court any occasion to revisit its

settled holding that such sniffs are not Fourth Amendment “searches.”

Nor does the reasoning of Jones or Jardines call into question every dog sniff in which a

dog contacts a vehicle. Jones dealt with “the Government’s installation of a GPS device on a

target’s vehicle, and its use of that device to monitor the vehicle’s movements.” 565 U.S. at 404

(footnote omitted). The device’s sustained physical occupation, and the attendant surveillance

enabled by “attaching the device,” was thus the crux of the dispute. Id. at 410; see also id. at

413-14 (Sotomayor, J., concurring) (“The Government usurped Jones’ property for the purpose

of conducting surveillance on him.”). Neither factor is present here, suggesting that a canine’s

fleeting contact during a sniff does “not involve an extended physical occupation or physical

intrusion akin to that in Jones.” State v. Bauler, 8 N.W.3d 892, 900 (Iowa 2024).

Jardines, for its part, applied property-law concepts in determining that a dog sniff on a

home’s curtilage is a search. 569 U.S. at 6-9. But Jardines’s analysis is ill fitted for the trafficstop context. Jardines begins with the “the right of a man to retreat into his own home”—which

carries with it the ability to exclude unwanted visitors from property. Id. at 6 (quoting Silverman

v. United States, 365 U.S. 505, 511 (1961)). That doesn’t translate to traffic stops. All agree that

officers may lawfully separate owners from their vehicles by issuing an “order to get out of the

car,” Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)—dispossession that would otherwise

3

See, e.g., State v. Dorff, 526 P.3d 988, 991 (Idaho 2022); State v. Organ, --- S.W.3d ----, 2025 WL

3029069, at *1 (Tex. Crim. App. 2025). But see State v. Bauler, 8 N.W.3d 892, 894-95 (Iowa 2024).

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constitute a trespass to chattels at common law, see Restatement (Second) of Torts §§ 218, 221

(1965). Continuing with its home-centric framing, Jardines next rejects that “introducing a

trained police dog to explore the area around the home” falls within the scope of visitors’ implied

license to approach a home’s front door. 569 U.S. at 9. As discussed, however, the Supreme

Court’s caselaw grants officers express permission to perform that same kind of investigatory

dog sniff of lawfully stopped vehicles. See Caballes, 543 U.S. at 409.

It is true that, post Jones and Jardines, the Supreme Court has not expressly addressed

the trespass-to-chattels issue in the context of dog sniffs. And it may be that certain dog

intrusions—say, fully jumping into vehicles to search compartments not accessible via an

external sniff—stray too far into “search” territory. Nor can courts ignore other limits, like those

on suspicionless stops or unreasonably long seizures, that continue to implicate and regulate the

use of detection dogs. See Edmond, 531 U.S. at 40-42; Rodriguez v. United States, 575 U.S. 348,

350 (2015).

But as the Jones Court acknowledged, it broke no new ground by using general principles

of property to inform the Fourth Amendment’s protections. See 565 U.S. at 405-07; see also

Orin S. Kerr, The Two Tests of Search Law: What is the Jones Test, and What Does That Say

About Katz, 103 Wash U. L. Rev. 309, 314-33 (2025) (detailing role of physical-intrusion-based

theories). Nor are trespass-based challenges to dog sniffs themselves novel. United States v.

Bronstein, 521 F.2d 459, 461-62 (2d Cir. 1975) (reasoning that, though detection dog’s “nipping

and biting at the bags . . . may well have constituted a technical trespass, it cannot sensibly be

characterized as a search or seizure”) (internal citation omitted). After all, it is often the case that

dogs briefly contact or breach the window threshold of effects and vehicles during an external

sniff—whether incidentally or by instinct,4 to enable an effective sniff,5 or as a “classic” means

to signal a positive alert. United States v. Williams, 726 F.2d 661, 664 (10th Cir. 1984).6

4

See, e.g., United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007); United States v. Stone, 866

F.2d 359, 364 (10th Cir. 1989).

5

See, e.g., United States v. Keller, 123 F.4th 264, 266 (5th Cir. 2024) (canine “placed his paws on the rear

bumper of the vehicle and sniffed near the back hatch”).

6

See also, e.g., United States v. $639,558, 955 F.2d 712, 713 (D.C. Cir. 1992) (canine was “trained to

signal the presence of drugs” by “scratching at a door with his paws”).

