©Ken Wallentine - Judge Advocate
"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. This article is intended to introduce street officers to the legal benefits of canine sniffs for controlled substances and to establish a basic knowledge of when a drug detection dog may be used.
Probable Cause on a Silver Platter
In United States v. Place, a 1983 Supreme Court decision, the Court ruled that exposure of luggage located in a public place "did not constitute a search within the meaning of the Fourth Amendment." In Place, the defendant aroused the suspicions of DEA agents in the Miami International Airport. They conducted a brief investigation and examined Place's airline ticket and drivers license. Although Place consented to a search of his luggage, the agents declined 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 Place. Once Place arrived in New York, he was met by DEA agents who again asked consent to search his luggage. This time, however, Place refused to consent. The agents then detained Place's luggage and took the luggage to the Kennedy Airport where a trained drug detection dog sniffed the luggage and gave an alert. "Alert" is the term which describes the dog's behavior when the dog detects the odor of drugs which it is trained to identify. Based on the dog's alert, the agents continued to detain the luggage. Place had not been detained. A federal judge issued a search warrant for Place's luggage. A large quantity of drugs was found, and Place was later arrested. Ultimately, the Supreme court reversed Place's conviction, but not on the basis of the search. The Court ruled that the pre-sniff seizure of the luggage was too long (ninety minutes) to be reasonable. The Court was also troubled by the fact that the agents had not told Place where his luggage was being taken, how long it would be detained, and how he would be able to retrieve it. Nonetheless, the Court took great pains to clarify that the dog's alert created sufficient reason for further detention of the luggage.
Once the dog alerted on the luggage, there was probable cause to search the luggage. The Fourth Amendment requires both probable cause and a search warrant -- or an exception to the warrant clause -- 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
The Court also ruled that the dog's sniff of the luggage did not amount to a search. Canine sniffs are not intrusive. Place was not required to open his luggage and expose his personal items to public view. The dog's sniff would only reveal the presence of contraband (presumably the dog would not have alerted on even a full case of dog biscuits). The Court has also ruled that one cannot have a reasonable expectation of privacy in contraband, in United Stated v. Jacobson. The Place Court ruled:
A canine sniff by a 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. 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. The Tenth Circuit Court of Appeals, the federal appeals court with jurisdiction over Utah, has stated: "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. Some courts have required independent reasonable suspicion of drug activity, in addition to the alert, to establish probable cause. However, this has not been the rule in Utah's state and federal courts. In another decision the Tenth Circuit court ruled 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.
To Sniff or Not to Sniff, That Is the Question
Although drug detection dogs are frequently used at airports, bus terminals and train stations, in Utah most drug detection dogs are assigned to patrol duty. A police canine can be trained in both handler protection and crowd control, as well as narcotics detection. The most typical duty for a drug detection dog in Utah involves a sniff of a vehicle stopped for traffic violations, at a road block, or parked in a public parking area.
Stops for traffic violations may lead to a sniff conducted during "free time." Just as a sniff of luggage in a public place is not a Fourth Amendment search, the sniff of the exterior of a vehicle lawfully detained is not a search. In Romo v. Champion, the Tenth Circuit Court of Appeals ruled that "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." Thus, 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. The Tenth Circuit has held that 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. You may even ask the occupants to get out of the vehicle while the sniff is conducted.
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 these is probable cause to believe that it contains contraband." United States v. Sukiz-Grado. The court went on to note that the interior sniff of the car was supported by probable cause, because the dog had alerted immediately outside the rear driver's side door, indicating narcotics inside the car. Don't get ahead of yourself -- remember the warrant requirement, discussed below.
Detention of the vehicle beyond this brief time needed to issue a citation or warning requires reasonable suspicion of illegal activity. "Once the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to delay by police for further questioning." United States v. Walker. "Any further detention for questioning [not for issuing a citation] is beyond the scope of the Terry stop and therefore is illegal unless the officer has a reasonable suspicion of unlawful activity." United States v. Dewitt.
From Free Time to Detention
If your suspicions are aroused during the course of a traffic stop and you can articulate reasonable suspicion of drug activity, you may detain the vehicle for the arrival of a drug detection dog. Just what constitutes reasonable suspicion is beyond the scope of this article, however, reasonable suspicion is a much lower standard than probable cause. The Supreme Court has defined reasonable suspicion as a "level of suspicion considerably less that proof of wrongdoing by a preponderance (a "more likely than not" standard) of the evidence. . . . The level of suspicion required for a Terry stop is obviously less demanding than that for probable cause." United States v. Sokolow. Reasonable suspicion requires nothing more than particular facts, coupled with reasonable inferences drawn from those facts, that create a suspicion of criminal activity. You must form individual reasonable suspicion to detain the driver and any passengers, separate from the reasonable suspicion to detain the vehicle. If you cannot detain the occupants, tell them that they are free to leave, and make arrangements for them to later claim the vehicle, if appropriate.
