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Baggage at Airports, Bus Terminals or Train
Stations
It is generally accepted that a canine sniff of luggage at an airport,
bus terminal or train station is not a search and there-fore none of
the Fourth Amendment requirements attach.
U.S. v. Place, 462 U.S. 696, 706-07 (1983). ("The investigative
procedure of subjecting luggage to a 'sniff test' by a well-trained
narcotics dog does not constitute a 'search' within the meaning of the
Fourth Amendment.") "It does not expose non-contraband items
that otherwise would remain hidden from public view." is thus "much
less intrusive than a typical search," and "discloses only
the presence or absence of narcotics, a contraband item....the limited
disclosure also insures that the owner of the property is not subjected
to the embarrassment and inconvenience entailed in less discriminate
and more intrusive investigative methods."
U.S. v. Viera, 644 F. 2d 509 (5th Cir. 1981). Bus driver alerted agents
when he saw pills in unusually heavy luggage. Agents met the bus and
took the defendants' bags for a canine
sniff. Quaaludes were found after warrant obtained. Held: The sniff
of the exterior of the suitcases was not a search even though the agents
prepped the suitcases prior to the sniff by squeezing their exterior.
Even though the dog was not trained to detect Quaaludes, once there
was probable cause for the warrant, agents could seize Quaaludes under
plain view doctrine. Affidavit in support of warrant not defective because
only the successful alerts were noted and not the percent of accuracy.
U.S. v. Bronstein, 521 F. 2d 459 (2nd Cir. 1975), cert. denied 424 U.S.
918 (1976). Key dog sniffing case. Acting on a tip from an informant,
DEA agents brought dog to airport. The
dog sniffed luggage, reacted positively, so agents apprehended defendants
and searched their luggage. The court held that "sense-enhancing
devices" were permissible in criminal investigation. Reasoning
includes that dog only reacted to contraband and did not disclose contents
of suitcase, and that dog was used only after reasonable suspicion was
shown. Moreover, it was a "plain smell" theory--that the sniff
search was nonintrusive, discriminate, and relatively inoffensive. Bronstein
made it clear that the dog was not used in a dragnet operation directed
against all flight passengers, but instead against one person on whom
reliable information had been given. This "no-dragnet"
warning has been eroding, however!
U.S. v. Solis, 393 F. Supp. 325 (C.D. Cal. 1975), rev'd 536 F.2d 880
(9th Cir. 1976). Upon receiving a tip from an informant, the police
brought dogs to search defendant's semi-trailer
which he had completely enclosed. The use of the dogs constituted a
search under 4th amendment. See Katz.
Katz v. U.S., 389 U.S. 347 (1967). This is often said to be the forerunner
of dog sniffing cases. In Katz, the court mandated a 2-part test in
4th Amendment analysis; 1) First
determine whether an intrusion constitutes a search under the 4th Amendment
(an intrusion is a search if it violates a person's actual (subjective)
expectation of privacy and if society is
prepared to recognize that expectation as "reasonable"; 2)
then, if a search occurred, was the search reasonable.
2. However, the question of whether the seizure of the luggage in order
to effect the canine sniff was in violation of the Fourth Amendment
prohibition against unreasonable search and
seizure is frequently a problem as noted in the sample cases below:
U.S. v. Place, 462 U.S. 696 (1983). Seizure of suspect's luggage for
purposes of having a canine sniff for narcotics held to be in violation
of the Fourth Amendment where the agents kept the respondent's luggage
for an unreasonable amount of time (90 minutes) on reasonable suspicion
without probable cause before subjecting it to a canine sniff test.
The Court apparently felt this length of time was unreasonable because
the agent knew that
a canine sniff would be used before the plane landed and yet made no
effort to call ahead to have canine unit readily available. The Court
found the agents did not diligently pursue their investigation in order
to minimize the intrusion on the suspect's Fourth Amendment rights.
The Court stated the situation was exacerbated by the agent's failure
to inform the suspect accurately of the place to which they were transporting
the luggage, of the length of time he might be without his luggage and
of what arrangements would be made for the return of the luggage if
no drugs were found.
U.S. v. Cooper, 873 F.2d 269 (11th Cir. 1989). Two suspects in an airport
interdiction stop refused to consent to a search of baggage--in fact
the female suspect denied traveling
with baggage. Agents, without her knowledge, took the bags her bags,
off her departing connecting plane and 35 minutes later presented them
to drug dog who alerted. When defendant got to her destination she did
not attempt to claim any luggage and denied having any. Held: Luggage
was detained on reasonable articulable suspicion. The agents acted with
reasonable diligence to get drug dog to airport. There was no advance
notice a drug dog would be needed and therefore the 35 minute delay
was not unreasonable. Court refused to find a drug dog must be kept
on the premises at the airport. The Court noted taking bags form a departing
flight without notice to the owner is "a questionable practice."
