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

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0841-24

STATE OF TEXAS

v.

COURTNEY JAMES-VARNELL ORGAN, Appellee

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

SCHENCK, P.J. filed a dissenting opinion.

Today’s majority finds a Fourth Amendment violation of a dog’s nose through

the open window of a vehicle premised on a theory of common-law trespass and

largely without regard to whether the action interfered with Appellee’s reasonable

expectation of privacy. This holding is premised on a reading of two Supreme Court

decisions and pretermits further inquiry into the question of whether the “search”
ORGAN DISSENT—2

was reasonable and our understanding of common-law trespass. Because I disagree

with the majority’s treatment of both, I dissent.

DISCUSSION

The majority’s opinion comprehensively and fairly details the operative facts.

Organ’s vehicle was lawfully stopped for speeding. Trooper Cornell believed Organ

was nervous and evasive and called for Deputy Kern and his drug-detection dog,

Jaks. To this point, we appear to agree that, despite the “seizure” and the obvious

interference with the common-law property right to use of the vehicle as an “effect,”

the interference with the people and the vehicle, including the air within it, is subject

to a rule of reason governing the stop and its duration. E.g., State v. Pettit, 713

S.W.3d 834, 841 (Tex. Crim. App. 2025) (recognizing the stop as seizure). We also

appear to agree that a drug-detection dog’s “open air sniff” around the exterior of a

vehicle during a lawful traffic stop is not a Fourth Amendment search. See Illinois

v. Caballes, 543 U.S. 405, 409 (2005). Where we appear to differ is with the actions

of the dog relative to the interference with the vehicle. Specifically, whether the

action of a dog in placing its snout in the air over and beyond the imaginary plane of

the vehicle’s open window frame automatically violates the Fourth Amendment on

common-law trespass grounds—alone or augmented by a car’s status as an

“effect”—without regard to any consideration of the interference with a reasonable

expectation of privacy.
ORGAN DISSENT—3

I believe the Fourth Amendment’s text answers the question by directing itself

to a rule of “reason” and concomitant human agency. This would be true regardless

of whether we read the Fourth Amendment to be trigged solely by a theory of

common-law trespass or, perhaps, its penumbral shadow said to consist of any

airspace within an already properly stopped motor vehicle as an “effect” such that

the interference, though not “actionable” as a trespass or violative of any expectation

of privacy, would nevertheless violate that amendment. Absent some action or

decision attributable to a law enforcement officer, as found by the trial court, there

is nothing to consider in my view. This, to my knowledge, has been the consistent

holding of every federal circuit decision to address the issue.

According to the federal circuit courts, a dog’s instinctive actions do not

amount to a Fourth Amendment violation. See, e.g., United States v. Keller, 123

F.4th 264, 268–69 (5th Cir. 2024); 1United States v. Shen, 749 Fed. Appx. 256, 263

(5th Cir. 2018); United States v. Iverson, 897 F.3d 450, 461 (2d Cir. 2018); United

States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016); United States v. Sharp, 689

F.3d 616, 619–20 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209, 213–15 (3d

Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States

1
The majority dismisses Keller despite its post-dating Jones because the dog’s nose did
not physically enter the car’s interior airspace. Nothing suggests its rationale would be so limited.
Rather, Keller cites to and relies upon multiple earlier decisions involving the dog’s entire body
entering the vehicle as illustrative of the controlling point. See Keller, 123 F.4th at 269.
ORGAN DISSENT—4

v. Olivera-Mendez, 484 F.3d 505, 511–12 (8th Cir. 2007); United States v. Stone,

866 F.2d 359, 364 (10th Cir. 1989).

The Iowa Supreme Court recently arrived at the same result in a similar case

involving the intrusion of the dog’s nose beyond the plane of the vehicle’s open

window. State v. Mumford, 14 N.W.3d 346, 354 (Iowa 2024), cert. denied, 2025

WL 2823719 (U.S. Oct. 6, 2025) (No. 24-1093). It would make no difference if the

dog had jumped into and temporarily occupied a portion of the vehicle, so long as

the action is not attributable to prompting or direction by the law enforcement

officer. See Stone, 866 F.3d at 364; Pierce, 622 F.3d at 213–15.

There is no evidence here—and certainly no finding below—that Jaks was

trained to sample the air above the open window or that the deputies directed him to

do so. That should resolve the issue under the settled caselaw. Our decision to the

contrary here cannot be squared with any of these holdings and does not rest well

with the Supreme Court’s treatment of the common law as a component of the Fourth

Amendment.