Don't forget about asking for consent, either to search or to call for a canine. Further investigation is allowed if the "encounter has turned from detention into a consensual encounter. This occurs when a reasonable person . . . would feel free to leave." United States v. Dewitt. You may want to ask for consent even if you believe that you have sufficient reasonable suspicion to detain the vehicle. The defense may later claim that the reasonable suspicion was not truly "reasonable" and try to invalidate the detention. Voluntary consent will defeat this claim. If the driver consents to a sniff, the driver has also consented to the necessary detention while the drug detection dog arrives, according to United States v. Chivara, a recent decision by the Tenth Circuit Court of Appeals.
Once you decide to detain the vehicle for a sniff, how long is constitutionally "reasonable" to wait for a drug detection dog? In Place, the Supreme Court rejected a ninety minute wait, although the court had other significant concerns about the method of detention. Courts routinely approve detentions of twenty to thirty minutes. However, in rural Utah, 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. In State v. Welch, the 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. In United States v. Hardy, the 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. Several courts have approved of 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 there as soon as practical.
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, you must consider whether a warrant is required to search the vehicle. The automobile search exception to the Fourth Amendment warrant clause, known as the Carroll doctrine, may eliminate the need for a warrant. The automobile exception provides that you may search the vehicle without a warrant simply upon probable cause, even if the vehicle is in police custody. Losing the mobility (exigency) of the vehicle by towing or some other means does not destroy the validity of the search. An auto exception search extends to the trunk and containers. 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. It also applies to trailers towed behind vehicles.
Although the United States Supreme Court reaffirmed the automobile exception in the recent case of California v. Acevedo, some members of the Utah Supreme Court appear to be grasping to hold on to a pre-Acevedo decision in State v. Larocco. In Larocco, the court rejected a warrantless search of a VIN number on a parked car. The court noted that there had never been any exigency concerns and that police had adequate time to secure a warrant. However, the Larocco decision was a plurality, that is to say that it is not binding precedent for trial courts. A Utah Supreme Court decision, State v. Anderson, just released this past month, continues the debate. For now, the law in Utah concerning the automobile exception follows federal law: Probable cause and some exigent circumstances are required for the warrantless search of a vehicle. Exigent circumstances exist when the vehicle is movable, the occupants are aware of the investigation, officer safety is implicated, or when the evidence would likely be lost if the time is taken to obtain a warrant. Once exigent circumstances exist, the automobile exception applies, even though the exigency may pass.
Even though the automobile exception may allow a warrantless search, consider a warrant. Why use a warrant? A search for drugs conducted pursuant to a warrant allows you tremendous freedom to slowly and meticulously search. If you are searching pursuant to consent, the driver may withdraw consent when he sees you 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 entirely, unquestionably, incontrovertibly legal, and that the officers made no legal errors.
Battling the Defense
Whether the search is by warrant or under the automobile exception, a suppression motion is likely to follow. One common area for attack against searches based on drug detection dog sniffs is the adequacy of probable cause. While the dog's positive alert can alone constitute probable cause to search, the defense will attack the reliability of the particular dog. Most courts which have considered questions of canine reliability have relied heavily on the dog's certification. There are several certification programs available, including an official Utah POST drug detection certification. 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. For example, in United States v. Gonzalez- Acosta, the Tenth Circuit Court of Appeals refused to authorize extensive defense requests for the dogs inservice training records, veterinary records, alert reports and other miscellaneous documents. The court stated: "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." The court only allowed the defense to review limited training records.
At a minimum, when opposing a suppression motion attacking the dog's reliability, 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. State v. Pellicci. Most canine handlers are equally, if not more, versed in establishing reliability for purposes of a Fourth Amendment challenge than are their prosecutors. It all depends on the adequacy of record-keeping. Many agencies with canine programs use the KATS computer program. The KATS system is a menu-driven, point-and-click, reporting software package, adaptable for single dog handler teams or a large agency canine program. The program is extremely easy to use and it produces superb documents and charts which are suitable for court room use.
Back to School
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. The Tenth Circuit has expressly authorized drug detection dog sniffs of student lockers. United States v. Venema.
The situation changes when the principal invites the dog handler to deploy the drug detection dog to sniff students. "The use of the dogs to sniff the students . . . presents an entirely different problem." Horton v. Goose Creek Independent School District. However, at least one court disagrees, and has approved random, widespread sniffs of the student body. Doe v. Renfrow. For now, the wiser course appears to be to refrain from canine sniffs of students.
