Drug Detection Dogs Legal Considerations.

During the past 20 years, the United States has been fighting one of the most difficult wars in its history: the war on drugs. One of law enforcement's most effective tools in this war has been the drug detection dog. Drug detection dogs have proven highly effective and reliable in detecting illegal narcotics. The Supreme Court and most lower courts have granted particular deference to the olfactory abilities of police drug detection dogs. This article addresses the legal aspects of canine sniffs for controlled substances, including their use in determining probable cause for searches of vehicles, individuals, and premises.

THE COURT'S VIEW

In United States v. Place, [1] the Supreme Court ruled that the exposure of luggage located in a public place to a trained canine "did not constitute a search within the meaning of the Fourth Amendment." Place aroused the suspicions of DEA agents in the Miami International Airport. He was asked for and gave his consent to have his luggage searched. However, fearing that Place would miss his plane and that the DEA would be liable for the cost of the ticket, the agents allowed Place to proceed on his flight without searching his luggage. The agents then telephoned other DEA agents at New York's LaGuardia Airport to pass on their suspicions concerning Place.

Upon his arrival in New York, Place was met by DEA agents who again asked for consent to search his luggage. This time, Place refused to give consent. The agents detained Place's luggage and took it to Kennedy Airport, where a trained drug detection dog sniffed the luggage and "alerted" (indicated the detection of the odor of drugs). Based on the dog's alert, the agents continued to detain the luggage while they sought a search warrant authorizing the search of the luggage. A search warrant for Place's luggage was issued and executed, and a large quantity of drugs was discovered. Place was arrested and later convicted.

The Supreme Court reversed Place's conviction but not on the basis of the dog sniff. The Court ruled that the 90-minute presniff seizure of the luggage was too long to be reasonable. Nonetheless, the Court took great care to clarify that the dog's alert created sufficient reason for further detention of the luggage, as well as the requisite probable cause necessary for the issuance of a search warrant for drugs.

The Court explained that the dog's sniff is nonintrusive and reveals only the presence of contraband, an item for which a person does not have a reasonable expectation of privacy. Moreover, Place was not required to open his luggage and expose his personal items to public view, thereby avoiding the embarrassment and inconvenience entailed in a typical search.

PROBABLE CAUSE

In United States v. GonzalezAcosta, [2] the U.S. Court of Appeals for the Tenth Circuit refused to authorize extensive defense requests for a drug detection dog's training records, veterinary records, alert reports, and other miscellaneous documents. The court allowed the defense to review only limited training records, stating: "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, the defendant's ability to cross-examine would not have been enhanced because there is no doubt it correctly alerted in this instance." [3]

A dog's positive alert alone generally constitutes probable cause to search a vehicle under the motor vehicle exception to the search warrant requirement. [4] However, courts still confront challenges to dog sniffs based on their reliability. Courts that have considered the question of canine reliability have relied heavily on the dog's certification. [5] As the case above shows, the fact that the dog correctly alerted adds significantly to the dog's credibility in establishing probable cause.

TRAFFIC STOPS

In United States v. Navarro, [6] a deputy stopped a sports utility vehicle for speeding. As the officer spoke with the driver, he became suspicious of drug activity. A backup officer teamed with a drug detection dog arrived. As the first officer talked to the driver, the canine handler positioned the dog to sniff the vehicle. The dog alerted on the driver's door. The deputies found five kilos of cocaine in a duffle bag on the front seat of the vehicle. The defendant later challenged the stop as pretextual because the detention that allowed for the arrival and use of a drug detection dog was unconstitutional.

The U.S. Court of Appeals for the Sixth Circuit did not agree with the defendant's claim that his constitutional rights had been violated. The officers in this case had received a tip earlier in the day concerning Navarro's possible possession of contraband, and the likelihood that a sports utility vehicle might be used to transport the contraband.

Pretext Stops

The Supreme Court's ruling in Whren v. United States [7] that pretextual traffic stops do not violate the Fourth Amendment creates an extremely productive opportunity for traffic stops to become sniff stops, as well. Drug detection dogs can be used on routine traffic patrol in high drug areas to sniff cars stopped for traffic violations.

In Romo v. Champion, [8] the United States Court of Appeals for the Tenth Circuit 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." [9] 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, wait for a computer check, or simply to give a warning, the exterior of the vehicle is available for a sniff. The Romo court held that if a vehicle is otherwise lawfully detained, consent is not required for a canine sniff, even absent any reasonable suspicion.

Scope of the Sniff

The scope of the sniff is limited to the outside of the vehicle. An officer "may not unlawfully enter an area in order to conduct a dog search.... The warrantless search of a car interior is unlawful unless there is probable cause to believe that it contains contraband." [10] In Navarro, the interior sniff of the vehicle was supported by probable cause, because the dog had alerted immediately outside the driver's side door, indicating narcotics inside the car.

