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Departments : Point of Law

K-9 Sniffs and the Fourth Amendment

Use of drug dogs to detect illegal substances is not always lawful.

June 01, 2005  |  by Devallis Rutledge - Also by this author

Under what circumstances is it permissible to use a dog to try to detect the presence of narcotics or dangerous substances without prior suspicion? The Supreme Court has considered this issue in three decisions.

U.S. v. Place

Based on reliable information, DEA agents at a New York airport intercepted Place, a suspected drug courier, and detained his luggage for approximately 90 minutes so that it could be subjected to a K-9 sniff. The dog alerted and the agents subsequently obtained a search warrant and found cocaine inside a bag. Place moved to suppress the drugs as the product of an unreasonable seizure.

The Supreme Court ruled that a brief detention of property, based on reasonable suspicion, would not violate the Fourth Amendment. In this case, the court found that the agents had reasonable suspicion for such a brief detention of the luggage, for the purpose of exposing it to a K-9 sniff. However, the court ruled that the agents exceeded the proper scope of such a detention by keeping the luggage too long. A delay of 90 minutes, said the court, was too long, and the subsequent discovery of drugs was the fruit of an unreasonable detention.

Considering the issue of whether the K-9 sniff itself would have been an unreasonable search if the seizure of the bags had not been for an excessive length of time, the court said that since a dog sniff does not intrude upon any legitimate expectation of privacy, there is no need to justify using a trained dog:

“A ‘canine sniff’ by a well-trained narcotics detection dog does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view. The sniff discloses only the presence or absence of narcotics, a contraband item. 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.”

In other words, the mere use of a K-9 to sniff for contraband, not being a “search,” does not require any reasonable suspicion, probable cause, or other justification. In this case, if the agents had arranged for a prompt K-9 sniff within a quicker, more reasonable time, the seizure of the drugs would have been reasonable, because the dog sniff itself is not a search.

Indianapolis v. Edmond

Although the facts were different, the court used an analysis similar to that in Place to analyze the use of K-9s during narcotics checkpoint stops in Indianapolis.

To try to stem the flow of illegal narcotics into and within the city, Indianapolis police set up checkpoints, similar to DUI checkpoints, to detect drugs. Signs were posted along the routes to warn motorists of the checkpoints, a mathematical formula was used to determine which vehicles to stop, and each stop lasted only two or three minutes.

While the vehicles were stopped, narcotics-detection dogs were walked around the exterior. If the dog hit, a search was conducted, and narcotics were recovered. Edmond challenged the practice in a federal lawsuit. When the case reached the Supreme Court, the practice was held to violate the Fourth Amendment.

The court pointed out that checkpoint stops had only been approved for limited purposes, such as protecting the border, removing drunk drivers, and checking for license and registration. The court has also suggested that checkpoints would be permissible in counter-terrorism situations and to block the escape of a dangerous offender. In this case, the court declined to permit the use of traffic checkpoints to search for drugs.

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