LEGAL POINTS  AND CASE LAW The use of Narcotic Detector Canines

NARCOTIC DETECTOR DOGS

Introduction

Throughout the years, many sophisticated electronic and mechanical devices have been developed to aid man in accomplishing various tasks. Although this modern day technology has accomplished many significant achievements, there is one very important aid that has been available for millions of years to man. Only in recent years has its capability been fully exploited and developed for use in the more complex tasks. This aid is man's best friend and most loyal companion -- the dog.

The use of dogs has long been an accepted practice in police work. Dogs are effective aids in law enforcement and perform a variety of functions, ranging from tracking down fleeing suspects to gathering evidence. Despite controversy, the use of police dogs has gained general approval in the United States and foreign countries. Effectiveness, convenience and economics are some of the reasons for this acceptance. Given proper training, the capacity of dogs to detect contraband is much greater than that of humans. They are available for work 24 hours a day, respond with greater speed in emergencies, and are unquestionably cost-effective. They do need nourishment, but never salaries or fringe benefits.

This information addresses certain legal facets of dog use in law enforcement. Using decided cases, it probes into the validity of the use of dogs in search and seizure cases, particularly in schools. Airports and other field settings: looks at whether dog sniffs alone suffice to establish probable cause necessary to obtain a warrant; and discusses the legal liabilities that are inherent in the use of dogs in police work.

Whereas there are not many cases on record pertaining to the usage of narcotic detector canines, all supervisory officers of units utilizing canines in their narcotics interdiction programs are encouraged to continually research and up-date case law pertaining to the use of trained narcotics detection dogs and keep themselves and their handlers current as to day-to-day court decisions.

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THE LEGALITY OF SEARCHES AND SEIZURES USING DOGS

The general rule is that the use of dogs to sniff suspicious items or containers does not constitute search, and therefore is not covered by the constitutional constraints against unreasonable search and seizure. Some of the justifications for this judicial posture are: the use of dogs does not involve any physical intrusion; the intrusion is restricted because the dog is discriminate; the intrusion is not aimed at the person but rather at an inanimate object; and the use of dogs is not analogous to using a sophisticated electronic device. Warrant-less sniffing has therefore been given the seal of approval by the courts.

The leading case on the validity of dog search is United States v. Place, decided by the U.S. Supreme Court on June 20, 1983. In that case, surveillance by law enforcement officers started at the Miami International Airport where suspect Raymond Place had purchased a ticket for a trip to New York's La Guardia Airport. Upon arrival at the La Guardia Airport, two Drug Enforcement Administration agents approached Place, saying that they believed he might be carrying narcotics. When Place refused to consent to a search of his luggage, one of the agents told him that they were taking the luggage to a federal judge to obtain a warrant. The agents took the luggage to the Kennedy Airport in New York, where it was subjected to a "sniff test" by a trained narcotics detection dog, with positive results. The agents then obtained a search warrant for the suitcase and, upon opening it, discovered cocaine.

Place was indicted in federal court for possession of cocaine with intent to distribute. He moved to suppress the contents of the luggage, claiming the warrant-less seizure of the luggage violated his Fourth Amendment rights. In support of his motion, Place also contended that his detention was not based on reasonable suspicion and the "sniff test" of his luggage was conducted in a manner that tainted the dog's reaction. The District Court denied the motion, but the U.S. Court of Appeals for the Second circuit reversed that decision on appeal. The case went to the U.S. Supreme Court on a writ of certiorari. In a decision penned by Justice Sandra Day O'Connor, the majority of the justices said that subjecting luggage to a sniff test by a well-trained narcotics detection dog does not constitute a search with the meaning of the Fourth Amendment. In characterizing these actions, the Court said:

"A 'canine sniff' by well-trained narcotics detection
dog...does not require opening the luggage. It does
not expose non-contraband 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.

Despite the validity of the sniff test, the evidence in that case had to be excluded, because the police, by holding the luggage for 90 minutes before subjecting it to a sniff, exceeded the limits of a Terry-type investigative stop.

Justice Brennan concurred in the Place decision, but did not go along with the Court's pronouncement of a legal canine sniff, saying that he would have left the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case. Justice Brennan's reservations are better articulated in an earlier case where, in a dissent to a per curiam decision, he said:

"I would grant certiorari to teach petitioner another
lesson: that the Fourth Amendment protects 'the right
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures', and that before police and local officers
are permitted to conduct dog-assisted dragnet inspections
of public school students, they must obtain a warrant
based on sufficient particularized evidence to establish a
probable cause to believe a crime has been or is being
committed."

The Court decision in U.S. v. Place reflects the attitude of most federal courts of appeals on the issue of dog sniffs. For example, in U.S. v. Bronstein, the Second Circuit ruled that there can be no reasonable expectation of privacy when one transports baggage by plane, when the menace to public safety by the skyjacker and the passage of hazardous freight compel continuing scrutiny of passengers and their luggage. In U.S. v. Solis, the Ninth Circuit held that the use of trained dogs to detect the presence of marijuana does not constitute a search, but was a 'monitoring of the air in an area open to the public', hence was not a prohibited search under the Fourth Amendment. In U.S. v. Fulero, the Court of Appeals for Washington, D.C., rejected defendant's contention that the action of a trained dog in sniffing the air around footlockers, was unconstitutional intrusion.

The court in Fulero, however, made a distinction between sniffing of the air around a footlocker and an intrusion into the locker where a person has a reasonable expectation of privacy.

Not all dog-sniffing cases have resulted in a favorable decision for law enforcement officers. For example, in U.S. v. Beale, a dog was used to sniff the luggage of an airline passenger whose behavior comported with a drug courier profile. A search warrant was then obtained based on the animal's alert. On appeal, the Ninth Circuit held that dog sniffs come under the Fourth Amendment, but since its intrusion is a limited one, such may be based on an officer's founded or articulable suspicions instead of on probable cause.