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Yet until recently, courts have overwhelmingly disagreed that such canine contact triggers

Fourth Amendment coverage.7 That decades’ long judicial consensus provides another reason to

pause before reading the Supreme Court to have tacitly overhauled its Fourth Amendment dogsniff framework. Cf. Torres v. Lynch, 578 U.S. 452, 467-70 (2016).

III

Of course, if a particular investigatory method violates the Fourth Amendment, the

“antiquity” of the tools used is no defense. Jardines, 569 U.S. at 11. So too, if Jones’s propertycentric approach tees up “difficult questions” for future cases, Thapar Concurrence 2 n.1, lower

courts must resolve them. But when assessing whether Jones mandates Fellmy’s technicaltrespass approach, it seems worth considering the doctrinal and practical problems Fellmy’s

position would produce. And as I see it, the doctrinal and practical “fallout” from Fellmy’s

“interpretation” further “underscores the implausibility” of that reading. Van Buren v. United

States, 593 U.S. 374, 394 (2021).

Applying a technical-trespass rule to open-air dog sniffs not only creates tension with the

Supreme Court’s prior endorsement of that investigatory technique. It also runs counter to more

general Fourth Amendment principles. Limits on police should, when possible, be “readily

administrable.”

Atwater, 532 U.S. at 347.

But Fellmy’s position would have the Fourth

Amendment analysis rest on arcane property rules that are both difficult to parse ex ante (e.g., Is

damage to, as opposed to mere contact with, chattels necessary for trespass to lie?8 Does

trespass on the close apply to chattels?9) and difficult to translate to the policing context (e.g.,

Does intermeddling with a chattel confer a right to sue, or a right to defend property with force?

See Thapar Concurrence 9-10). Fellmy’s approach also runs into the Court’s refusal to hinge the

7

See, e.g., Olivera-Mendez, 484 F.3d at 511-12; Stone, 866 F.2d at 364; United States v. Goldstein, 635

F.2d 356, 359, 360-61 (5th Cir. 1981); United States v. Venema, 563 F.2d 1003, 1006 (10th Cir. 1977); Bronstein,

521 F.2d at 461-62; United States v. Fulero, 498 F.2d 748, 749 (D.C. Cir. 1974).

8

Compare Weatherly v. Hospice of Lake Cumberland, Inc., 2019 WL 1422848, at *2 (Ky. Ct. App. Mar.

29, 2019) (“Trespass to chattels involves relatively minor damages or deprivation.”) (citation omitted), with Stanley

v. Knuckles, 2017 WL 6398296, at *4 (Ky. Ct. App. Dec. 15, 2017) (“[O]ne need not intentionally damage the

property to commit the tort” of trespass to chattels.).

9

Compare Organ, 2025 WL 3029069, at *9 (no), with Dorff, 526 P.3d at 997 (yes).

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“search” inquiry on the existence of “a technical trespass” under local law. Silverman, 365 U.S.

at 511.

Doctrinal trouble would only multiply if our focus is to be on each State’s modern-day

trespass law—an interpretation Fellmy at points suggests and Judge Thapar’s concurrence

entertains. Such an evolving-trespass approach would mean the “protections of the Fourth

Amendment” “vary from place and from time to time”—variability the Supreme Court has

previously said it “cannot accept.” Whren v. United States, 517 U.S. 806, 815 (1996). It also

would cause the Constitution’s meaning to expand and contract as States modify trespass rules to

stack the deck for or against police. But cf. Virginia v. Moore, 553 U.S. 164, 176 (2008) (“state

restrictions” on law-enforcement practices “do not alter the Fourth Amendment’s protections.”).

I hesitate to conclude that States could effectively abrogate Place, Edmond, and Caballes’s

federal constitutional-law holdings by defining open-air canine sniffs as trespasses under state

law.

The head-scratching practical consequences of Fellmy’s position raise further red flags.