I. THE FOURTH AMENDMENT’S INCORPORATION AND
PRESERVATION OF COMMON-LAW PROPERTY NORMS
INFORMS BUT DOES NOT SUPPLANT THE RULE OF REASON

In support of its new rule, the majority takes us through the progression of the

Supreme Court’s jurisprudence relative to the relation of “property v. privacy,”

noting the evolution, culminating in Katz v. United States, 389 U.S. 347 (1967),
ORGAN DISSENT—5

toward an analysis focusing on the latter. I do not see the distinction as exclusive,

much less controlling here. Generally, common-law property interests will support

an expectation of privacy, but the presence or absence of either simply informs the

ultimate question posed by the Fourth Amendment—whether the official

interference is “reasonable.” I do not question whether Katz left the common-law in

play, only whether it treated it as a wholly separate inquiry by which no further

inquiry would be needed. Cf. United States v. Jacobsen, 466 U.S. 109, 125 (1984)

(destructive testing of “white powder” interferes with the owner’s personal property

interests, but do so to a de minimis and, hence, “reasonable” extent).

The majority’s treatment of the dog’s “trespass” as dispositive of the Fourth

Amendment issue in view of what it sees as the common-law trespass stems from its

reading of United States v. Jones, 565 U.S. 400 (2012), and Florida v. Jardines, 569

U.S. 1 (2013). Jones involved law enforcement officers—without the owners’

consent or knowledge—physically attaching an electronic tracking device to an

automobile constantly reporting on its movement. Jardines involved a law

enforcement officer taking a dog onto real property for purposes of detecting illegal

drugs within the bounds of the premises.

The majority borrows the dog from Jardines—ignoring its placement by its

human handler in the home setting which the Supreme Court treats as the “very

core” of the Fourth Amendment—and appends it to the car involved in Jones—
ORGAN DISSENT—6

ignoring the extent of the intrusion involved there—and thus discerns a bright-line

test for automobiles approximating the ancient common-law ad coelum protection

of the air space to heaven above. I see several problems with this.

First, the majority divines a rule in Jones that renders common-law trespass

(“actionable” or not) as automatically violative of the Fourth Amendment. Putting

aside for the moment whether a dog, acting on its own, can trespass at common law

or whether the presence of its snout in the air space above the plane of the open

window is so protected at common law, I do not agree that Justice Scalia’s majority

opinion in Jones divorced the common-law analysis from the basic Fourth

Amendment question of whether the interference is “reasonable.” To be sure, the

Court rejected the idea that its transition in Katz to a focus on reasonable

expectations of privacy added to, not substituted for, the common-law trespassory

test. Jones, 565 U.S. at 409. But this is neither surprising nor controlling of the

question of whether such a trespass exists in the first place or would invariably

violate the Fourth Amendment regardless of whether it was reasonable. The Jones

decision did not even address that latter, controlling Fourth Amendment question,

because it had been waived below. Id. at 413.

Second, the majority suggests its opinion is not anchored exclusively in

notions of common-law trespass. The analysis behind that observation declares the

car an “effect,” which no one would doubt, and yet stops short of reconciling the
ORGAN DISSENT—7

difference between privacy interests in an “effect” on wheels capable of movement

and subject to essentially plenary regulation as a condition of its presence on public

roads,2 and a privacy interest in real property and one’s immovable residence. The

majority then unmoors the common-law property question from the idea that the

interference would be “actionable”—that is to say cognizable in any way. Instead,

it declares the car (or at least the air within it) to be a “constitutionally protected

space.”

But, if the Fourth Amendment violation arises without regard to whether any

common-law trespass occurred and without any violation of a reasonable

expectation of privacy, the majority is creating, to my mind, a new and undefined

constitutionally protected space at odds with Katz’s own rejection of that notion.

389 U.S. at 351. As I understand a “constitutionally protected” place, it would

consist of a place in which a person has either has a reasonable expectation of

privacy, see id. at 360 (Harlan, J., concurring), or a recognized property right. If

there is no reasonable expectation of privacy and even the common law would reject

the claimed interference, 3 what provision of the Constitution supports the argument?