The case of People v. Williams is instructive because it is one of those rare cases that sets the outer limits of police conduct. In Williams, a California state court of appeals held that the use of a trained dog to sniff out the presence of marijuana in an airline baggage room was an unreasonable exploratory search. In that case, acting without a search warrant and without notice or knowledge of the possible presence of any narcotics, a deputy sheriff and an unsalaried deputy sheriff took a dog to the baggage stating area of an airline to allow the dog to engage in a sniffing expedition of a general, routine and exploratory nature. The dog came to an alert, and chewed and sniffed at a bag in an airline baggage container, whereupon the bag was opened and marijuana found. Neither deputy had received permission from the airline to conduct such a search, nor had the airline manager of airport services given narcotics task force officers blanket authority to make general exploratory searches in the baggage area. Moreover, the trial court found that the deputies were not acting as an agent of the airline, they had no probable cause, and were in effect trespassers. Such behavior on the part of the deputies rendered the search illegal.

In the aggregate, court cases indicate that dog searches in open spaces are not searches at all in the constitutional sense, hence are outside the umbrella of the Constitution. Nonetheless,..the courts will not allow general exploratory searches where they violate a person's justifiable expectation of privacy or where the police officer commits an illegal act of trespass in the process.

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THE USE OF DOGS IN SCHOOLS

The use of dogs to sniff out lockers and students in high schools has generated a spate of lawsuits that invite careful analysis. The seminal and leading case is Doe v. Renfrow, decided by the Seventh Circuit Court of Appeals in 1981.

In Doe, a civil right actions charging violations of constitutional rights was brought by junior high school students against school officials, the police chief and the trainer of the drug-detecting canines. The suit alleged that the plaintiff and others were illegally sniffed by police dogs during school hours, and pocket-searched if a dog alerted the authorities to the possibility of drug possession. As part of the drug investigation, the plaintiff maintained that she and three other students were forced to remove their clothing and submit to visual inspection by defendant's agents. The complaint further stated that 2,780 students at the local high school were subjected to the canine sniffing and that 17 of them were thereafter summarily suspended, expelled or compelled to withdraw from school. All these, according to the plaintiff, took place despite the absence of particularized facts, reasonable suspicion or probable cause to believe that any of the persons subjected to the canine drug investigations possessed controlled substances.

The Federal District Court held that dog-sniffing was not a search, and therefore did not come under the protection of the Fourth Amendment. The legality of requesting students to empty their pockets and purses was also upheld; but the district court concluded that conducting a nude search of a student solely upon the continued alert of a trained drug-detection canine was unreasonable even under a standard lower than probable cause. On appeal, the Seventh Circuit ruled that school officials were not immune from liability because their conduct in permitting the nude search of students exceeded the bounds of reason. Significantly, though, a majority of the court held that the dragnet inspection of the entire student body by trained police dogs and their handlers did not constitute a search under the Constitution. The possible liability came from the nude search, which, the court said, was not only unlawful, but outrageous under the settled indisputable principles of law. The case went to the United States Supreme Court on a petition for certiorari but was dismissed per curiam, hence the decision stays. In a spirited dissent from the per curiam dismissal, Justice Brennan said:

"While school officials, acting in loco parentis, may take reasonable steps to maintain a safe and healthful educational environment, their actions must none the less be consistent with the Fourth Amendment. The problem of drug abuse in the schools is not to be solved by conducting school-house raids on unsuspecting students absent particularized information regarding the drug users or suppliers."

In Zamora v. Pomeroy, the Court of Appeals for the Tenth Circuit decided that there was no violation of student's rights where dogs were used to sniff school lockers, even though no specific student has been suspected of possessing marijuana, and school officials searched lockers after the dog indicated it contained marijuana. Summarizing the case law on the validity of locker search in schools, the court said:

"The basic theory is that although a student has rights under the Fourth Amendment, these rights must yield to the extent that they interfere with the school administration's fundamental duty to operated the school as an educational institution and that a reasonable right to inspect is necessary in the performance of its duties, even though it may infringe, to some degree, on a student's Fourth Amendment rights.

Implicit in the court's decision is a determination that even if students have a right of privacy to school lockers, such right must give way to the more compelling interest of providing an education. The approach used is primarily a balancing of interests, with the balance being tipped in favor of schools. Strengthening the position of schools in these cases is the in loco parentis doctrine courts use in similar cases. If students are considered wards of the school, then their constitutional rights are diminished accordingly. Some cases have gone so far as to say that school officials not only have the right - but also an affirmative duty - to search lockers."

While most courts consider dog searches in schools to be reasonable and therefore valid, several practices have drawn negative reactions. For example, in Horton v. Goose Creek Independent School District, the Fifth Circuit in 1982 held that a student's constitutional rights are not to be disregarded simply because he is in the confines of school property. In Horton, school district had adopted a drug prevention program that called for the hiring of a security service to provide dogs trained to detect the presence of controlled substances. The dogs were taken to the school on a random and unannounced basis to sniff student lockers, automobiles and students. If a dog indicated the presence of a controlled substance, the school authorities would search the locker without student's consent.
If a student was suspected (through the dog's sniff) of having drugs, his pockets, purse and other garments were searched; however, no strip searches or body cavity searches occurred.
The District Court held that sniffing was a search, but was not unreasonable and therefore did not violate the Constitution.

The Fifth Circuit reversed, holding that the sniffing of students' cars and lockers were permissible, but that a search of their person was violative of constitutional right in the absence of individualized suspicion. The court drew a distinction between dogs sniffing inanimate objects and sniffing persons. The Horton decision therefore reiterates the constitutional tenet that a person"s body enjoys greater protection that the space around him and hence comes under the protection of the Fourth Amendment even in public places. People enjoy a reasonable expectation of privacy as to their bodies just about everywhere they go.

