Dog Sniffs of People and the Fourth Amendment

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).