DeBoer, J.
After being charged with several drug offenses, Juan Ocampo filed a motion to suppress evidence obtained during a search of his vehicle conducted by officers after a K9 entered the open passenger’s door, sniffed throughout the vehicle’s interior, and eventually alerted to the presence of drugs inside.
In this interlocutory appeal, Ocampo challenges the trial court’s denial of his motion to suppress, arguing (1) the K9’s entry into his vehicle was an unlawful search in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution and (2) that even if officers had probable cause to conduct an otherwise lawful search, they nonetheless exceeded the scope of a constitutionally permissible search by dismantling components of the vehicle.
This appeal presents a matter of first impression in Indiana: the legality of a K9’s interior sniff of a vehicle before probable cause has been established to conduct a search. Joining the federal circuit courts that have addressed the issue, we adopt the “instinctive entry rule,” under which a K9’s instinctive entry into a vehicle does not implicate the Fourth Amendment so long as it is not directed, encouraged, or facilitated by officers.
Applying this rule to the circumstances of this case, we find that the officers facilitated the K9’s entry into Ocampo’s vehicle and, consequently, searched the vehicle without probable cause in violation of the Fourth Amendment. Accordingly, we reverse and remand.
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But here, unlike Harbaugh, there is no evidence that Swag alerted outside Ocampo’s vehicle. On the contrary, Officer Powell testified that Swag alerted for the first time inside the vehicle. Thus, the resolution of this appeal requires us to examine the legality of Swag’s interior sniff.
Though an Indiana appellate court has yet to address this issue, we observe that the federal circuit courts have consistently adopted the instinctive entry rule, under which a K9’s entry into a vehicle is not a Fourth Amendment search where there “is no indication that the officers intended to facilitate the dog’s entry into the car.” United States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016), cert. denied; see also United States v. Pierce, 622 F.3d 209, 214-15 (3d Cir. 2010) (finding no Fourth Amendment violation where a K9 jumped through an open car door “without facilitation by [its] handler”); United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012) (finding no Fourth Amendment violation where K9 jumped through car window but “officers did not encourage or facilitate the dog’s jump”), cert. denied; United States v. Lyons, 486 F.3d 367, 373-74 (8th Cir. 2007) (finding no Fourth Amendment violation where K9 stuck its head through a van’s open window without being directed to do so by officers); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (finding no Fourth Amendment violation where K9 instinctively jumped into open hatchback); and United States v. Mostowicz, 471 F. App’x 887, 891 (11th Cir. 2012) (finding no Fourth Amendment violation where K9 entered through door left open by defendant and the officers did not encourage the jump).
The Seventh Circuit rejected Guidry’s argument that the K9’s entry into the car violated the Fourth Amendment, reasoning that
[the officer] kept [the dog] on his leash and did not allow him to jump into the car. Moreover, the officers did not open the door— it was Guidry who left it open. Immediately after Guidry exited, [the officer] led [the dog] through her usual circuit, and despite her efforts to keep [the dog] outside of the car, his head allegedly entered it. In sum, the facts of this case are very different from those in [United States v.] Winningham[, 140 F.3d 1328 (10th Cir. 1998) (concluding that officers facilitated a dog’s entry into a vehicle)] and more closely resemble cases where no Fourth Amendment violation was found.
Id. at 1006 (citing Pierce, 622 F.3d at 214-15; Lyons, 486 F.3d at 373-74; and Stone, 866 F.2d at 363-64).
Ocampo’s case is distinguishable from Guidry. We acknowledge that as in Guidry, De La Torre, not Officer Powell, initially opened the passenger door and left the door open after stepping out of the vehicle. But that is where the factual similarities end. Unlike Guidry—where the officer kept the dog on a leash and tried to stop her from entering the car—Officer Powell removed Swag’s lead and made no effort to stop him from jumping inside. And while the dog in Guidry first alerted while outside the car, Swag did not alert until after jumping inside, and even then, only after conducting an extensive interior sniff throughout the vehicle.
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In denying the motion to suppress, the trial court reasoned that it had found “no caselaw that expressly states removing the leash is ‘facilitating’” and “decline[d] to create such a rule now.” Appellant’s App. Vol. 2 at 27. But Guidry and Winningham are explicit that whether an officer removed the K9’s lead is relevant to determining whether the officer indicated a desire to facilitate the dog’s entry into a vehicle. Moreover, we agree with the Third Circuit’s observation that an instinctive jump “implies the dog enters the car without assistance, facilitation, or other intentional action by its handler.” Pierce, 622 F.3d at 214 (emphasis added).