2
A car is subject to multiple regulatory mandates conditioning its use on the roads. Failure
to comply with them may render the vehicle—and the air within it—subject to immediate seizure.
See Tex. Att’y Gen. Op. No. KP-0034 (2015).
3
It would. RESTATEMENT (SECOND) OF TORTS § 218, cmt. (e) (rejecting claim for non-
material interference with chattel, including claim for nominal damages).
ORGAN DISSENT—8

The results in Jones and Jardines are better understood as a product of the

nature and degree of interference with the property rights involved. Cars are not

homes.4 The common law protection to real property is comprehensive. Trespass

to land at common law is compensable without proof of damage and without proof

of intent. W. Page Keeton, PROSSER AND KEETON ON TORTS § 13, at 67, 70 (5th ed.

1984). Trespass to chattels arises from “intentionally dispossessing another of the

chattel or using or intermeddling with a chattel in the possession of another.” THE

RESTATEMENT (SECOND) OF TORTS § 217 (A.L.I. 1965). Additionally, the common-

law claim of trespass to chattels requires meaningful physical contact, not a violation

of airspace.5 Jones, unlike this case, involved all of these things and an unreasonable

interference with that interest. Jardines, meanwhile, involved the officer’s physical

trespass on the land with the dog for the purpose of detecting drugs. The dog did not

embark on the “trespass” on its own, as in this case.

This case involves a snout over an open window. To fit it within Jones’s

holding, we would need Deputy Kern to have surreptitiously placed Jaks into

Organ’s trunk, equipped Jaks with an electronic communication device, and had him

secretly and perpetually reporting back on any illicit odors from within the passenger

4
“[W]hen it comes to the Fourth Amendment, the home is first among equals.” Jardines,
569 U.S. at 6.
5
According to the Restatement, there must be “[p]hysical contact with chattel.
‘Intermeddling’ means intentionally bringing about a physical contact with the chattel.” THE
RESTATEMENT (SECOND) OF TORTS § 217 (A.L.I. 1965).
ORGAN DISSENT—9

compartment. On this notion, I would agree more with Judge Parker’s concurrence

than the majority opinion by at least noting that need for human decision-making to

lead to conclusion of “trespass” or intrusion into space without trespass or

expectation of privacy. I note that the trial court’s findings of fact do not embrace

the theory she now advances: namely, that the dog’s having made multiple

approaches to the open window infers a conscious human directive. But regardless,

unlike Judge Parker, I do not find any “magic number” upon which a dog’s behavior

becomes attributable to the handler by automatic implication. At best, that new

factfinding would support a conclusion of negligence on the part of the handler that

would still have resulted in an intrusion without either trespass or violation of a

reasonable expectation of privacy under the majority’s reasoning. Thus, whether it

was one or a hundred sniffs above the line of the window, the result would be the

same.

Meanwhile, we accept as permissible and without doubt the much more

intrusive interference with Organ’s chattel rights existing in the stopping and

complete, even if temporary, interference with the intended use of the vehicle’s

mobility—despite the trespass to that common-law chattel use interest—precisely

because it is reasonable (and thus constitutional) under the Fourth Amendment. We

would also be required to accept that visual observation of the drugs within the car

after the stop would also be permissible despite the car’s interior amounting to
ORGAN DISSENT—10

“constitutionally protected space.” The same would be true if an officer (or a dog)

detected a smell indicative of contraband emanating from the interior if not by means

of a snout (or nose) above the window frame. United States v. Pierre, 958 F.2d

1304, 1310 (5th Cir.), cert. denied, 506 U.S. 898 (1992) (plain smell). It would seem

that a person wishing to conceal illicit drugs could hardly find a less “constitutionally

protected” space than a car travelling on a public road while violating traffic laws.

Conversely, were we to transport the common-law property interference

involved in this case to the real property interests involved in Jardines, what result

would obtain? We don’t have to guess. Despite the heightened common-law rights

in land and the right of use to the air above it,6 those interests do not translate to a

Fourth Amendment violation even where the government “trespasses” within that

space. See Florida v. Riley, 488 U.S. 445, 451–52 (1989) (helicopter at 400 feet);

Ciraolo v. California, 476 U.S. 207, 214–15 (1986); Dow Chem. Co. v. United

States, 476 U.S. 227, 229 (1986). If the air above a home is not “constitutionally

protected space,” the interest in the air within and above a car seems far less worthy

of that free-standing treatment. To my mind, that leaves only the prospect that the

6
I say this not to predict how the Supreme Court or this Court might treat such an
interference in the future, but to stress that at least as of the release of Jones, the argument advanced
here would have failed even as to land interests.
ORGAN DISSENT—11

contact with the vehicle itself triggers a trespass and concomitant Fourth

Amendment violation.

