CANINE SEARCHES: GOING TO THE DOGS
Dog sniff from outside a closed apartment to determine contents constituted a search.
U.S. v. Thomas, 757 F.2d 1359 (2d Cir. 1985) [a practice which may be non-intrusive in a public place such as an airport, see U.S. v. Place; becomes much more intrusive when used to “sense” what is inside a closed residence].
See Strout v. State, 688 S.W.2d 188, 191 (Tex.App.–Amarillo 1985) [no expectation of privacy in semi- public area in front of locked safety deposit box, such that sniffing was not a search]. See State v. Hayes 188
S.W.3d 505 (Tenn 2006) [The Fourth Amendment’s prohibition on unreasonable seizures was violated by a police checkpoint program designed to improve the safety at a housing authority apartment complex by stopping pedestrians and motorists on the complex’s privatized streets and asking them to provide their resident identification badges and other documentation. The court decided that the entry identification checkpoint program should be treated like the drug interdiction checkpoint program struck down in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).]
Dog sniff of car exterior that had been lawfully stopped on a reasonable suspicion of carrying drugs did not become unconstitutional when the dog suddenly jumped into the car through the hatchback that had been opened by defendant. U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989) [dog’s “alert” response to a duffle bag inside car was sufficient to give probable cause for warrantless search].
But now a dog sniff occurring during a lawful traffic stop does not exceed any constitutional rights when it reveals possession of a substance that was not a legitimate interest in privacy. See Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834 (2005)
SNIFFING SCHOOL DOGS
Public school officials, employed and paid by the State are “agents of the Government …constrained by the Fourth Amendment”. Horton v. Goose Creek Ind. School Dist., 677 F.2d 471 (5th Cir. 1982). “Sniffing by dogs of the student’s person, particularly where the dogs actually touch the person is a search within the purview of the Fourth Amendment.” Horton v. Goose Creek Ind. School Dist., 677 F.2d at 480.
THE UNTESTED CANINE NOSE
Many of the cases approving the use of drug alerting dogs reflect the training qualifications of the animal in question.
U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); U.S. v. Lewis, 708 F.2d 1078 (6th Cir. 1983);
U.S. v. Robinson, 707 F.2d 811 (4th Cir. 1983); U.S. v. Klein, 626 F.2d 22, 27 (7th Cir. 1980) [“representation to the magistrate that the dog ‘graduated from a training class in drug detection …and ‘has proven reliable in detecting drugs and narcotics on prior occasions”]; U.S. v. Johnson, 660 F.2d 21, 22 (2d Cir. 1981) [“specially trained dog”]; U.S. v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977) [“Chane was a ‘trained, certified marijuana sniffing dog'”]; U.S. v. Goldstein, 635 F.2d 356, 362 (5th Cir. 1981).
In Florida v. Harris, 133 S.Ct. 1050 (2013), the U.S. Supreme Court rejected the lower court’s rigid requirement that police officers show evidence of a dog’s reliability in the field to prove probable cause. A drug- detection dog’s alert to the exterior of a vehicle for can provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle.
In one airport case involving Agent Markoni the court noted that while the particular canine had no formal “drug-sniffing training,” the particular dog “had ‘graduated’ first in his explosive’s sniffing class”. U.S. v. McCraine, 703 F.2d 1213, 1215 (10th Cir.1983).
MARKONI HAS GONE TO THE DOGS
Not to be outdone, Agent Markoni has pitted himself against his canine counterparts. U.S. v. Sentovich, 677 F.2d 834, 835-36 (11th Cir. 1982). “The ubiquitous DEA Agent Paul Markonni once again sticks his nose into the drug trade. This time he is on the scent of appellant Mitchell Sentovich’s drug courier activities. We now learn that among Markoni’s many talents is an olfactory sense we in the past attributed only to canines. Sentovich argues that he should have been able to test, at a magistrate’s hearing on issuance of a search warrant, whether Markoni really is the human bloodhound he claims to be. Sentovich’s claims, however have more bark than bite. In fact, they ‘have not a dog’s chance of success.’ Zeke, Rocky, Bodger and Nebuchadnezzar, and the drug dogs of the southeast, had best beware. Markoni’s sensitive proboscis may soon put them in the dog pound.” U.S. v. Sentovich, 677 F.2d at 835-36.
The Supreme Court has specifically approved the use of sniffing dogs to detect drugs in airline passenger’s luggage.
“We conclude that the particular course of investigation that the agents intended to pursue here– exposure of respondent’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”. U.S. v. Place, 462 U.S. at 707. See U.S. v. Beale, 736 F.2d 1289 (9th Cir. 1984) [en banc] [dog sniff of baggage is not a search within meaning of Fourth Amendment and requires neither reasonable suspicion nor probable cause].