K9 Search & Seizure

Canine Search and Seizure

Reprinted from Criminal Procedure: The Street Cop’s Guide

"A rose by any other name would smell as sweet," according to Shakespeare. Methamphetamine, heroin, marijuana, cocaine and other illegal drugs by any other names smell just as bad, particularly when sniffed by a trained and certified narcotics detection dog, according to the United States Supreme Court. Somewhere way back when, someone figured out that a dog is man's best friend. Following this sage wisdom, the Supreme Court, and most state courts, have granted particular deference to the olfactory abilities of police service dogs.

Probable cause on a silver platter

The United States Supreme Court has ruled that a sniff of luggage located in a public place "did not constitute a search within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. 696 (1983). A suspect aroused the suspicions of DEA agents in the Miami International Airport. They conducted a brief investigation and examined his airline ticket and drivers license. Agents declined the suspect's consent to search because they feared that he would miss his plane and the DEA would be liable for the cost of the ticket. The agents telephoned other DEA agents at New York's LaGuardia Airport to pass on their suspicions about the suspect. Once the suspect arrived in New York, he was met by DEA agents who again asked consent to search his luggage. This time he refused to consent. The agents then detained the luggage and presented it to a trained drug detection dog for a sniff. The dog gave an alert. "Alert" is the term used by some to describe the dog's behavior change when the dog detects the odor of drugs which it is trained to identify. Many canine legal scholars, trainers, and handlers prefer the more accurate term "final response." Based on the dog's alert, the agents continued to detain the luggage and obtained a search warrant. A large quantity of drugs was found. The Court ruled that the dog's final response created sufficient reason for further detention of the luggage and probable cause to search. None of the traditional warrant requirement exceptions, such as search incident to arrest, plain view, automobile, exigency, or stop and frisk, applied in the Place circumstances. Therefore, the agents had to obtain the search warrant.

A sniff is not a search

A canine sniff is not a search because the sniff does not intrude on a legitimate expectation of privacy. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834 (2005). Canine sniffs are not intrusive. The dog's sniff would only reveal the presence of contraband, and not expose luggage (or other items sniffed) to public view. The Supreme Court consistently rules that a suspect cannot have a reasonable expectation of privacy in contraband. United States v. Jacobsen, 466 U.S. 109 (1984). The Place Court noted:

A canine sniff by a well-trained narcotics detection dog does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information is limited. That limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. . . . Therefore, we conclude that . . . exposure of Place's luggage, which was located in a public place, to a trained canine did not constitute a search within the meaning of the Fourth Amendment.

Lower federal courts and many state courts have relied on United States v. Place to establish a firm rule that a positive alert by a trained drug detection dog creates probable cause to search and probable cause to arrest. "A dog alert is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a fair probability that there is contraband. We therefore have held in several cases that a dog alert without more gave probable cause for searches and seizures." United States v. Ludwig, 10 F.3d 1523 (10^th Cir. 1993). A small minority of courts in other states have required independent reasonable suspicion of drug activity, in addition to the alert, to establish probable cause. United States v. Beale, 731 F.2d 590 (9^th Cir. 1983), modified en banc, 736 F.2d 1289 (9^th Cir.), cert. denied, 469 U.S. 1012 (1984). Most courts hold to the majority view that "a drug sniffing dog's detection of contraband . . . establishes probable cause, enough for the arrest, more than enough for the stop." United States v. Williams, 726 F.2d 661 (10^th Cir. 1984); accord United States v. De Los Santos Ferrar, 999 F.2d 7 (1^st Cir. 1993).