Although most courts frown on canine sniffs of persons, the Tenth Circuit has approved the limited use of drug detection dogs to sniff prospective visitors at correctional facilities. Obviously, such sniffs could not be conducted with aggressive-alert dogs, which announce the presence of the odor of narcotics by biting and scratching. County attorneys may have heartburn over the potential liability. However, in a recent decision, Romo v. Champion, the Tenth Circuit court stated:
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. To the extent that the dog's nose physically touched the plaintiff, that contact was purely incidental. Such a brief, unintentional touch cannot make an otherwise reasonable search unconstitutional.
Sniffing for Dollars
Even though civil forfeiture laws are under attack in most quarters, including in the Utah appellate courts, conscientious officers and prosecutors are still trying to take away money from drug dealers. One of the key elements of forfeiting cash is to show a connection to illegal activity. Positive alerts 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. However, with the pervasiveness of the drug trade, some experts claim that up to ninety per cent of currency in certain areas --Los Angeles, for example-- are tainted by drug odors. A controlled sniff is still helpful when seeking to forfeit currency.
A Stroll Through the Park
A drug detection dog has a legal right to be wherever his police handler has a right to be. That includes public parks and parking lots. In United States v. Ludwig, an officer took his drug detection dog for a walk through a motel parking lot. The lot was not fenced or posted with any signs restricting entry. The officer had no particular target in mind when he walked the dog through the parking lot. Upon passing Ludwig's car, the dog alerted to the odors of controlled substances. The officers watched the car until Ludwig approached. When he did, they asked consent to search, and Ludwig refused. Using the automobile exception, the officers searched the car and found a large amount of marijuana in the trunk. The court approved the stroll through the parking lot since it was property generally open to the public.
Courts have also upheld sniffs of train aisles, storage units, rental lockers and vehicles at driver license/insurance inspection roadblocks. The critical issue has always been whether a person has a legitimate expectation of privacy in an area. Remember that the Supreme Court has found that there can be no legitimate expectation of privacy in the odors emanating from an area. The legitimate expectation of privacy is measured in large part by whether the officer had a right to be at the place of observation.
Through Rain or Hail or Sleet or Snow
The Post Office delivers, as does UPS, Federal Express and a host of other delivery services. Sometimes the package contents are none too innocent. Most of the large delivery services and air lines, as well as the Post Office, train their employees in recognizing possible drug packages. Police officers can, and should, respond positively to invitations from common carriers to subject packages to sniffs. United States v. Riley. Police responding to a call from Northwest Airlines about a suspicious package deployed a drug detection dog in a room with fifteen to twenty other packages. As the dog sniffed through the packages, he immediately tore open the suspect package upon sniffing it. White powder, which field-tested positive for cocaine, spilled out. Based on this information, the officers obtained a warrant and executed a controlled delivery. After his conviction, the defendant argued that the dog's act of tearing open the package and exposing its contents was a search. The court disagreed. Quoting the Tenth Circuit's decision in United States v. Stone, the court noted that "the dog's instinctive actions did not violate the Fourth Amendment." United States v. Lyons.
The value of a drug detection dog as a partner was evident in one recently prosecuted case. A patrol officer had stopped a vehicle on a traffic violation. As the officer spoke with the driver, he became suspicious of drug activity. His suspicions were based primarily on his sixth sense, the ability to discern that all good street officers develop. A back up officer teamed with a drug detection dog arrived. As the first officer talked to the driver and obtained consent to search, the canine handler prepared his dog for a sniff. The dog sniffed the car and alerted on the passenger door. Naturally, the officers found controlled substances inside the car. The defendant later challenged the voluntariness of consent, and convinced the court that the consent was invalid. However, when the judge heard that there had been a contemporaneous sniff, with a positive alert, the court quickly moved away from the fatal consent issue. The judge asked the defense attorney: "Just how much do you want to talk about the dog issue? I've heard it all before and I am convinced that this search was lawful based on an alert by a properly trained and certified dog." A quick conviction followed, in a case where the prosecutor and officers believed that there was a valid consent, but the court disagreed and the case would otherwise have been lost.
Agencies without drug detection dogs available, either in their own department or cooperating agencies, should seriously consider the tremendous search and seizure advantages of drug detection dogs. Departments should also explore the parallel advantages in officer protection, jail control, riot suppression and effective public relations. Canine search and seizure is one of the few areas where defense lawyers have been remarkably unsuccessful in attacking police practices in their never-ending effort to quash drug interdiction efforts.
This article is intended to provide a basic understanding of canine search and seizure law in state and federal courts. For specific questions, officers should contact their agency counsel. Prosecutors and officers facing legal challenges to canine sniffs are welcome to contact Ken Wallentine.