Detention of the vehicle beyond the brief time needed to issue a citation or warning requires reasonable suspicion of illegal activity. [11] Once drivers produce a valid license and proof that they are entitled to operate the car, they must be allowed to proceed on their way, without being subject to delay by police for further questioning. [12] "Any further detention for questioning, not for issuing a citation, is beyond the scope of the stop and, therefore, is illegal unless the officer has a reasonable suspicion of unlawful activity." [13]

If an officer's suspicions are aroused during the course of a traffic stop where a drug detection dog is not present and the officer can articulate reasonable suspicion of drug activity, the officer may detain the vehicle for a reasonable length of time to allow for the arrival of a drug detection dog.'4 It is recommended that if there is no reasonable suspicion to detain occupants in the vehicle, they should be permitted to leave and told how they can arrange to claim the vehicle later, if appropriate.

Consent Sniffs

When officers lack reasonable suspicion of drug activity to justify a detention, they may ask drivers for consent, either to search their vehicles or to call for a canine. Further investigation is allowed if the "encounter has turned from detention into a consensual encounter." [15]

Consent may be sought even if there appears to be sufficient reasonable suspicion to detain vehicles. Voluntary consent will alleviate any concerns as to the reasonableness of the detention because if drivers consent to the use of a dog, they presumably have consented to the necessary detention until the dog arrives. [16] However, officers should remember that drivers may withdraw consent at any time.

Length of Detention

What length of a detention is constitutionally "reasonable" when officers decide to detain a vehicle for a sniff without seeking consent? Generally speaking, the court accepts brief detentions. [17] More lengthy detentions require further justification.

For example, a delay of 50 minutes from the time of the stop to the arrival of the drug detection dog was reasonable in State v. Welch. [18] The court noted that the stop occurred 31 miles away from the nearest available canine. In United States v. $64,765.00, [19] the court determined that a 90-minute detention was supported by reasonable suspicion when the officer acted with due diligence to get the dog to the scene. An officer's diligence in getting a dog to the scene plays a major role in determining whether the length of the detention is reasonable.

DOG SNIFFS AND INDIVIDUALS

No recent line of cases directly involves the use of drug detection dogs on people in public places. Individuals have an extremely high expectation of personnal privacy regarding their own bodies. The use of a dog to detect drugs directly on individuals not only may be considered an intrusion upon their privacy but an affront to their dignity, as well.

The Supreme Court ruled in Pennsylvania v. Mimms [20] that an officer, for safety reasons, has the authority to direct drivers to exit their vehicles during traffic stops. The Court extended this rule to include passengers in Maryland v. Wilson. [21] However, the authority to direct people from vehicles automatically does not allow these individuals to become the subject of a dog sniff. Officers at least should be able to articulate a reasonable suspicion of drug activity in regard to each individual that they subject to a dog sniff.

The U.S. Court of Appeals for the Tenth Circuit dealt with the question of vehicle and body searches in a case involving jail security. In Romo v. Champion, [22] the 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." [23] However, the plaintiffs' expectations of privacy in this case were reduced because they were visiting a correctional facility. The court reasoned that the requirement of reasonable suspicion to justify the search was not necessary due to the government's need to provide security and ensure that no contraband entered the facility. The court also said that the physical contact between the dog and the groin area of one of the individuals sniffed was not enough to make the sniff unreasonable under the Fourth Amendment.

DOG SNIFFS AND PREMISES

One court has considered the legal implications in regard to dog sniffs of premises. The expectation of privacy in regard to premises is similar to that of individuals' expectations of privacy in their bodies.

In United States v. Roby, [24] the Eighth Circuit Court of Appeals allowed the use of a drug detection dog to sniff a hallway of a motel where a suspected narcotics dealer was staying. The police walked the dog through a hallway where they suspected the dealer's room to be located. When the dog alerted on a door, a search warrant was issued for the motel room based on the dog's alert. Ten kilos of cocaine were discovered in the room and the defendant was convicted of possession with intent to distribute. He appealed, claiming his expectation of privacy in his room had been violated by the dog sniff. The court found that because no expectation of privacy exists in common areas, such as motel hallways, no search occurred.

The critical issue always has been whether individuals have a legitimate expectation of privacy in an area, including their own bodies. 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 has a right to be at the place of observation, but the area of privacy can extend beyond the physical being and envelop a space surrounding them. To encroach on this space, an officer must have a legitimate reason that appears to be at least articulable reasonable suspicion of drug possession.