On to the search

Once the drug detection dog has sniffed the target vehicle and has alerted to the presence of the odor of narcotics, there remains the issue of whether a warrant is required to search the vehicle. The automobile search exception to the Fourth Amendment warrant clause may eliminate the need for a warrant. Losing the mobility (exigency) of the vehicle by towing or some other means does not destroy the validity of the search. United States v. Ross, 456 U.S. 798 (1982); United States v. Hatley, 999 F.2d 392 (9^th Cir. 1993). An auto exception search extends to the trunk and containers. California v. Acevedo, 500 U.S. 565 (1991). An alert to the passenger compartment also provides probable cause to search the trunk of the car. United States v. Rosborough, 261 F.3d 731 (10^th Cir. 2004). This doctrine applies to vehicles that may be used as homes, such as motor homes and vans, as long as they are capable of mobility. California v. Carney, 471 U.S. 386 (1985). However, some states have eroded the automobile search exception under state constitutional grounds. The Utah Supreme Court has ruled that the Utah Constitution requires both probable cause and some exigent circumstances for a warrantless automobile search. State v. Brake, 103 P.3d 699 (Utah 2004); State v. Larocco, 794 P.2d 460 (Utah 1990).

Even though the automobile exception may allow a warrantless search, consider a warrant. A search for drugs conducted pursuant to a warrant allows officers freedom to slowly and meticulously search. If the search is pursuant to consent, the driver may withdraw consent when he sees officers disassemble the dashboard. The warrant may also provide significant protection against civil rights law suits alleging an unlawful seizure and search. Most importantly, searches under warrant place the burden of proving an illegal search on the defendant. Warrantless searches require the prosecution to prove that the search was unquestionably legal, and that the officers made no legal errors. Some prosecutors issue form warrants for automobile searches premised on a drug dog alert.

Vehicle sniffs

The sniff of the exterior of a vehicle lawfully detained is not a search. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834 (2005). Thus, a patrol officer could be issuing a citation or otherwise conducting business, while a detector dog team sniffed the car with no reasonable suspicion required. "When the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor . . . . Where government officials have lawfully detained a vehicle, a dog's sniff is not a search within the meaning of the Fourth Amendment." Romo v. Champion, 46 F.3d 1013 (10^th Cir. 1995). As long as the vehicle is not detained beyond the time necessary to accomplish the purpose of the traffic stop, whether it be to issue a citation, await for a licensed driver, or simply give a warning, the exterior of the vehicle is free game for a sniff. Some courts have allowed a very brief detention without reasonable suspicion to accomplish a dog sniff when a dog was at the scene. United States v. $404,905.00 U.S. Currency, 182 F.3d 643 (8^th Cir. 1999).

No consent is required for a canine sniff, even absent any reasonable suspicion, if the vehicle is otherwise lawfully detained. United States v. Morales-Zamora, 914 F.2d 200 (10^th Cir. 1990). The scope of the sniff is limited to the outside of the vehicle. "An agent may not unlawfully enter an area in order to conduct a dog search. . . . The warrantless entry of a car interior is unlawful unless there is probable cause to believe that it contains contraband." United States v. Sukiz-Grado, 22 F.3d 1006 (10^th Cir. 1994).

Impounded vehicles

A vehicle impounded for any legitimate reason may be subjected to a detector dog sniff. United States v. Rodriguez-Morales, 929 F.2d 780, (1^st Cir. 1991), cert. denied, 502 U.S. 1030 (1992). There is no requirement of reasonable suspicion for the sniff. United States v. Castro, 166 F.3d 728 (5^th Cir. 1999).

Roadblocks

Assuming that the checkpoint is otherwise lawfully conducted, sniffs may be performed at a roadblock. Merrett v. Moore, 58 F.3d 1547 (11^th Cir. 1995), cert. denied, 519 U.S. 812 (1996); United States v. Morales-Zamora, 914 F.2d 200 (10^th Cir. 1990). However, Utah's Supreme Court has placed significant restrictions on administrative traffic checkpoints.