U.S. v. Teslim, 869 F.2d 316 (7th Cir. 1989). Held: Detaining
luggage 25 minutes for a dog sniff reasonable under Terry, especially
since they gave him a receipt. Sniff by drug dog minimally intrusive.
U.S. v. Massac, 867 F.2d 174 (3rd Cir. 1989). Law enforcement received
a tip on two suspicious individuals who boarded Amtrak in Florida. A
dog was dispatched to meet the train. All the luggage that was recovered
from the train was sniffed which delayed the bags by approximately one
minute. Held: Sniff by drug dog was not a illegal search because the
luggage was in the custody of a common carrier at the time of the sniff.
U.S. v. Sawyer, 849 F.2d 938 (5th Cir. 1988). The Border Patrol
took a suspects luggage off the airport conveyor belt after suspect
checked them with the airline. The agents compressed the sides of the
bags with their hands to force air out and sniffed. They smelled marijuana
and cologne. The suitcases were taken to locked area. The suspect was
found in the airport and advised of this. He gave statements after being
Mirandized. Drug dog alerted to suitcase three times. The court
found nothing wrong with the officer's compression of the bags.
U.S. v. Borys, 766 F.2d 304 (7th Cir.. 1985). In an airport interdiction,
luggage was detained 75 minutes on investigatory detention under Terry.
Defendant was told he was free to leave. He was given a receipt
for luggage and told how to retrieve the bags. The agents sent for a
drug detection dog.
Held: Seizure of the baggage for 75 minutes was not in violation of
the Fourth Amendment. Officers used reasonable diligence in getting
dog and told the defendant how he could retrieve the bags. Court declined
to impose an absolute time limited on getting dog to airport because
of the practical problems involved in guessing when a dog might be needed.
U.S. v. Alpert, 816 F.2d 958 (4th Cir. 1987). During airport
interdiction three suspects were developed based on profile and their
behavior. They would not consent to search. Agents took a briefcase
for a canine sniff. They reboarded the connecting flight. The agent
took the briefcase and locked it in his office while he met another
flight. Then he took the briefcase to the police academy which was 10-15
minutes away. Dog alerted 50 minutes from time briefcase detained. Warrant
obtained. Held: The canine sniff was not a search. The 50 minute detention
of the briefcase was reasonable. The agents took steps to see that the
stop would be no more intrusive than necessary. Alpert seemed disinterested
in the briefcase's speedy return--didn't give address in New York,
merely asked it be sent in care of the airline. Even if the briefcase
would have been promptly taken to the academy, the sniff could not have
been done in time for Alpert to make his flight. The court stated it
did not understand why the officer did not send for the dog which could
have been there within ten minutes.
U.S. v. Scales, 903 F.2d 765 (10th Cir. 1990). Citing Place for
proposition that reasonable suspicion detention of luggage must be brief;
7-hour seizure of suitcase before dogs alerted exceeded agent's authority.
Court suggested dogs could have been summoned more quickly.
U.S. v. Puglisi, 723 F.2d 779 (11th Cir. 1984). Seizure of luggage
without harmful effects on traveler is not Fourth Amendment issue. U.S.
v. Lovell, 849 F.2d 910 (5th Cir. 1988), same.
U.S. v. Germosen-Garcia, 712 F. Supp. 862 (1989). The defendants,
Germosen-Garcia and Nunez, were charged with possession of with intent
to distribute 10.05 ounces of cocaine, and aiding and abetting the distribution
of cocaine. Both are violations of federal law. The defendants moved
to suppress evidence obtained during the course of Drug Enforcement
Agency investigations on January 18, 1989. They contended that DEA agents
did not possess a reasonable suspicion to subject their luggage to the
attention of a dog trained to detect narcotics, and that the DEA agents
improperly stopped them at Wichita Mid-Continent Airport. Defendant
Nunez also claimed that he did not speak English with sufficient understanding
to have knowingly consented to the search of his luggage.
DECISION: Denied.
The use of the dog constituted neither a search nor a
seizure of the defendant's luggage under the Fourth Amendment.
The Fourth Amendment protects against the violation of a reasona-
ble expectation of privacy. Here, the investigative device was
designed to detect the presence of contraband narcotics only.