The Horton decision can be reconciled with the Seventh Circuit decision in Doe in that Horton involved individualized dragnet sniffing of students, while Doe was a dragnet inspection involving canine teams visiting each classroom, spending approximately five minutes in each classroom and going up and down the aisles while students were instructed to sit quietly with their hands, purses and handbags placed atop their desks.

There was no evidence in Doe that the dogs actually touched the students, while in Horton evidence showed that the dogs put their noses up against students' bodies. The key element in these cases is the degree of intrusiveness; certainly, individualized sniffing is more intrusive, if not more demeaning, that a generalized inspection, although such may also involve a degree of intrusion. In summary, courts of appeals decisions have held that dog sniffing of inanimate objects in public places in schools does not amount to a search, but people sniffing is intrusive and cannot be allowed unless articulate suspicion or probable cause is present.

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DOG SNIFFING AND PROBABLE CAUSE

Since dogs can be used in police work to sniff things in public places, how do you then establish probable cause sufficient for the issuance of a search warrant? Court cases indicate that a dog's previous record is important for purposes of a probable cause finding. In People v. Furman, a California appellate court held that probable cause existed because the informants tip had been corroborated by the narcotics officer's independent investigation, stating that evidence of the dog's high-level performance and great degree of accuracy justified reliance on its reactions as corroboration for the tip. The dog in that case had achieved a test accuracy score of 90 percent or more out of 100 problems, and testimony was taken from the officer that the dog had never mistakenly reacted to objects that did not contain marijuana or hashish. Moreover, the dog's skill at marijuana detection had led to about 100 arrests the previous year.

In Fulero, the Court of Appeals for Washington, D,C., noted that the dog had been working for two years, had been consistently reliable in the detection of marijuana, and had discovered marijuana on about ten previous occasions. An in U.S. v. Waltzer, the Second Circuit sustained a lower court finding of probable cause testimony indicated that the dog used in the case had 100 percent accuracy in previous cases. In Beale, the Ninth Circuit was even more emphatic on the issue of the dog's track record, saying:

"The mere fact that a dog alerts to a suitcase, even where there is founded suspicion to allow the dog to sniff, is not necessarily ground for probable cause to open and inspect suitcase; knowledge that the dog is reliable is central to establishing the necessary probable cause.
(Emphasis added.)

How is a dog's expertise to be established? Is there a threshold level at which a dog's skill can be given legal credence? No cases have addressed these issues; however, it is safe to assume that the level of acceptable training, in the absence of a uniform standard, would vary among judges. This may sound arbitrary, but the reality is that the admissibility of all evidence is initially determined by the trail judge anyway, such determination being respected by an appellate court in the absence of prejudicial error. Moreover, probable cause determination, despite existing legal definition, is basically subjective and is left undisturbed on appeal unless there is clear and convincing evidence to the contrary. Obviously, discretion abounds in various phases of criminal justice, among them the determination of an acceptable level of dog expertise to establish probable cause.

Courts have indicated that a trained narcotics dog's finding that contraband is present can be sufficient, standing alone, to establish probable cause. In Bouler v. Florida, as a result of information obtained by a wiretap, police officers and a drug dog waited at an airport for the arrival of the suspects. While the suspect was waiting in line to purchase a ticket and check his luggage, the dog reacted to a bag, indicating the presence of drugs. Appellant was then frisked and taken to an office. Later, the drug dog reacted to the appellant vehicle in the parking lot and, based on that, a warrant was obtained for the vehicle - in which was found a suitcase containing contraband drugs. At the trial, the defendant challenged the presence of probable cause for obtaining a search warrant for the vehicle based solely on what the dog found. Citing state and federal cases, the court concluded that ',,,,a trained narcotics dog's indications that contraband is present can be sufficient alone to justify probable cause…”.

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TO ESTABLISH PROBABLE CAUSE

In U.S. v. McCranie, the Tenth Circuit, quoting another circuit court case, said that a police dog's positive reaction to an airport sniff of a suspect's luggage was sufficient to establish probable cause for a warrant to search the luggage.

Once probable cause is established through dog sniffing, must a search warrant be obtained? The rule is no different from that in other types of search and seizure cases, which is that a warrant must be obtained unless exigent circumstances justify a warrantless search. Such was the ruling in U.S. v. Dien, where the Second Circuit said that its conclusion that the use of trained dogs to sniff luggage to see if it contained narcotics did not come within the protection of the Fourth Amendment '...does not stand for the preposition that if the odor of marijuana is detected by a trained dog...that the container may then be opened and searched without a warrant.'

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USE OF A TRAINED CANINE NOSE

In recent years police have made extensive use of specially trained dogs to detect the presence of explosives or, more commonly, narcotics. These dogs are utilized in checking persons and effects crossing the border into the United States, luggage accompanying persons traveling by airline or bus, freight shipped by airline, and the contents of vehicles and storage facilities. In light of the careful training which these dogs receive, it is clear that an "alert" by a dog will constitute probable cause for an arrest or search if a sufficient showing is made as to the reliability of the particular dog used in detecting the presence of a particular type of contraband. The more difficult question, which is of primary concern here, is whether such use of "canine cannabis connoisseurs" or similarly trained dogs itself constitutes a search so as to be subject to the limitations of the Fourth Amendment.

As previously noted, it is no search for a lawfully positioned police officer to utilize his own olfactory senses in order to detect the presence of contraband within a nearby enclosed object. Whatever might otherwise be the case, it is clear that the use of trained dogs is at least subject to the same limitations as apply to an officer's use of his own senses. This means, for examples, that if an "alert" by a trained dog is accomplished by having the animal intrude into an area which the police may not lawfully enter, then this course of conduct constitutes a Fourth Amendment search. This result, it must be emphasized, may be reached without a determination of whether a non trespassory use of the trained dog would likewise constitute a search.