Bus interdiction

Checked luggage is treated the same as airline luggage; a sniff is not a search and requires neither probable cause nor reasonable suspicion. United States v. Williams, 365 F. 3d 399 (5^th Cir. 2004). However, sniffing a passenger's hand carry items does require reasonable suspicion. United States v. O'Neal, 17 F.3d 239 (8^th Cir. 1994). Officers cannot order passengers to move off the bus and leave their belongings behind without creating a seizure. United States v. Garzon, 119 F. 3d 1446 (10^th Cir. 1997). No seizure occurs when officers board a bus to conduct luggage and passenger area sniffs, if there is no associated detention. If the bus driver permits the officers to board, the sniff is conducted at a regular stop, does not unreasonably delay the bus, and passengers are given no reason to believe that they must stay on board, there is no seizure. Since there is no seizure, no reasonable suspicion is required. United States v. Jackson, 390 F.3d 393 (5^th Cir. 2004). During the course of the sniff, officers may move baggage to make it more accessible to a dog sniff. United States v. Ward, 144 F.3d 1024 (7^th Cir. 1998); United States v. Gant, 112 F.3d 239 (6^th Cir. 1997); United States v. Gault, 92 F.3d 990 (10^th Cir.), cert. denied, 519 U.S. 939 (1996). Officers cannot manipulate the baggage to identify the contents by feel. Bond v. United States, 529 U.S. 334 (2000); United States v. Nicholson, 144 F.3d 632 (10^th Cir. 1998).

Public parking lots and cars parked on public streets

A sniff of cars parked in a motel parking lot does not require reasonable suspicion. United States v. Ludwig, 10 F.3d 1523 (10^th Cir. 1993). Parking lots that open to the public, or in public view and not fenced, are fair game for sniffs without suspicion. United States v. Dunkel, 900 F.2d 105, 107 (7^th Cir.1990) (even though parking lot was curtilage of private office, no legitimate expectation of privacy in parking lot that was open to tenants's guests and was not fenced), vacated on other grounds, 498 U.S. 1043 (1991); United States v. Reed, 733 F.2d 492 (8^th Cir.1984) (officer's initial entry into business parking lot was not a search where lot was bound on three sides by public streets and visible from streets on two sides, fenced gate was completely open to public street, and there was no indication that lot was private to owners and those specifically authorized); United States v. Edmonds, 611 F.2d 1386 (5^th Cir.1980) (finding no legitimate privacy expectation in business loading dock). A dog sniff of a car parked on a public street or alley does not require particularized reasonable suspicion. United States v. Friend, 50 F.3d 548 (8^th Cir. 1995), vacated in part, 517 U.S. 1152 (1996).

School lockers and parking lots

Many agencies cooperate with school officials in sniffing student lockers. Some take the drug detection dog through the hallways as a reminder to the students that school is not appropriate place to do drugs. "The dog's sniffing of student lockers in public hallways and automobiles parked in public parking lots . . . [does] not constitute a search." Horton v. Goose Creek Independent School District, 690 F.2d 470 (5^th Cir. 1982), cert. denied, 463 U.S. 1207 (1983). The Tenth Circuit has expressly authorized drug detection dog sniffs of student lockers. United States v. Venema, 563 F.2d 1003 (10^th Cir. 1977). The situation changes when the principal invites the dog handler to deploy the drug detection dog to sniff students. Most courts rule that sniffs of students are prohibited. However, at least one court disagrees, and has approved random, widespread sniffs of the student body. Doe v. Renfrow, 631 F.2d 91 (7^th Cir. 1980), cert. denied, 451 U.S. 1022 (1981). For now, the wiser course appears to be to refrain from canine sniffs of students.

Package interdiction

Many illegal drugs pass through mail and parcel services. Thousands of sniffs are performed each year in parcel distribution centers. If the package is not delayed beyond a few moments, a sniff may be performed without reasonable suspicion. United States v. Demoss, 279 F. 3d 632 (8^th Cir. 2002) (20 minute detention did not create a seizure). The package may be taken off the conveyor belt to make a sniff more convenient. United States v Gomez, 312 F. 3d 920 (8^th Cir. 2002). Any significant delay must be supported by reasonable suspicion. United States v. Fuller, 374 F.3d 617 (8^th Cir. 2004). Once there is reasonable suspicion to detain the package, delays of a single day are not unreasonable. United States v. Dennis, 115 F.3d 524 (7^th Cir. 1997) (one day delay reasonable); United States v. Banks, 3 F. 3d 399 (11^th Cir. 1993) (one day allowed); United States v. Allen, 990 F. 2d 667 (1^st Cir. 1993) (five hour delay reasonable). Once the dog gives a final response to the package, there is probable cause to obtain a search warrant. United States v. Gomez, 312 F.3d 920 (8^th Cir. 2002).