Swag did not enter Ocampo’s vehicle without Officer Powell’s involvement. Officer Powell testified that he knew that Swag was about to jump into the vehicle and removed Swag’s lead for the express purpose of allowing him to search inside. Officer Powell further explained that had Swag’s lead not been removed, he would have gotten “hung up around armrests or the seats or stuff like that” and would not have been able to freely move around the vehicle. Tr. at 8. Thus, the act of removing Swag’s lead necessarily facilitated the interior vehicle sniff and the trial court erred in reaching the opposite conclusion.
We further note that after Swag entered the vehicle, but before he alerted to the presence of narcotics, Officer Powell leaned into the vehicle several times to observe Swag’s search. These facts implicate two landmark federal Supreme Court opinions applying the traditional Fourth Amendment trespass analysis. See United States v. Jones, 565 U.S. 400, 405 (2012) (“[O]ur Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.”); see also Florida v. Jardines, 569 U.S. 1, 11 (2013) (explaining that “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.”).
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Ocampo contends that Jones and Jardines implicitly overturned the instinctive entry rule and calls Stone and Sharp “outdated under more recent U.S. Supreme Court case law[.]” Appellant’s Br. at 15. We do not agree. Had Swag entered the vehicle on instinct, i.e., without interference from Officer Powell, federal circuit court cases post-dating Jones and Jardines consistently hold that the instinctive entry rule would apply. See, e.g., United States v. Keller, 123 F.4th 264, 268 (5th Cir. 2024) (noting that even after Jones, “[n]umerous circuits agree that, absent police misconduct, the instinctive actions of a trained canine … constitute incidental contact, not an unconstitutional Fourth Amendment search.”). We agree with the State that Jones and Jardines “have not altered the validity of this long-standing rule.” Appellee’s Br. at 14.
But because Officer Powell facilitated Swag’s entry into the vehicle by removing his lead, Swag was not acting on pure instinct and so Jones and Jardines are relevant to our analysis. See United States v. Pulido-Ayala, 892 F.3d 315, 318 (8th Cir. 2018) (quoting Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989)) (“A drug dog is an instrumentality of the police, and the actions of ‘an instrument or agent’ of the government are normally governed by the Fourth Amendment.”), reh’g denied. This is especially so given the fact that Officer Powell himself leaned, reached, and peered into the vehicle before Swag alerted and consequently before there could have been probable cause to search the vehicle’s interior. See Stone, 866 F.2d at 364 (explaining that “[o]nly after the dog was in the [vehicle], where it ‘keyed’ on the [drugs], did the police have probable cause to search the car.”) (emphasis added).
Thus, because Swag’s entry was not instinctive, Swag and Officer Powell’s physical intrusions into the vehicle without probable cause violated the Fourth Amendment. See Jardines, 569 U.S. at 11 (“That the officers learned what they learned only by physically intruding on [defendant’s] property to gather evidence is enough to establish that a search occurred.”).
Because the officers searched Ocampo’s vehicle without probable cause, we must determine whether to apply the exclusionary rule.
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Moreover, the State concedes that “[e]xclusion is most appropriate where there is flagrant misconduct by police officers who knew, or should have known, that their conduct was unconstitutional.” Appellee’s Br. at 23. Given the weight of Indiana and federal authority addressing K9 sniffs, Officer Powell can “‘be charged with knowledge’” that the physical intrusion into Ocampo’s vehicle to conduct an interior sniff violated the Fourth Amendment. Shotts v. State, 925 N.E.2d 719, 724 (Ind. 2010) (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987)).
For these reasons, the State has failed to meet its burden to prove that the good faith exception to the exclusionary rule should be applied in this case. In light of the State’s failure, evidence of the narcotics discovered in Ocampo’s vehicle during Officer Powell and James’s unlawful search “must be suppressed.” Heuring, 140 N.E.3d at 273.
We join the federal circuit courts that have held that a trained K9’s instinctive entry into a vehicle is generally not a Fourth Amendment search. But it is axiomatic that for a K9’s entry to be instinctive, it cannot result from an officer’s direction, assistance, facilitation, or other intentional action.
Finding undisputed evidence that Officer Powell intentionally removed Swag’s lead to “allow him to search without anything holding him back,” we conclude that Swag’s entry into Ocampo’s vehicle was not instinctive. Tr. at 32. Consequently, the resulting interior dog sniff was a Fourth Amendment search lacking probable cause. And because we find that the State has failed to prove that an exception to the exclusionary rule applies to these circumstances, the trial court erred in denying Ocampo’s motion to suppress.
Accordingly, we reverse and remand with instructions for the trial court to grant Ocampo’s motion to suppress.
Reversed and remanded.
Altice, C.J., and Pyle, J., concur.