CONCLUSION

Drug detection dogs remain extremely important in drug interdiction. They represent a highly efficient and cost-effective way to establish quickly whether probable cause exists to execute a search for contraband. The use of drug detection dogs has met with few real legal challenges in the courts. The only notable area that has been challenged is a dog's reliability.

Drug detection dog handlers should be prepared to establish a dog's reliability by providing prosecutors with the following:

* verification that the dog was trained to detect the odors for particular drugs;

* the dog's success rate;

* the method used to train the dog to indicate an alert;

* a statement showing that the dog alerted in the proper fashion;

* proof of the dog's certification; and

* proof that the dog has continued to meet certification requirements and receive necessary training on a regular basis.

Keeping and maintaining proper records pertaining to the dog and its handler is essential.

A search warrant should be sought whenever possible. This holds true even when a warrant would not be necessary, such as under the motor vehicle exception to the Fourth Amendment search warrant requirement. The advantage to having a warrant is that the magistrate's determination of probable cause is given more deference than the officer's. This leaves the defense with one less area to challenge.

Endnotes

(1.) United States v. Place, 462 U.S. 696 (1983).

(2.) United States v. Gonzalez-Acosta, 989 F.2d 384 (10th Cir. 1993).

(3.) Id. at 389.

(4.) United States v. Levine, 80 F.3d 129, 133 (5th Cir.), cert. denied, 117 S. Ct. 83 (1996); United States v. Williams, 69 F.3d 27, 28 (5th Cir.) (citing controlling Fifth Circuit precedent recognizing that a dog alert constitutes probable cause), cert. denied, 116 S. Ct. 1284 (1996); United States v. Glover, 957 F.2d 1004, 1013 (2d Cir. 1992) (stating that an alert by a drug detection dog constituted probable cause for a search warrant); United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir. 1990) ("We need not reach the issue of consent because probable cause to search was supplied when the dog alerted to the vehicles."); United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir. 1990) (holding that a dog sniff is not a search at a border checkpoint).

(5.) United States v. Delaney, 52 F.3d 182, 188 (8th Cir. 1995); United States v. Wood, 915 F. Supp. 1126, 1135-36 (D. Kan. 1996); Commonwealth v. Schickler, 679 A.2d 1291 (Pa. Super. 1996); State v. Gross, 789 P.2d 317, 319 (Wash. App. 1990).

(6.) United States v. Navarro, 186 F.3d 701 (6th Cir, 1999).

(7.) Whren v. United States, 116 S. Ct. 1769 (1996).

(8.) Romo v. Champion, 46 F.3d 1013 (10th Cir. 1995), cert. denied, 116 S. Ct. 387 (1995).

(9.) Id. at 1018.

(10.) United States v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir. 1994).

(11.) United States v. Erwin, 155 F.3d 818, 822 (6th Cir, 1998) (en bane), cert. denied, 119 S. Ct. 906 (1996), United States v. Walker, 933 F.2d 812, 816 (10th Cir. 1991) (inquiry into matters unrelated to the traffic stop after the officer issued the citation and while the officer held the citation and the driver's license constituted unlawful detention), cert. denied, 502 U.S. 1093 (1992).

(12.) United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990), cert. denied, 501 U.S. 1207 (1991).

(13.) United States v. Dewitt, 946 F.2d 1497, 1501 (10th Cir. 1991), cert. denied, 502 U.S. 1118 (1992).

(14.) United States v. McFarley, 991 F.2d 1188, 1193 (4th Cir.), cert. denied, 510 U.S. 949 (1993); United States v. Hardy, 855 F.2d 753, 761 (11th Cir.), cert. denied, 489 U.S. 1019 (1988).

(15.) Dewitt, 946 F.2d at 1502. The officer is not required to advise motorists that a traffic stop is over and that they are free to leave prior to requesting permission to search. Ohio v. Robinette, 117 S. Ct. 417 (1996).

(16.) United States v. Chivara, 9 F.3d 888, 890 n.1 (10th Cir. 1993).

(17.) McFarley, 991 F.2d at 1194 (38-minute wait reasonable); United States v. $67, 765.00, 786 F. Supp 906 (D.Oregon 1991)(30-minute detention typical).

(18.) State v. Welch, 873 P.2d 601, 605 (Wyo. 1994).

(19.) United States v. $64, 765.00, 786 F. Supp. 906, 912 (D. Or. 1991).

(20.) Pennsylvania v. Mimms, 434 U.S. 106 (1977).

(21.) Maryland v. Wilson, 117 S. Ct. 882 (1997).

(22.) Romo v. Champion, 46 F.3d 1013 (10th Cir. 1995).

(23.) Id. at 1018.

(24.) United States v. Roby, 120 F.3d 1120 (8th Cir. 1997).