Currency sniffs

One of the key elements of forfeiting cash is to show a connection to illegal activity. Positive responses by drug detection dogs on currency suspected to be the fruit or instrumentality of the drug trade are reliable evidence that the money should be forfeited. United States v. $242,484 U.S. Currency, 389 F.3d 1149 (11^th Cir. 2004). Though there are rumors that a great portion of the currency in circulation is tainted with drug residue, those claims can be effectively be debunked with good expert witness testimony. United States v. $141,770 U.S. Currency, 157 F. 3d 600 (8^th Cir. 1998) (case explains poor science behind tainted currency claim). Detector dogs used for currency sniffs must be "proofed" on the odor of untainted currency.

Homes

"A man's house is his castle" according to Sir Edward Coke, and few places enjoy a higher expectation of privacy. Some courts hold that a sniff of a doorway, or exterior walls of a home constitute a search, thus requiring probable cause. United States v. Thomas, 757 F.2d 1359 (2^nd Cir.), cert. denied sub nom Fisher v. United States, 474 U.S. 819 (1985). Even though some courts have deemed the sniff of a residential exterior to be a "search," most courts have routinely imposed a reasonable suspicion standard, rather than probable cause, in measuring the lawfulness of such sniffs. United States v. Beale, 736 F.2d 1289 (9^th Cir.), cert. denied, 469 U.S. 1072 (1984). Other courts have required neither reasonable suspicion nor probable cause for sniffs of publicly accessible areas around a home. People v. Dunn, 77 N.Y.2d 19 (1990), cert. denied, 501 U.S. 1219 (1991) (sniff at front door of apartment not a search); United States v. Tarazon-Silva, 960 F.Supp. 1152 (W.D. Tex. 1997), aff'd, 166 F.3d 341 (5^th Cir. 1998) (sniff of dryer vent near driveway not a search); United States v. Vasquez, 909 F.2d 235 (7^th Cir. 1990) (sniff of exterior of garage not a search). A detector dog's sniff who is lawfully inside a home, and spontaneously alerts to hidden drugs, is not a search, and the drugs will be admissible in court. United States v. Reed, 141 F.3d 644 (6^th Cir. 1998).

Jail and prison sniffs

Although some courts frown on general canine sniffs of persons, at least one court has approved the limited use of drug detection dogs to sniff prospective visitors at correctional facilities. Romo v. Champion, 46 F.3d 1013 (10^th Cir. 1995). The court noted: "while the dog's sniff of plaintiffs' bodies was clearly more intrusive than its sniff of the vehicle, it nevertheless was reasonable in light of all the relevant circumstances. Again, plaintiffs' expectations in privacy were reduced because they were visiting a prison, and a dog's sniff of the area surrounding one's body is not terribly intrusive."

Schools

Many agencies cooperate with school officials in sniffing student lockers. "The dog's sniffing of student lockers in public hallways and automobiles parked in public parking lots . . . [does] not constitute a search." Horton v. Goose Creek Independent School District, 690 F.2d 470 (5^th Cir. 1982), cert. denied, 463 U.S. 1207 (1983). The Tenth Circuit has expressly authorized drug detection dog sniffs of student lockers. United States v. Venema, 563 F.2d 1003 (10^th Cir. 1977). Sniffing students is not a wise course. B.C. v. Plumas Unified School District, 192 F.3d 1260 (9^th Cir. 1999). However, at least one court disagrees, and has approved random, widespread sniffs of the student body. Doe v. Renfrow, 631 F.2d 91 (7^th Cir. 1980), cert. denied, 451 U.S. 1022 (1981). For now, the wiser course appears to be to refrain from canine sniffs of students.

