Dog Sniffs of People and the Fourth Amendment

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Last week, I wrote about the North Carolina Court of Appeals’ holding in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120 (2012), that a drug dog’s positive alert to a motor vehicle in which no drugs were found did not, by itself, provide probable cause to search the person of a recent passenger in the vehicle.  A couple of folks have inquired post-Smith about whether the police can search an individual if a dog alerts to the person as opposed to a car in which the individual recently has been traveling. Smith does not address this issue, but other courts have and I thought it was sufficiently interesting to warrant a follow-up post.

First, a brief re-cap of the status of dog sniffs under the Fourth Amendment:  The United States Supreme Court held in Illinois v. Caballes, 543 U.S. 405 (2005), that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment. Caballes relied in part on the high court’s determination in United States v. Place, 462 U.S. 696 (1983), that a canine sniff of luggage in an airport by a well-trained dog was not a search within the meaning of the Fourth Amendment and its application in City of Indianapolis v. Edmond, 531 U.S. 32 (2000) of that principle from Place to exterior sniffs of cars by drug dogs. The Caballes Court, like the Court in Place and Edmond, reasoned that properly conducted drug dog sniffs are designed to reveal only the presence of contraband.  Given that a person has no legitimate interest in possessing contraband, neither the dog’s sniffing of the car nor its subsequent alert compromises a constitutionally protected privacy interest. Thus, police may conduct such searches without the requirement of individualized suspicion.

To anyone who shares my healthy respect (read: fear) of the types of dogs employed by police to detect narcotics, it probably seems a forgone conclusion that a different analysis applies to a dog’s search of a person, which is far more intrusive (read: frightening) than a dog’s sniffing of an object. In the words of one of my former law professors, Arnold Loewy, “the very act of being subjected to a body sniff by a German Shepherd may be offensive at best or harrowing at worst to the innocent sniffee.” Arnold H. Loewy, The Fourth Amendment As A Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1246-47 (1983). Indeed, in certain circumstances, courts have considered such person-sniffs to be Fourth Amendment searches.  In United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), for example, the Fifth Circuit held that the canine sniff of the defendant, which included the dog touching the defendant’s groin area, on the pedestrian walkway of the bridge connecting Laredo, Texas to Nuevo Laredo, Mexico, was a search under the Fourth Amendment.  Because, however, the canine sniff amounted to a routine border search that did not “‘seriously invade the traveler’s privacy,’” the court determined that no individualized suspicion was required before the dog lawfully could sniff a person crossing the bridge.  The Fifth Circuit likewise concluded in Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 476 (5th Cir. 1982), that drug dogs’ sniffing of children in a school, as part of an effort to prevent the abuse of drugs and alcohol, was a Fourth Amendment search that required individualized reasonable suspicion. The dogs in Horton—Doberman Pinschers and German Shepherds—walked down the aisles of classrooms and sniffed students, putting their noses against the people they were investigating.

In contrast, the Fifth Circuit determined in United States v. Reyes, 349 F.3d 219 (2003), that an unintentional non-contact sniff by a dog that was four feet away from the person when he alerted was not a search within the meaning of the Fourth Amendment.  The dog in Reyes alerted as the defendant departed a bus that the officer intended to search once the passengers were off. The court reasoned that because the dog was not in close proximity to the defendant when he alerted, the sniff was minimally intrusive and thus not constitutionally cognizable.

Dog sniffs of people that amount to Fourth Amendment searches and are supported by individualized suspicion or otherwise qualify under an exception for warrantless searches not supported by particularized suspicion still must be carried out in a reasonable manner.  See, e.g., Schmerber v. California, 384 U.S. 757, 771 (1966) (evaluating whether blood test permitted under exception to warrant requirement was performed in a reasonable manner); see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard). The manner in which the dog alerts unquestionably plays a role in the reasonableness analysis.  The search by the dog in Kelly, which the Fifth Circuit deemed a routine border search, was performed by a “‘passive alert’” dog that was trained to sit down or exhibit some other change in behavior when alerting as opposed to scratching or biting at the area of the contraband. The dog sniff in Reyes, which the Fourth Circuit did not consider a Fourth Amendment search, was followed by a more aggressive alert, in which the dog pulled on his leash so as to follow the defendant while barking at him. I am doubtful that a dog alert that involved scratching or biting a suspect would be deemed reasonable under the Fourth Amendment.

North Carolina dog-handlers and criminal law aficionados, write in and let us know whether dogs in this state are trained and employed to sniff people, how they alert, what policies govern this practice, and how our trial courts have analyzed such searches.  Dog lovers, before you send in your comments defending the breeds mentioned in this post, I’ll note that after reading Susan Orlean’s recent book, Rin Tin Tin: The Life and the Legend, German Shepherds are slightly less scary to me (at least on paper).