The hard and more common case is that in which the dog and his police handler were lawfully present at the time the dog "alerted" and thereby indicated the presence of contraband in a particular object nearby. A few courts have held that such reliance upon the trained canine nose to detect that which the officer could not discover by his own sense of smell constitutes a search. Most courts, however, have either held or assumed otherwise, sometimes characterizing the defendant's argument to the contrary as "frivolous." In the main these cases are short on reasoning, but a careful assessment of the reasons which have been given justifies the conclusion that it is unsound to assert that such police activity does not constitute a search.

One reason which has been given in support of the proposition that using trained dogs in this way is no search is that the practice is essentially no different from the officer using his own sense of smell.


In U.S. v. Bronstein, for example, the court asserted:

"If the police officers here had detected the aroma of the drug through their own olfactory senses, there could be no serious contention that their sniffing in the area of the bags would be
tantamount to an unlawful search.*** We fail to understand how the detection of the odoriferous drug by the use of the  sensitive and schooled canine senses here employed alters the situation and renders the police procedure constitutionally suspect."

But this simply is not so. As one commentator has rightly noted, "application of a 'lain smell' doctrine to dog searches *** stretches the imagination," for the fact of the matter is that in Bronstein and all the other cases "none of the officers involved was able to detect the odor of narcotics; the drugs were not in the plain smell of the officer. The officers needed trained dogs to sniff out the contraband."

Bronstein also asserts that the use of the trained dogs is no search because this is simply another instance of the police utilizing "certain 'sense-enhancing' instruments to aid in the detection of contraband." Because, so the argument goes, the cases have generally held that the use of a flashlight or binoculars to aid the natural senses does not constitute a Fourth Amendment search, it follows that it is not a search to resort to "canine assistance in pursuit of the criminal." This analogy is equally unsound. As Judge Mansfield noted in his concurring opinion in Bronstein,

"...the police have been permitted to enhance or magnify the
human senses with the aid of instruments such as binoculars or
flashlight ***. But that is not the case here where the "nose" being put into others' business was clearly an intrusion. The police agents here did not smell or see any contraband, nor were their senses enhanced. Their only indication that marijuana was present was the action of the dog. Their own senses were replaced by the more sensitive nose of the dog in the same manner that a police officer's ears are replaced by a hidden microphone in areas where he could not otherwise hear because of the inaudibility of the sounds. The illegality of the latter practice in the absence of a search warrant or special circumstances has long been established."

A far better analogy is to the utilization of magnetometers and similar devices, which have consistently been held to amount to a search within the meaning of the Fourth Amendment. Again Judge Mansfield:


"There is no legally significant difference between the use
of an x-ray machine or magnetometer to invade a closed area
in order to detect the presence of a metal pistol or knife,
which we have held to be a search ***, and the use of a dog
to sniff for marijuana inside a private bag. Each is a
non-human means of detecting the contents of a closed area
without physically entering into it. The magnetometer
ascertains whether there is metal hidden space by detecting
changes in the magnetic fields surrounding the area of the
hidden space. The dog uses its extremely sensitive
olfactory nerve to determine whether there are marijuana
molecules emanating from the hidden space. Neither
constitutes a particularly offensive intrusion, such as
ransacking the contents of the hidden space, or exposing
a person to indignities in the case of the personal search.
But the fact remains that each detects hidden object without
actual entry and without the enhancement of human senses.
The fact that the canine's search is more particularized and
discriminate than that of the magnetometer is not a basis
for a legal distinction. The important factor is not the
relative accuracy of the sensing device but the fact of the
intrusion into a closed area otherwise hidden from human
view, which is the hallmark of any search. If, as we have
held, examination of carry-on luggage and individual
passengers by a magnetometer or x-ray machine amounts to
a search within the prohibition of the Fourth Amendment
because it discloses hidden items within areas where
there is a normal expectation of privacy, *** then the
intrusion of a sniffing dog in search of marijuana must
also fall within that prohibition when directed at hidden
areas where there is similarly a normal expectation of
privacy."


As to this very last point, it is sometimes asserted that no such expectation of privacy exists as to luggage traveling by airline. In Bronstein, for example, the court asserted: "There can be no reasonable expectation of privacy when one transports baggage by plane, particularly today when the menace to public safety by the skyjacker and the passage of dangerous or hazardous freight compels continuing scrutiny of passengers and their impedimenta."
But this will not wash. As the Supreme Court recently concluded in U.S. v. Chadwick, "...a person's expectations of privacy in personal luggage are substantially greater than in an automobile." Moreover, to assert that there is not reasonable expectation when that luggage is transported by air is clearly contrary to the well-established rule that the use of a magnetometer upon such luggage is a search. And in any event, as one judge has aptly pointed out:

"To search only for well-concealed narcotics and then
attempt to justify the search under the need for the safety
of airline passengers' and baggage is in my judgment a
misapplication of the law. I believe that the above rule
enunciated in Bronstein ***, without limitation and extended
to its obvious, logical conclusion, would give carte blanche
to a police officer with suspicion to intentionally open
any item of checked baggage and subject it to a general
search."

In the final analysis, the question of whether the use of a trained canine nose to detect the presence of concealed contraband is a search must be determined by the justified-expectation-of-privacy test of Katz v. U.S.. Under Katz, "...the critical question is the kind of intrusion a free society is willing to tolerate." That is, a "value judgment" must be made, namely, "...whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society." Totally unrestrained use of trained dogs, it is submitted, would not be consistent with the kind of open society to which we are committed. It would be intolerable if the police, in no way limited by the Fourth Amendment, were free to utilize dogs to undertake "...a wholesale examination of all baggage in the hope that a crime might be detected" or "...to roam the streets at will with trained dogs or sensor instruments, detecting the odor of marijuana and arresting persons at will as a result." Significantly, in every case in which the trained canine nose has been used in such an indiscriminate fashion, the court has without hesitation held that such use was a search and that the search was unreasonable under the Fourth Amendment.

