PEOPLE SEARCHES

PEOPLE SNIFFS:

Summary:

The courts are divided on this issue. The majority of the courts have ruled that a canine sniff of a person is a search.

Post September 11, 2001, there has been an increase of consent sniffs of people. These consent sniffs are either actual consent or implied consent sniffs. As examples, ticketing in public travel venues normally has an implied consent in the ticketing, stating that the passenger is subject to search, etc. Other implied consent sniffs are established by signing on property boundaries, such as all people entering are subject to search, etc. There has been dramatic increase in actual consent and implied consent people sniffs in airports, train depots, bus depots, mass transit stations, sporting events, concerts, shows, jails, prisons, government and private properties, etc.

A) Doe v Renfrow (631 F. 2d 91 (1980) Seventh Circuit

The Seventh Circuit ruled that walking up aisles and sniffing by a narcotic detector dog did not violate student’s rights. A dog sniff of students is not a search.

B) Horton v Goose Creek Independent School District (690 F. 2d 470 (1982) Fifth Circuit

The Fifth Circuit ruled that dog’s sniffing of students’ person was a search under the Fourth Amendment. Canine searches of students’ persons could not be justified without reasonable suspicion.

C) B.C. v Plumas Unified School District (192 F. 3d 1260 (1999) Ninth Circuit

The Ninth Circuit agreed with the Fifth Circuit. A dog sniff of a person infringes on a reasonable expectation of privacy and it constitutes a search. A random and suspicionless dog sniff search of a person is unreasonable.

D) United States v Nunez (19 F. 3d 719 (1994) First Circuit

A pat-down search by officers at an airport revealed packages located on the suspect’s midsection. A drug detection dog was requested for a sniff test of a person.

The only dog available at the airport was an “aggressive” alert dog. Since this was too dangerous on a person, a “passive” alert dog was requested. During the one hour it took for the dog to arrive, the suspect abandoned the drugs and he was arrested. The dog was used to search the person and alerted to the suspect’s midsection.

E) United States v Kelly (302 F. 3d 291 (2002) Fifth Circuit

Up-close sniffing of person at border by trained canine offends reasonable expectations of privacy and thus is a “search” under the Fourth Amendment; however,

Use of trained canine to sniff pedestrian entering the United States was a “routine border search” and therefore, was reasonable without any showing of individualized suspicion, though the canine made brief contact with pedestrian’s groin area.

Persons approaching an international border and checkpoint can reasonably expect to be stopped, questioned and possibly searched.

F) United States v Garcia-Garcia (319 F. 3d 726 (2003) Fifth Circuit

Where border patrol agents wish to employ a drug sniffing dog at an immigration stop, they may do so only if it does not lengthen the stop beyond the time necessary to verify the immigration status of the vehicle’s passengers.

Drug sniffing dog’s alert to the undercarriage of a bus at the checkpoint provided probable cause to search the bus, but did not automatically provide probable cause to search the passengers.

Drug dog’s alert in the aisle of the bus provided reasonable suspicion the passenger seated where the dog alerted possessed the drugs that the dog sensed, and thus, the dog’s sniff and contact search when it indicated to the passenger by crawling under his seat and sniffing him more closely, and touching its nose to the passenger’s shoes and lower leg, was reasonable.

G) United States v Reyes (349 F. 3d 219 (2003) Fifth Circuit

Any seizure that occurred when bus driver, at request of border control agent, requested that passengers exit bus so that agent could inspect bus, was reasonable, inasmuch as dog’s alert to passenger compartment of bus constituted probable cause for canine search, and agent complied with Border Patrol policy in requiring passengers to exit bus.

Non-contact dog sniff of passenger, after dog alerted to passenger compartment of bus, and as all passengers exited bus at border agent’s request, was not a search, where dog was four to five feet away from passenger when sniff occurred, and agent did not intend to have dog sniff passengers as they exited the bus, but instead was waiting with dog with intention of putting dog inside bus after passengers exited.

Border agent had reasonable suspicion to briefly detain passenger after he exited the bus, where dog alerted to passenger as he exited bus.

Border agent had reasonable belief that the passenger might be armed and dangerous, as required for limited search of passenger for weapons, where dog alerted to passenger, agent knew, based on his experience and training, that weapons accompanied narcotics.

H) United States v Kaniff (351 F. 3d 780 (2003) Seventh Circuit

The defendant was routed to a secondary U.S. Customs inspection area at the airport, after a trained dog independently alerted to the odor of narcotics from her person or from a box she was carrying. When the defendant walked down the jetway past the dog, the dog pulled away from the handler, began to “work the air” behind the defendant trying to trace the source of the scent of narcotics he detected, and eventually circled the defendant’s body before hitting a box she was carrying with his nose.

The dog handler did not allow the dog to finish his alert by sitting down because the handler was not in a position immediately to verify the source of the narcotics odor and did not want to reward the dog for a potential false alert. The court concluded the dog alerted to an odor of narcotics that was somewhere between his nose, traveler’s body, and the box that traveler was carrying.

I) United States v Williams (356 F. 3d 1268 (2004) Tenth Circuit

Initial meeting between officers, drug dog and defendant was consensual in nature and consequently did not require any reasonable suspicion.

Defendant was not seized when two officers and drug dog approached him outside bus terminal, and dog smelled defendant’s groin area and sat next to him indicating presence of drugs, where encounter occurred in relatively open space, defendant’s path of egress was not impeded, officers were not in uniform, officers did not display weapon, reasonable innocent person would not feel sufficiently accused for such an encounter to be seizure.

J) United States v Jackson (390 F. 3d 393 (2004) Fifth Circuit

Fact that bus passenger, on board when officers conducted a canine sniff of bus’s interior after giving passengers choice of remaining or disembarking during sniff, had to disembark to avoid encounter with dog, did not render encounter a seizure.

Reasonable suspicion justified a Terry pat-down of bus passenger who was inside terminal. Officers had conducted a canine sniff of bus’s interior and had obtained an alert to an empty seat, making it likely that the passenger was body-carrying drugs.

K) United States v Hartwell (436 F. 3d 174 (2006) Third Circuit

Search of defendant at airport checkpoint, during which defendant passed through magnetometer and had bag x-rayed followed by individual inspection by handheld wand-like magnetometer after setting off metal detector, was justified by administrative search doctrine.

The search was permissible under the (consensual) administrative search doctrine. Airport screenings of passengers and their baggage constitute administrative searches and are subject to the limitations of the Fourth Amendment.

The entire search procedure is rendered less offensive – if not less intrusive – because air passengers are on notice that they will be searched. A search where passengers were given advance notice that the search was to be conducted, and could elect not to be searched by deciding not to board the aircraft.

As several courts have noted, a right to leave, once screening procedures begin, would constitute a one-way street for the benefit of a party planning airport mischief and would encourage airline terrorism by providing a secure exit where detection was threatened. To avoid search, a passenger must elect not to fly before placing his bag on the x-ray belt.

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