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The Dog Day Traffic Stop - Basic Canine Search and Seizure

 ©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.


Jail Visits


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.


Conclusion


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.

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