The unfortunate tendency of many courts to assert or assume that use of a trained canine nose is not a search may in fact be attributable to a widely-held view that this "useful law enforcement tool" should not be encumbered by the restrictions ordinarily applicable to other types of searches which are clearly more intrusive in character. That is, when it is said that this practice does not amount to a search, the underlying objective may merely be to free this rather unique surveillance technique from the requirements that there be full probable cause and - absent exigent circumstances - a search warrant in hand prior to the time the dog is permitted to do his sniffing. But, while it has sometimes been asserted that if the use of trained dogs is a search then such surveillance is unconstitutional if "...conducted in absence of a warrant supported by probable cause," the Fourth Amendment does not demand such a result.

In Terry v. Ohio, the Court upheld a limited warrantless search made upon less than full probable cause "...by balancing the need to search {or seize} against the invasion which the search {or seizure} entails," and thus a similar approach might be taken as to the kind of search here under discussion. Indeed, some have forcefully argued that "...express recognition of the limited search concept would introduce a more consistent rationale into the cases involving narcotics dogs."

Even though there are sound reasons for not employing too generously "...a graduated model of the Fourth Amendment," the notion that the use of dogs trained to detect narcotics or explosives is a lesser intrusion subject to lesser Fourth Amendment restrictions is sound. This is because this particular investigative technique is a distinct police practice which quite obviously is much less intrusive than other searches. It is distinguishable from all other search activities in that there is no risk that an innocent person's privacy will be intruded upon.

"While a bugging device allows an officer to detect both
innocent and criminal conversations, and a flashlight allows
him to see both innocent and criminal objects, the canine
detects only contraband. Any intrusion is minimal because
the only information gleaned from the "examination" is
whether contraband is present. If an innocent person"s
suitcase were "examined" by the canine, the handler would
learn only that marijuana was not present."

Moreover, because the "...canine is extremely reliable, and any mistake favors the suspect," there is not even any appreciable risk that as a consequence of the dog's use an innocent person will be arrested or an object containing only innocent effects will be entered. Nor can it be said that innocent persons will otherwise be interfered with to any substantial extent. When a dog is allowed to approach effects which do not contain the contraband sought, the animal will not "alert," and thus there will be "....no annoyance, inconvenience, or humiliation" connected with the unproductive surveillance.

Because utilization of a trained canine nose is clearly a lesser intrusion as compared to the typical search, this practice should be permissible upon a lesser quantum of evidence than is ordinarily required to meet the probable cause test. Thus, some courts have held that a search conducted by using a canine nose to detect contraband is permissible provided the police had a "founded suspicion" or "reasonable suspicion," based upon articulable facts, that contraband was present within the object to which the animal was directed. Several other cases, although appearing to uphold the practice upon some broader basis, are consistent upon their facts, for they indicate that the approved surveillance was actually undertaken upon a reasonable suspicion.

Although these cases also take the position that the police are under no obligation to obtain a search warrant before utilizing trained dogs to determine if contraband is present within a certain object, it is less than apparent that this is correct. The no-warrant conclusion is not an inevitable consequence of the fact that a lesser quantum of evidence will suffice, for surely this lesser standard could be made the basis upon which warrants for this purpose would issue. Indeed, it could be argued with some force that the risk of police error is greater when something other than the usual probable cause standard is applied, so that there is even more reason to have the neutral and detached judgment of a magistrate in this context. Nor can the no-warrant conclusion be explained on the ground that trained dogs are almost always used in exigent circumstances, for the facts of the cases show that this is not true. Also unavailable is the contention that the warrant clause does not extend to searches of personal effects outside the home, for this claim was rejected by the Supreme Court in the recent case of U.S. v. Chadwick.

Chadwick notwithstanding, an argument might be made that the warrant process should not be extended to such minimal privacy invasions as the use of trained dogs to sniff out drugs or explosives. Use of the warrant process to deal with police practices which present only a "...minor peril to Fourth Amendment protection," it could well be argued, would tend to downgrade that process and thus might tempt magistrates to be less cautious in exercising their warrant-issuing authority. That is, it may well be that, as a practical matter, the warrant process can best serve as a meaningful device for the protection of Fourth Amendment rights if it is used somewhat selectively to prevent those police practices which would be most destructive of Fourth Amendment values. However, this position has not as yet received attention from the courts.

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HAWAII JOINS MAJORITY VIEW ON LUGGAGE SNIFFS BY TRAINED DOGS

The Hawaii Supreme Court joins the growing number of courts that have recently addressed the constitutionality of luggage inspections by dogs trained to sniff out illegal drugs. See U.S. v. Waltzer, 7 LOV 1 (CA2 1982)L Oeuioke v, Natvberrtm 6 KOB 133 (cakuf 1082): abd Y,/s, v, Deale, 6 LOB 121 (CA9 1982). Agreeing with a majority of those courts, it concludes that these inspections are not searches within the meaning of the Fourth Amendment and, therefore, may be conducted without a warrant or even probable cause. The court warns, however, that it will not tolerate the indiscriminate use of drug-detecting canines, and it establishes a few guidelines to ensure against such use. (State v. Graves, 7/14/82.)