Boat interdiction

Coast Guard officers have the right to board any vessel in navigable waters to assure compliance with all laws of the United States. 14 United States Code 89(a); United States v. Troise, 796 F.2d 310 (9^th Cir. 1986). Accordingly, the Coast Guard may take a drug detector dog aboard on such inspections, without any reasonable suspicion. United States v. Todhunter, 297 F.3d 886 (9^th Cir. 2002).

Storage lockers

A detector dog may be used to sniff the exterior of storage units, assuming that officers can lawfully access the units. United States v. Ortega-Jimenez, 232 F.3d 1325 (10^th Cir. 2000); United States v. Mahler, 141 F.3d 811 (8^th Cir. 1998); United States v. Lingenfelter, 997 F.2d 632 (9^th Cir. 1993).

Sniffs of persons

A sniff of a person is a search, and is generally to be avoided. Courts have not been offended by unintentional person sniffs, where a dog alerted to a person near the dog. United States v. Reyes, 349 F.3d 219 (5^th Cir. 2003) (dog four to five feet away from bus passenger alerted without the handler's intention to perform sniff); United States v. Garcia-Garcia, 319 F.3d 726 (5^th Cir. 2003) (brief incidental contact to suspect's leg while dog sniffed aisle was not unreasonable).

Detaining a vehicle to wait for a detector dog

Once an officer decides to detain a vehicle for a sniff, how long is constitutionally "reasonable" to wait for a drug detection dog? Courts routinely approve detentions of twenty to thirty minutes. United States v. Lebrun, 261 F.3d 731 (8^th Cir. 2001) (20 minutes not unreasonable); United States v. Bloomfield, 40 F.3d 910 (8^th Cir. 1994) (one hour wait not unreasonable when dog was requested six minutes after initial stop); United States v. Villa-Chaparro, 115 F.3d 797 (10^th Cir. 1997) (43 minute wait reasonable); United States v. Frost, 999 F.2d 737 (3^rd Cir.) (almost one hour wait reasonable), cert. denied, 510 U.S. 1001 (1993); United States v. McFarley, 991 F.2d 1188 (4^th Cir.), cert. denied, 510 U.S. 949 (1993) (38 minute wait reasonable); United States v. Alpert, 816 F.2d 958 (4^th Cir. 1987) (50 minute wait reasonable); United States v, Borys, 766 F.2d 304 (7^th Cir.), cert. denied, 474 U.S. 1082 (1985) (75 minute wait reasonable); LeMense v. State, 754 P.2d 268, 274 (Alaska App. 1988) (approximately 30 minute wait reasonable).

However, in rural areas a drug detection dog is often not available within that time frame. Courts focus on more than just the time delay; the critical factor appears to be the officer=s diligence in getting a drug detection dog to the scene. One court considered a fifty minute delay from the time of the stop to the arrival of the dog. The court noted that the stop occurred thirty-one miles from where the nearest drug detection dog was stationed, and found that the delay was not unreasonable. State v. Welch, 873 P.2d 601 (Wyo. 1994). Another court explicitly ruled that the fifty minutes necessary to secure a drug detection dog was not unreasonable when the dog was stationed twenty-five miles away. The court also noted that it could not expect that the police would have a dog available at a shorter distance, given the rural area. United States v. Hardy, 855 F.2d 753 (11^th Cir. 1988). Several courts have approved detentions of up to ninety minutes, when the detention is supported by reasonable suspicion and the officer acts with due diligence to get the dog to the scene as soon as practical. United States v. $64,765.00 U.S. Currency, 786 F. Supp. 906 (D. Or. 1991).

Establishing reliability of the detector dog

While the dog's positive alert can alone constitute probable cause to search, the reliability of the particular dog must be established in court, much like an expert witness's credentials.. Most courts which have considered questions of canine reliability have relied to some degree on the dog's certification. United States v. Boxley, 373 F.3d 759 (6^th Cir. 2004). There are several national and state certification programs available. Utah=s certification program has been copied in several states throughout the nation. Generally, if a dog's training is documented, and the dog is certified at the time of the sniff, and has developed a successful track record, the court will inquire no further. Following are examples of evidence required to establish reliability of detector dogs:

-- Court refused to authorize extensive defense requests for the police dog's training records, veterinary records, alert reports and other miscellaneous documents. "We do not believe the documents were relevant because the dog was certified on the day in question and because the dog properly alerted to the presence of contraband. . . . Indeed, had the dog's records indicated it had false-alerted in the past, defendant's ability to cross-examine would not have been enhanced because there is no doubt it correctly alerted in this instance." United States v. Gonzalez-Acosta, 989 F.2d 384 (10^th Cir. 1993).