II. THERE IS NO COMMON-LAW TRESPASS BY THE DOG

If we accept that the car can be stopped, that the dog can sniff its exterior, and

that the dog can put its paws on the car—as the majority does to reconcile it to one

(Keller) of the many federal circuit decisions it rejects—where do we derive the rule

from Jones that would make the air space beyond the plane created by the open

window as a common-law interference that would operate free of the rest of the

Fourth Amendment’s inquiry? The majority, as noted, finds that rule at the common

law. It cites no authority for that proposition, however.

As noted above, I do not understand a common-law claim of trespass to

chattels—unique and apart from the seizing of the vehicle and the resulting exterior

sniff of it or touching of the door by paws—to exist on account of a snout passing

over the space created at the open window and taking a sniff of the air. 7 In fact, no

such claim of trespass via open-air sniff exists at common law with respect to

chattels or land.

At common law, owing to “(1) the fact that [a] dog is generally well disposed

toward man;” and “(2) the unlikelihood of a dog causing serious damage to another’s

7
As should be obvious, I believe we might have a different question if the officer did
likewise or directed the dog to do so.
ORGAN DISSENT—12

property as would, for example, cows or sheep;” as well as “(3) the status of the dog

at common law as a base animal in which the owner had only a qualified [ownership

right],” there is no claim of trespass by a dog. Hamilton C. Horton, Jr., Torts—

Animals—Liability of Owner for Trespass of Dogs by Hunting, 33 N.C.L. REV. 134,

135 (1954). The only exception, predictably enough, would be where the dog has a

propensity for trespass and the owner is shown to have been aware of it. This rule

has long been recognized and followed in this state as well. E.g., Hill v. Palms, 237

S.W.2d 455, 457 (Tex. Civ. App.—Amarillo 1950, no writ) (“[T]he courts of this

state have adhered strictly to the rule from the early days of the history of our

jurisprudence until the present and we have no alternative but to hold in accordance

with them.”).

The majority’s decision to create a free-standing common-law, trespass-based

Fourth Amendment claim is not only in conflict with multiple federal circuit

decisions construing and applying that amendment, but is also ungrounded in the

common law it applies.

III. EXCLUSION WOULD BE IMPROPER IN ANY EVENT

Finally, the lack of any unreasonable action by the officers (as opposed to

Jaks) is not only fatal to the Fourth Amendment inquiry and any related claim of

common-law trespass; it also forecloses application of the exclusionary rule under

Mapp v. Ohio, 367 U.S. 643 (1961).
ORGAN DISSENT—13

“To trigger the exclusionary rule, police conduct must be . . . sufficiently

culpable that such deterrence is worth the price paid by the justice system.” Herring

v. United States, 555 U.S. 135, 144 (2009). The exclusionary rule was intended to

deter “deliberate, reckless, or grossly negligent conduct.” Id. I agree with the Iowa

Supreme Court’s conclusion under identical facts in Mumford. This case does not

involve deliberate, reckless, or grossly negligent conduct. The majority concedes

that the officers acted properly in restraining the passengers, summoning the dog,

and permitting it to examine the exterior of the vehicle. The action of the dog in

inserting its nose beyond the threshold of the open window, even if it amounted to a

common-law trespass or otherwise infringed on the Fourth Amendment (and it does

not), would not support exclusion. See, e.g., Lyons, 486 F.3d at 373–74 (affirming

denial of motion to suppress where K-9 unit breached cabin of vehicle through open

window and there was no evidence that peace officers opened the window or directed

the window to be opened); United States v. Handley, No. 23-CR-57-CJW-MAR,

2024 WL 1536750, at *9 (N.D. Iowa Apr. 9, 2024) (denying motion to suppress

where K-9’s head entered window and concluding that suppression was not required

because “this conduct is not culpable enough to trigger the harsh sanction of

exclusion”).
ORGAN DISSENT—14

CONCLUSION

Because Jaks was not commanded, cued, or otherwise prompted by his

handler to cross the threshold of the open window, because there was otherwise no

action by the officer to invade the space into which the dog’s nose projected, and

because there is no need to enlist an imaginary property-rights boundary into our

concepts of Fourth Amendment law, I would find no violation of the Fourth

Amendment in the case at hand.

Therefore, I dissent.

Filed: October 30, 2025

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