The facts of this particular case are somewhat unusual in that the suspicious odor of marijuana was first detected by human, rather than canine, noses. First, an airline employee, who was unloading baggage from a plane, smelled what he thought was marijuana emanating from the defendant's suitcase. The same odor was next smelled by the state narcotics officer who was summoned to the scene. Only then was a trained dog, with a proven track record of drug detections, called into the investigation. He sniffed the bag's exterior, and his positive alert was then used to obtain a warrant to search the bag's contents.
The court acknowledges that luggage is inherently associated with privacy and, therefore, usually deserves strong Fourth Amendment protection. But canine inspections intrude only into the "airspace surrounding a person"s luggage." where there can be no reasonable expectation of privacy. Such inspections, moreover, pose "no threat of harassment, intimidation or even inconvenience to the innocent citizen," the courts emphasizes. The warrantless use of trained drug-detecting dogs to inspect the exterior or luggage is thus not illegal in and of itself.

The court cautions, however, against reading its decision as a "carte blanche sanctioning of all uses of these dogs." Rather, their use must be reasonable under the circumstances. The indiscriminate sniffing of high school students and the wholesale examination of all luggage are examples of where the use of drug-detecting canines may go too far.

"The legality of the use of narcotics-sniffing dogs will depend on the circumstances of the particular case," the court says. "This court will not condone the use of these dogs in general exploratory searches or for indiscriminate dragnet-type searches. Furthermore, as a constitutional minimum, we will require that the dog and its handlers be fully qualified." Also, the court emphasizes, "a positive alert by a narcotics-sniffing dog does not obviate the need for a search warrant."

The inspection in this case meets the test of reasonableness. It was not indiscriminate, but was instead prompted by a tip from the airline employee and an experienced police officer's own suspicions. The dog and his handler were "fully qualified," and a warrant was obtained before the suitcase was opened.


Judge tosses out drug evidence recovered by unreliable police dog KNOXVILLE, Tenn. (AP) -- About 560 pounds of marijuana seized by sheriff's deputies cannot be used as evidence because the drug-sniffing dog that alerted them is more often wrong than right, a federal judge ruled. U.S. District Judge Leon Jordan ruled Tuesday that because the dog is so unreliable, Knox County deputies had no probable cause to search the motor home of David and Pamela Stonebreaker during a stop last August. Officers found the pot in their vehicle after a German shepherd named Falco alerted his handlers to the presence of drugs. But according to testimony, Falco alerted his handlers 225 times between 1998 and 2000, and officers found drugs only 80 times, a success rate of 36 percent. "The defendants argue that there was no probable cause to search their vehicle because Falco was unreliable and there was no other corroboration to support the search," Jordan wrote. "This court agrees." Following the stop, the couple confessed to transporting large quantities of marijuana from the Phoenix and Los Angeles areas to the Washington, D.C., area, according to court documents. The judge ruled those statements will not be allowed.

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CANINE DRUG INSPECTIONS:Why A Dog Can Be A Cop's Best Friend November 18, 1997  ...

 the Supreme Court specifically ruled that the sniff by the drug dog did not violate the defendant's constitutional rights. The United States Supreme Court has long recognized that a "sniff" for drugs by a well-trained dog does not require a search warrant. In United States v. Place (1983), a drug-detection dog alerted to the defendant's luggage; a search warrant was obtained, and a large quantity of narcotics was found inside. Although the government lost its case against Mr. Place for other reasons, the Supreme Court specifically ruled that the sniff by the drug dog did not violate the defendant's constitutional rights. Because a canine sniff does not require luggage to be opened, it is not the same as a police officer rummaging through the private contents of a person's suitcase; items which are not contraband will remain hidden from public view, and only the presence of illegal drugs will be detected.However, once a dog alerts to a package, most courts agree that the alert is at least as reliable as many other sources of information towards establishing probable cause; it is certainly reliable enough to create a fair probability that there is contraband present. In the case of vehicle stops, an alert by a well-trained drug dog is sufficient to justify a search. The use of drug dogs after routine traffic stops has been especially productive. In Whren v. United States (1996), the U.S. Supreme Court ruled that so-called "pretextual" traffic stops do not violate the Fourth Amendment, so long as there is probable cause to believe that even a minor traffic violation has occurred; this is true even though the traffic stop was also made to confirm a hunch that drugs might be present. (See Crime and Punishment, July, 1996). While a motorist is looking for a driver's license and registration documents, and while the officer is awaiting a license status or warrant check, a drug dog and his handler may approach and walk around the vehicle. If the dog detects drug odors coming from the vehicle, that is not a search; the canine sniff is much less intrusive than the officer rummaging through the contents of the vehicle, and its only purpose is to disclose the presence or absence of narcotics. Then, if the dog alerts, the officer has probable cause to conduct a bumper-to-bumper search of the vehicle.Of course, an officer can always ask for the motorist's consent to search the vehicle. While the Ohio Supreme Court once claimed that consent was less than voluntary if it was requested before the end of the traffic stop, the United States Supreme Court, in Ohio v. Robinette (1996), reversed that decision and ruled that a suspect can voluntarily consent to a search without being told that he or she was free to go. (See Crime and Punishment, January, 1997). So even if a drug dog provides probable cause to perform a full search of a vehicle, it never hurts for an officer to ask for consent.A stopped vehicle's passengers may create another issue. In Maryland v. Wilson (1997), the Supreme Court ruled that passengers may be ordered out of a vehicle pending the completion of a traffic stop. (See Crime and Punishment, April, 1997). Removal of the passengers does not affect the dog's opportunity to inspect the vehicle, but using the dog to sniff individual passengers creates additional constitutional issues and should not be attempted.Drug dogs have also become useful in school searches and have been used in the schools of Wayne County. When the dog sniffs student lockers and automobiles parked in the public parking lots, there is no "search" that would be protected under the Fourth Amendment. Once again, however, the use of a dog to sniff individual students can present different problems and should be avoided.In summary, a drug dog has a right to be anywhere his police handler has a right to be. Because some drug dogs receive additional training in crowd handling and officer safety, they can also accompany officers on patrol, including walks through public parking lots. An alert by the dog, even to a vehicle parked in a public place, is sufficient probable cause to justify a search of that vehicle. To paraphrase the old adage: a dog can be a cop's best friend!