--The prosecution need not provide the dog's training and performance records. Handler's testimony as to the dog's track record is sufficient. Training and performance records are relevant for assessing the weight to give to the dog sniff, but are not required. United States v. Boxley, 373 F.3d 759 (6^th Cir. 2004).

--Fact that dog was certified by a standards organization was sufficient to show reliability and training records were not required in court. United States v. Sundby, 186 F.3d 873 (8^th Cir. 1999).

--Reliability is acceptable when handler and dog completed all standard training procedures for drug-detecting teams and that the dog was certified to detect a variety of narcotics, including marijuana and its derivatives, cocaine and its derivatives, heroin and its derivatives and methamphetamine, even though dog located the odor of PCP and had not been certified to find PCP odor. United States v. Outlaw, 316 F.3d 701 (5^th Cir. 2003).

--Despite handler's inability to state with precision what in-service training should be conducted, and despite failure to show training records, reliability established when canine unit supervisor testified that the dog was certified at the time of the sniff. United States v. Hill, 195 F.3d 258 (6^th Cir. 1999).

--The prosecution must show that the dog was trained to detect the odors of particular drugs, that the dog has had an acceptable success rate, how the dog is trained to indicate an alert, and that the dog alerted in the proper fashion on the time in question. United States v. Delaney, 52 F.3d 182 (8^th Cir. 1995).

--Completion of drug detection school and certification of dog and handler sufficient to establish reliability. Reliability is generally presumed if a sniff results in probable cause to search, though the defense may always challenge the dog's reliability. United States v. Sanchez-Pena, 336 F.3d 431 (5^th Cir. 2003).

--Records of training and certification of the dog must be provided to defense. United States v. Cedano-Arellano, 332 F.3d 568 (9^th Cir. 2003).

--Handler's testimony that dog was certified on day of sniff and had never given false indication sufficient to show reliability. United States v Lopez, 380 F.3d 538 (1^st Cir. 2004).

--Court testimony of handler that dog was reliable sufficient to show reliability for purposes of probable cause. United States v. Robinson, 390 F.3d 853 (6^th Cir. 2004).

Tracking dog evidence

The Royal Canadian Mounted Police and other Canadian public safety agencies have used dogs to track suspects for many years with great success. Canadian officers often introduce evidence that the dog tracked a particular person as evidence of the person=s involvement in a crime. Some of their United States counterparts are following suit. Over thirty states allow tracking evidence to be admitted in court. State v. Buller, 517 N.W.2d 711 (Iowa 1994) (listing 32 state court decisions). With the proper foundation, a tracking dog=s actions can tie critical evidence to suspects, as well as simply locating the evidence. Epperly v. Booker, 997 F.2d 1 (4^th Cir. 1993). Tracking dogs can directly identify suspects based on articles left at a crime scene. United States v. Gates, 680 F.2d 1117 (6^th Cir. 1982). A dog may provide probable cause to arrest a suspect who has fled from the scene, when the dog tracks a scent and leads officers to the suspect. Warren v. City of Lincoln, 864 F. 2d 1436 (8^th Cir. 1989).

Arson detector dog evidence

An arson detector dog can help identify the source and cause of a suspected arson fire. State v. Schultz, 58 P.3d 879 (Utah App. 2002). Although the dog's indication of the presence of accelerants may not be admissible as substantive evidence that the fire was caused by arson, a properly trained and certified dog can locate evidence that might otherwise not be detected. Some courts allow evidence of the dog=s indication as prima facie evidence that accelerants were present at the fire. State v. Buller, 517 N.W.2d 711 (Iowa 1994).