The investigative device was used in a public area. Under these
circumstances, no reasonable expectation of privacy was in-
fringed.
U.S. v. Pantazis, 816 F.2d 361 (8th Cir. 1987). Airport narcotics
agent was aware of a brief trip being made by defendant to Miami. Agent
waited for defendant at the gate, then observed him for 20 minutes.
Agent approached defendant and asked him several questions, which he
answered falsely. Agent asked to search defendant's bag, defendant
refused, agent seized the bag. Defendant left the airport, agent had
dog sniff bag, and dog reacted positively. Agent obtained warrant and
found cocaine, cash, etc. in the bag.
The court ruled that it is permissible to briefly detain the luggage
if there is reasonable and articulable suspicion, per Place and Terry.
Here, the agent followed proper procedure before detaining then searching
the bag.
U.S. v. Painter, U.S. District Court, W. D. Missouri, W. D. Nov. 29,
1979. On motions to suppress cocaine seized from suitcase and to suppress
certain statements made to officers during airport confrontation, the
District Court, Sachs, J., held that: (1) alert by trained "sniffer
dog" to defendant's suitcase was sufficient to support finding
of probable cause for issuance of warrant for search of suitcase; (2)
agents, who did not seek to avoid warrant requirements but who simply
could not have obtained warrant within time available, followed only
procedure which could protect both defendant's constitutional rights
and insure preservation of evidence by securing suitcase and holding
it unopened until warrant was obtained; and (3) defendant's statements
at open area of air terminal were voluntary.
U.S. v. Johnson, U.S. Court of Appeals, 2nd Cir. Defendant pleaded guilty
in the United States District Court for the Eastern District of New
York, Eugene H. Nickerson, J., to possessing a controlled substance
with intent to distribute, and he appealed. The Court of Appeals held
that positive reaction of police dog specially trained to detect the
odor of controlled substances, when considered in connection with a
variety of factors indicating that defendant might have been transporting
drugs, was sufficient to establish probable cause for search of defendant's
luggage which was in the possession of an airline.
State v. Elkins, Court of Appeals of Ohio, 1976. Defendant appealed
his conviction of possession for sale of marijuana and keeping a house
for the illegal keeping or dispensing of marijuana. The Court of Appeals
held that where reasonable suspicion existed that a container located
in a public place held drugs illegally possessed, the use of a dog's
olfactory powers to confirm such suspicion did not constitute an illegal
search in violation of the Fourth Amendment.
State v. Morrow, Supreme Court of Arizona, 1981. Held: (1) emissions
from a bag are things that are exposed to public and are not protected
by Fourth Amendment; (2) "sniffing" of dog around defendant's
bag was not search for Fourth Amendment purposes; and (3) evidence was
sufficient from which trial court could find that defendant's disclaimers
of knowledge and ownership of attache case immediately prior to search
constituted voluntary abandonment of case and negated any standing on
part of defendant to challenge search.
U.S. v. Meyer and Skelcher, 1976. The defendants were convicted
in the District Court (Puerto Rico). Held: That affidavit which indicated
that dog had reacted positively to scent of narcotics in defendant's
room aboard ship and which indicated that the dog was trained was sufficient
to show reliability of the dog; and that affidavits established probable
cause for search of defendant's hotel room.
State v. Wolohan, 23 Wash. App 813, 598 P2d 421 (1979). Allowed
an indiscriminate, exploratory sniff search of a bus packaging area.
State v. Morrow, 128 Aris. 309 625 P2d 898 (1981). Also allows
dragnet sniffing, reasoning that "if a dog's sniff is not a search,
then it is immaterial whether there was pre-sniff knowledge."
People v. Mayberry, 31 Cal. 3d 335, 644 P2d 810, 182 Cal. Rptr 617
(1982). Ca. Sup. Ct. approved San Diego P.D. making routine exploratory
sniffing expeditions in baggage area of San Diego International Airport.
They apparently concentrate on inbound flights from Florida.
People v. Furman, 30 Cal. App. 3d 454, 106 Cal. Rptr. 366 (1973).
Calif. court held admissible the sniff search evidence. A reliable
informant gave a state narcotics agent information. The agent checked
out the information then had a U.S. Customs agent and dog come to the
airport. The dog reacted positively. The court reasoned that the informant's
tip had been corroborated by the narcotics agent and that the dog's
positive reactions justified reliance omits reactions as corroboration
for the tip.
