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.
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.
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.
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 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.'
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.
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.