Re: drug dogs; probable cause           #2400372 - 03/03/04 08:54 PM

here is a related case, from the North carolina court of  appeals:http://www.aoc.state.nc.us/www/public/coa/opinions/2004/030350-1.htmIn this case, a woman with a prior drug record was pulled over and presented a duplacate license. While her credentials were being checked, a drug dog was run around her car and alerted.Her conviction was overturned on the grounds that the police did not have reasonable suspicion.The US supreme court has ruled that:A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. . . . It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 238 (1983)The US 11th court of appeals has ruled that police may not detain a person until a drug dog arives unless they have reasonable suspicion that a crime has been commited:http://www.ca11.uscourts.gov/opinions/ops/200215183.pdfLong story short, a cop has to have "reasonable suspicion", not probable cause, to run a drug dog around your car, or to detain you beyond the time necessary to "effectuate the purpose of the stop". The time taken to check your credentials can NOT be used to run a drug dog around your car.I don't know about cases of consentual contact: ie. if the cop says "Do you mind if I talk to you for a second" or something equivalant, Just Say No, because you may give up some of your rights.This doesn't deal specifically with drug dogs, but is generally good:http://www.aclu.org/PolicePractices/PolicePractices.cfm?ID=9609&c=25In spite of the above, a police officer may not be aware of recent court rulings, or might not care.Also,I Am Not A Lawyer --------------------This statement is false.

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KENTUCKY CASES DISCUSSING DRUG DOGS

[U] Commonwealth v. Swartz, No. 2002-CA-001564-MR (Ky.App. 05/30/2003)

The facts in the case are not in dispute. Swartz concedes that Trooper Perkins had probable cause to stop her vehicle. In light of the diminished expectation of privacy in a motor vehicle, a motorist legally stopped has become vulnerable to "probable-cause searches" of his vehicle pursuant to the automobile exception to the warrant requirement. Clark v. Commonwealth, Ky., 868 S.W.2d 101, 106-107 (1993); Estep v. Commonwealth, Ky., 663 S.W.2d 213, 215 (1983). In short, as the law has evolved in this area, our expectations of privacy in an automobile have become enormously eroded. Thus, once Maggie indicated the presence of drugs in the vehicle, Officer Perkins was entitled to search the interior without a warrant. Id.; see also, Raglin v. Commonwealth, Ky., 812 S.W.2d 494 (1991). Our only task is to determine whether the trial court erred as a matter of law in concluding that Trooper Perkins lacked the requisite reasonable suspicion to justify his detention of Swartz for the time required for him to walk his trained drug dog around her car.
[24]    The Commonwealth argues that under the totality of circumstances in this case, Trooper Perkins had an objectively reasonable suspicion to detain Swartz. It also contends that the trial court erred in considering the trooper's subjective motives in determining whether he acted pursuant to a reasonable suspicion in detaining Swartz. Alternatively, the Commonwealth maintains that a dog sniff is not a search as contemplated either by the Fourth Amendment to the United States Constitution or by Section Ten of the Kentucky Constitution. Consequently, it argues that if there is probable cause to stop a vehicle initially, an officer is not required to articulate additional facts to illustrate his reasonable suspicion of criminal activity in order to expand the scope of the stop for purposes of a canine sweep of the area.
[25]    Swartz argues that the initial legal stop of her vehicle was transformed into an illegal detention for the purpose of conducting a drug investigation. She argues that the trial court correctly concluded that there was no justification for her detention to allow the canine reconnaissance.
Finally, the Commonwealth points to several cases from other jurisdictions holding that a dog sniff is not a search as contemplated by the constitutional prohibitions against unreasonable searches and seizures. Because we have concluded that Trooper Perkins did have a reasonable suspicion to justify the dog sniff, we need not elaborate upon those cases - especially since the Commonwealth did not raise this alternative basis in the trial court for justifying the search. As it has not been properly preserved for our review, we decline to address this argument

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Raglin v. Commonwealth of Kentucky, 812 S.W.2d 494 (Ky. 05/09/1991)

A We didn't feel like we had enough probable cause at the time though we knew that the drug dog, if he alerted on the vehicle, would establish enough probable cause for us to obtain that search warrant. So really, you're only talking the dog alerted less than five minutes after Mr. Raglin pulled up, but as far as enough probable cause for an affidavit prior to that time, we did not feel we had enough probable cause for that affidavit, so we did not petition any judge.
[30]    If the officers admittedly lacked probable cause before the barking of the drug dog, I believe that their actions invaded the protections set forth in Section 10 of Kentucky's Constitution.*fn2


Just as the police did not have reasonable suspicion before the dog signaled, they did not have probable cause after the bark. There was no reasonable justification for accosting the appellant or for subjecting his auto to a sniff search.*fn4 To say that this search can provide probable cause for an incremental search begs the question, and renders meaningless the guarantees of Section 10. Under the majority rationale, had the police arrived to find the Corvette parked unoccupied, they might properly have taken the dog to the car and, upon a signal, searched the vehicle. Under the same rationale, any individual anonymously traduced may be stopped on the street and, if the dog reacts, searched.