The per curiam opinion and Judge Thapar detail the oddities well. To sum up, Fellmy’s view

would often rest the “search” inquiry on facts outside of officers’ control (e.g., Did a car’s

positioning or size necessitate K-9 contact? Were the windows left open?). The “characteristics

of the individual officer”—or canine—“conducting” the investigation could likewise dictate

different Fourth Amendment treatment in the same investigatory circumstances. Rodriguez, 575

U.S. at 362 (Thomas, J., dissenting). “[S]uch trivialities,” however, should not drive the “search

and seizure protections of the Fourth Amendment.” Whren, 517 U.S. at 815. Here as elsewhere,

Fellmy identifies no good “reason to ascribe to the Fourth Amendment such arbitrarily variable

protection.” Devenpeck v. Alford, 543 U.S. 146, 154 (2004).

Consider also the bizarre multi-track regime Fellmy’s technical-trespass rule would

create. Under it, officers would need at most reasonable suspicion to initially perform an openair sniff during a traffic stop. See, e.g., United States v. Jordan, 100 F.4th 714, 718 (6th Cir.

2024) (“To prolong a traffic stop” to “perform a drug-dog sniff,” officers “must have reasonable

suspicion of additional wrongdoing.”). That showing would suffice, moreover, so long as the

canine managed to avoid any incidental contact with a vehicle. Caballes, 543 U.S. at 407-09.

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But officers would suddenly need probable cause to continue or justify the sniff as soon as a dog

propped itself up against the car or broke the plane of the window. See, e.g., State v. Organ, --S.W.3d ----, 2025 WL 3029069, at *1 (Tex. Crim. App. 2025). Yet if officers had probable

cause to believe drugs were present, they could have simply searched the vehicle’s interior from

the start—no canine needed. Collins v. Virginia, 584 U.S. 586, 592 (2018). And if officers pull

or lead a dog away from a vehicle to avoid contact? They risk accusations of having “cued” the

dog in a way that “undermine[s]” the reliability of any positive alert. Florida v. Harris, 568 U.S.

237, 247 (2013).10 How officers should navigate those hoops, particularly given the “danger”

inherent in traffic stops, is anyone’s guess. Arizona v. Johnson, 555 U.S. 323, 330 (2009) (citing

Michigan v. Long, 463 U.S. 1032, 1047 (1983)). So is the amount of new litigation—over

whether canine contact occurred, caused damage, was necessary to facilitate a positive sniff, or

came before or after an alert—Fellmy’s rule would necessitate.

Nor are these complications any small matter. Given their longstanding legality, open-air

sniffs by detection dogs now play a critical role in law-enforcement efforts nationwide. See

Brief of Nat’l Police Canine Ass’n, at 1, Florida v. Harris, 568 U.S. 237 (2013) (No. 11-817).

Their use spans from interdicting explosives at the border, to stopping the flow of dangerous

drugs into communities, to securing the safety of public officials, transit stations, and stadiums.

Dogs of DHS: How Canine Programs Contribute to Homeland Security, Hearing Before S.

Comm. on Homeland Sec. & Govt. Affairs, 114th Cong. (2016) (testimony of Kimberly

Hutchinson and Damian Montes). Here, canine Tyra helped a small police department recover

around 180 grams of pure methamphetamine. That is more than three times the quantity needed

to trigger the mandatory federal maximum sentence and equates to over a thousand individual

doses. See 21 U.S.C. § 841(b)(1)(A)(viii).

Fellmy’s technical-trespass position would thus inject unpredictability and confusion into

innumerable law-enforcement interactions. And when combined with the exclusionary rule, it

also risks suppression of essential drug evidence in scores of cases. I agree with today’s

10

See, e.g., United States v. Smith, 355 F. Supp. 3d 544, 552-53 (N.D. Miss. 2018); United States v. Heir,

107 F. Supp. 2d 1088, 1091 (D. Neb. 2000); cf. United States v. Metts, 2022 WL 1421370, at *10 (N.D. Ind. May 4,

2022) (“releas[ing] the leash before” the alert “eliminat[es] any forceful argument that the canine had been

improperly ‘cued’”).

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rejection of a Fourth Amendment rule that would hamstring longstanding law-enforcement

practices based on happenstance facts bearing little on interference with property rights.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 25-5381

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FILED

Jan 23, 2026

v.

KELLY L. STEPHENS, Clerk

STEVEN TILDEN FELLMY,

Defendant - Appellant.

Before: GRIFFIN, THAPAR, and HERMANDORFER, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

THIS CAUSE was heard on the record from the district court and was submitted on the briefs

without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

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