U. S. v. Knox, 839 F.2d 285 (6th Cir. Ct. App. Tenn. 1988).
Positive reaction of Narcotics Unit dog would have established probable
cause. B. Tipsters/Anonymous Informants.
U. S. v. McGauley, 786 F.2d 888 (8th Cir. 1956) Missouri Case.
Based on an "anonymous" (defendant's wife) tip, two detectives
and a DEA agent observed defendant at airport. They approached defendant
at his car and asked questions. They detained his bag and asked him
to follow them back into the terminal. Along the way, defendant
volunteered more about the bag. Defendant was then given a Miranda warning.
The suitcase was taken to police HQ, where a dog sniffed it and reacted
positively. A search warrant was executed, cocaine was found inside.
The court found that appellant was properly arrested and the bag properly
detained and searched. The court reasoned that "hearsay information
from a undisclosed informant may supply probable cause necessary for
lawful arrest. This is especially true when the informant's tip is corroborated
by police officials."
State v. LaSalla, 536 So. 2d 1037 (Fla. 4th DCA 1988). Removal
of checked suitcase from conveyor belt held improper without probable
cause or reasonable suspicion; whether traveler delayed or not was not
mentioned. Puglisi and Goldstein have ruled subjecting luggage to sniff
is not a seizure unless removal actually or constructively interferes
with traveler's movement.
Caraluzzi v. State, 409 So. 2d 1108 (Fla. 3d DCA 1982). Removal
of luggage for sniff okay where interval during which removed did not
extend past scheduled departure of flight. Traveler has no privacy interest
which is offended by movement or relocation of luggage once surrendered
to airline's custody.
Crockett v. Texas, 1991 Westlaw 11999 (Tex. Cr. App. 1991). (not
final) After reciting that a sniff of luggage is not a search under
Place, the court said that "[t]he amount of evidence necessary
to support reasonable suspicion in this context has not yet been addressed
by the Supreme Court, " without clarifying whether "this context"
means "a temporary detention of Luggage" or "olfactory
inspection by police dogs," or both.
U.S. v. Graham, 982 F.2d 273 (8th Cir. 1992). K-9 reacts with
an "air scent" when taken down aisle of bus during refueling
stop. Officers properly remove luggage from overhead rack so K-9 can
sniff each bag. Officers obtain search warrant after luggage owner refuses
consent, finding 5 kilos of cocaine. Officer questions to suspect about
ownership of luggage were proper prior to arrest.
U.S. v. Hall, 978 F.2d 616 (10th Cir. 1992). After boarding train,
officers (unassisted by dog) sniff the lock area of a large, heavy suitcase
owned by suspect and smell marijuana, but had no reasonable suspicion
to detain the suitcase.
U.S. v. Harvey, 961 F.2d 1361 (8th Cir. 1992). K-9 gives "air
alert" and officers move the bag out of the overhead rack. Held:
This is not an interference with suspect's possessory interest, the
Jacobsen test. Sniff is not a search.
U.S. v. Bell, 892 F.2d 959 (10th Cir. 1989). Reasonable suspicion
existed to detain suitcase where suspect tries to hide suitcase by turning
away from officer, tried to conceal his knowledge of co-conspirator,
and was increasingly nervous during questioning.
U.S. v. Ward, 961 F.2d 1526 (10th Cir. 1992). No reasonable suspicion
to detain suspect simply because he traveled under alias, paid cash
for one way ticket, reserved largest room on the train.
U.S. v. Bloom, 975 F.2d 1447 (10th Cir. 1992). No reasonable
suspicion where suspect uses real name and paid cash for one-way ticket,
kept luggage in roomette, was nervous.
U.S. v. Beale, 736 F.2d 1289 (9th Cir. 1984). Sniff of luggage
at airport did not "materially interfere with suspect's possessory
interest - no seizure.
U.S. v. Brown, 884 F.2d 1309 (9th Cir. 1989). Diversion of
luggage to cargo hold of plane to facilitate dog sniff was not a
seizure since no interruption of suspect's possessory interest -
no delay in travel plans and no intrusion into interior of suitcase.
U.S. Lyons, 957 F.2d 615 (8th Cir. 1992). K-9 accidentally tears
open package being sniffed on reasonable suspicion. Airline employees
call police.
U.S. v. Sterling, 909 F.2d 1078 (7th Cir. 1990). Detaining luggage
for a period of 90 minutes to allow dog sniff is O.K. where officers
had reasonable suspicion and acted with all reasonable diligence in
pursuing the investigation.
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