Even assuming that the circumstances did establish probable cause, I cannot agree that the search was proper absent a warrant. There is a tremendous constitutional difference between a search with and a search without a valid warrant. Surely the clause of § 10 prescribing the conditions for the issuance of a search warrant has some meaning. To hold that a search may proceed without a warrant given probable cause would avoid the warrant process, and eviscerate the warrant clause. Read as a whole, § 10 prohibits a search except upon a prior finding by a detached magistrate of probable cause supported by oath or affirmation. Clearly distinguishable, a warrantless search circumvents both the magistrate and the requirement of an oath/affirmation, and invites after-the-fact rationalizing. While exigencies may in some cases justify an exception to the warrant requirement, in the instant case there was nothing (save perhaps mere inconvenience) to prevent the police from suing for a warrant. We ought to demand a demonstration of compelling reasons for proceeding without a warrant, lest for want of vigilance the exception devour the rule.
[34]    By our holding today we take one more step toward an Orwellian society wherein no citizen is secure in her/his person or possessions, and the right to privacy and freedom from unreasonable searches are but haunting bygones.

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[U] Embry v. Commonwealth, No. 2003-CA-001349-MR (Ky.App. 07/02/2004)

That from the initial traffic stop until the drug dog arrived, 44 minutes had elapsed, but that based upon the totality of the circumstances, Deputy Walls did not obtain reasonable suspicion until 15 - 20 minutes after the stop that the defendants were engaged in drug/criminal activity and at that point requested a drug dog to come to the scene which arrived within 15 - 20 minutes thereafter which is not unreasonable under this case scenario.
[25]    6. The Court finds that the detention of the defendants was reasonable and not violative of the Fourth Amendment and once the certified and trained drug dog hit on the automobile, Deputy Walls then had probable cause to search the entire vehicle.

At the outset, we note that we agree with the Commonwealth that there is no question that the initial traffic stop was proper. In the interest of both the public's and Embry's safety, Deputy Walls was required to stop the vehicle to ascertain whether Embry was intoxicated or suffering from a medical problem. Furthermore, once the drug dog indicated the presence of drugs in the vehicle, sufficient probable cause existed to support a warrantless search. However, it is the period of time Embry was detained from Deputy Walls' determination that he was once again safe to drive to the call for the drug dog that is problematic in this case.
[31]    In Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), the United States Supreme Court tested police conduct under the 4th Amendment's proscription against unreasonable searches and seizures that it defined as "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat" which would not be subject to the warrant procedure. An officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 20-21, 20 L.Ed.2d at 905- 06, 88 S.Ct. at 1880. The Terry Court's final holding was as follows:
[32]    [W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him.

If, during a traffic stop, an officer develops a reasonable, articulable suspicion that a vehicle is carrying contraband, he has "justification for a greater intrusion unrelated to the traffic offense." [] [United States v.] Cummins, 920 F.2d [498,] 502 [(8th Cir. 1993)]. We assess the factors on which an officer based his claim of reasonable suspicion as a totality and in light of the officer's experience.
[35]        In United States v. Sharpe, 470 U.S. 675, 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985), the Supreme Court addressed the difference between a de facto arrest and an investigative stop, noting that:
[36]        [O]ur cases impose no rigid time limitation on Terry stops. While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," . . . we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. . . . Much as a "bright line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. (Citations omitted.)
[37]        Sharpe, 470 U.S. at 685, 84 L.Ed.2d at 615, 105 S.Ct. at 1575. As to the determination regarding whether a detention is too long, a court should consider, "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant," and that, "[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." Sharpe, 470 U.S. at 686, 84 L.Ed.2d at 616, 105 S.Ct. at 1575. See also Bloomfield, 40 F.3d at 916-17. The United States Supreme Court has also identified "nervous, evasive behavior" as "a pertinent factor in determining reasonable suspicion." Illinois v. Wardlow, 528 U.S. 119, 124, 145 L.Ed.2d 570, 577, 120 S.Ct. 673, 676 (2000).


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Should the courts apply Daubert Standards to test credibility of Drug Sniffing Dogs?

The U.S. Supreme Court in the Price decision, allowed the use of a drug sniffing dog to provide probable cause for a search warrant.  Numerous cases since that l983 decision has skirted the issue of whether or not there should be a uniform “bright line” standard for a judge to review the credibility of any particular dog.

Who is to say that a particular dog is really providing an honest indication of contraband drugs being present in the item or location being searched?   Any police officer could train his dog to make an indication at will…the dog is rewarded with a treat of some kind when ever he makes a “hit”.  Why wouldn’t the dog be incentivized to make frequent hits in order to get the dog biscuit reward?

It is common for police dog handlers to brag about the per centage of successful hits their dog has made.  But at least one expert has testified in a Kentucky suppression hearing, that the scientific method should be applied to evaluate the ability of any particular dog to successfully “hit” on drugs.   This expert testified that the evaluation of a dog must be tested by a neutral third party, that the test environment must be carefully neutralized so as not to unfairly aid the dog, that the handler should not himself know of the location of the hidden drug target, so as not to consciously or unconsciously assist the dog in making a correct hit.

While many handlers brag about the success rate their dog has experienced, one must consider that in general practice  the drug dog is only summoned when the police officer suspecting drugs being present has called for the dog.  One might suggest that in most occasions that a dog is called it, that there is already a target rich environment, where the presence of drugs is highly possible.  Does this skew the “hit” record of a dog?

Does an independent third party evaluate whether or not a hit was successful?

The Hawaii court stated: (as) ”a constitutional minimum, we will require that the dog and its handlers be fully qualified."

A police officer is required to be certified and licensed before administering a Breathalyzer test, radar test, to conduct a polygraph exam. Anyone drawing blood for a blood test must be certified and licensed, so why not handlers of dogs, and the dog itself?

In U.S. v. Bronstein, the Supreme Court qualified a drug test dog be by a “…sensitive and schooled canine.”

We suggest that such a standard, particularly in light of Daubert may well be necessary.  The test may well be that the dog should be certified as proficient in detecting drugs, and that the handler likewise be certified.  These certifications should be by an independent body and not left to the discretion of the local police agency to declare unilaterally that their dog and its handler is proficient.

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