6 comments on “Dog Sniffs of People and the Fourth Amendment

  1. With the undeniable fact established that dog handlers can and do falsely alert, causing the dog to sit or otherwise ‘ alert’ at the whim of the cop, the laws mean essentially nothing. Dogs are trained and eager to please the handler, and recent tests done prove that the dogs react to subtle and non-visual reactions of the handler in order to get his reward. In a scientific test, dog handlers were exposed to a number of boxes, none of which contained contraband, but several boxes had red labels which the handlers assumed were the loaded boxes. A majority of the dogs alerted to the marked boxes because of subtle changes in the handlers demeanor, voice, etc. that made the dog believe that they should alert. When a different handler did the same test, the dogs reacted far differently, proving that very subtle changes in the handlers demeanor encouraged the dogs to alert.

    Cops of course claim that the dogs are perfect, never wrong, and that all persons alerted to must have previously had contraband, which is total nonsense. Also, because cops hate for citizens to exercise their rights to refuse consent requests, many simply cause the dog to alert or claim it did so they have the Pc they so desperately want. I imagine the founding fathers are spinning in their graves at the thought of a dog completely bypassing the warrant requirement, especially at the hands of cops, who care only about gaining access they would otherwise have no legal right to so the fishing expedition for contraband can continue unabated.

    Since cops cannot be trusted to respect and uphole the intent and letter of the law, allowing them to coerce alerts from their eager to please dogs in a nightmare for civl rights. Cops are always looking for ways to circumvent the boundaries placed by the laws, and dogs are the perfect solution…if someone denies permission to search, simply influence the dog to alert, which of course is ususlaly done just out of dash cam sight, and claim PC.

    Constitutional rights to a cop are nothing more than a nuisance to be gotten around, which explains the mistrust and hatred so apparent these days. Cops cannot be trusted, and no one should ever under any circumstance give consent to a search…that may not matter when the cops are unscrupulous, but to cave in and allow suspicionless searches tolls a death knell for what few shreds of liberty we may still cling to. Dog alerts are no more accurate than the handler wants them to be, and that is fact. God help us all.

  2. “Given that a person has no legitimate interest in possessing contraband, neither the dog’s sniffing of the car nor its subsequent alert compromises a constitutionally protected privacy interest.”

    To paraphrase:

    Because you don’t have any reason to have these items, you have no reason not to be searched for them.

    Hmmm. Anyone else spot a problem here? Nope… just go back to discussing about how dogs are “harrowing”, ma’am. Nothing to see here.

  3. Richie Rich, you must be a lawyer. Is this what this country has come to, that ALL “cops” are bad or dirty. I love how you speak of fact, (Dog alerts are no more accurate than the handler wants them to be, and that is fact.) with all certainty. It just goes to show your ignorance. But, I guess ignorance is bliss, isn’t it?

    I will agree that there is a small number of “cops” that don’t play by the rules, and those should be removed from the profession. The “cops” have to deal with an ever changing process, with the facts and circumstances happening in front of them at the speed of NOW, and make decisions based on their training and experience. Others, like yourself, have days, months and even years to second guess decisions make in an instant.

    The dog handlers I know work hard to train their dogs, train hours and hours that they do not get paid, in order to have the best dog possible. Sure, there are some out there that may not play by the rules, but the vast majority of them do, and they should be respected for it.

    I guess we should hold all lawyers accountable for the ones that bend, twist and try to re-write the law, ambulance chasing, steal from old ladies get disbarred ect. But that would not be fair would it???

    • Bruh it has nothing to do with bad or good cops. Unfortunately dogs are mans best friend and they love making their owners happy. We all have expressions, sometimes we don’t even notice what expression we might have but these dogs can pick them up. They are smart animals.

      So if the dog thinks their handler wants it to be positive, they’ll give the false positive. They did a whole study on it and the woman who did the study called it career ruining. Sadly I can’t give you her name but Google does wonders with such small information.

  4. I am aware this is an old post, but hoping someone more knowledgeable than I can shed some light on question. If a drug dog alerts on a car, while the occupants are sitting away from the car, does that alert on the car give PC for the occupants to be searched as well?

    • This will all depend on what your prosecutors office agrees with. Some states and counties allow a search of a person after an “alert” has established probable cause to search a vehicle. Some leave the occupants in the vehicle during a free air sniff and if the dog alerts on the vehicle, the officer can then search the occupants for drugs. I always remove occupants prior to a free air sniff (Pennsylvania v Mimms and Maryland v Wilson)…but I do not search the persons after an alert because my county says NO!

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