BORDER SNIFFS:
Summary:
Expectation of privacy at an international border is less than in the interior.
The length of detention at a border is still limited to immigration related business. You may conduct a dog sniff of either property or persons, only if it does not lengthen the detention or if officers obtain consent.
A) United States v Montoya de Hernandez (473 U.S. 531 (1985) U.S. Supreme Court
Consistent with Congress’ power to protect the nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause or warrant.
Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatsoever.
Expectation of privacy at an international border is less than in the interior.
B) United States v Taylor (934 F. 2d 218 (1991) Ninth Circuit
Border patrol agent’s observation that motorist became increasingly nervous and uneasy at end of initial check for illegal aliens constituted minimal, articulable suspicion necessary to justify brief further delay for dog sniff.
C) United States v Hernandez (976 F. 2d 929 (1992) Fifth Circuit
Canine sniff of exterior of car referred by border patrol agent in secondary inspection area is not a search.
Agent had probable cause to search vehicle for narcotics when the vehicle had been properly stopped and a dog performing sniff test had alerted to the presence of drugs.
D) United States v Resio-Trejo (45 F. 3d 907 (1995) Fifth Circuit
A vehicle stopped at an U.S. Border Patrol checkpoint. While the driver was asked routine citizenship questions, a Border Patrol canine alerted to the vehicle. The agent then sent the vehicle to the secondary inspection area. Drugs were then discovered hidden in the vehicle.
E) United States v Massie (65 F. 3d 843 (1995) Tenth Circuit
At fixed checkpoint, border patrol agents may stop, briefly detain and question people without any reasonable suspicion.
Agents at secondary inspection can inquire into any suspicious circumstances they observe, as long as questioning is related to their duties.
Detention of vehicle where questioning lasted 8 to 11 minutes from time of stop at primary, to the moment the dog alerted to the vehicle at secondary was reasonable.
Agents, based upon the dog alert, had probable cause to search the vehicle.
F) United States v Machuca-Barrera (261 F. 3d 425 (2001) Fifth Circuit
Because stops at an immigration checkpoint need not be justified by reasonable suspicion, court does not ask the officer to articulate a justification for the stop. Instead, the justification comes from its problematic purpose.
While a border patrol agent at an immigration checkpoint may refer a car to secondary inspection for any reason or no reason at all, the length of the detention is still limited by the immigration-related justification for the stop.
Border patrol agents may only conduct a drug-dog sniff if it does not lengthen a stop or if they obtain consent.
G) 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.
H) United States v Hernandez (314 F. 3d 430 (2002) Ninth Circuit
At a Mexico/U.S. border crossing, a narcotic’s dog alerted to a vehicle in the primary inspection area. Upon the dog alert, border agent’s detention did not become an arrest when the agents removed three occupants from the minivan, temporarily placed defendants in handcuffs and took them into an office and left them un-cuffed there. The detention became an arrest only after agent’s positively identified marijuana and the defendants were again handcuffed and advised of their Miranda rights.
Border agents had probable cause to arrest the rear seat passenger in the minivan. The vehicle was known by officers to be commonly used for drug trafficking, agent interviewed the driver, the passenger acted suspiciously, seemed very nervous and stiff, tried to avoid eye contact with the agent, marijuana was found within reach of the passenger and the amount of marijuana was beyond that for personal use.
I) United States v Moreno-Vargas (315 F. 3d 489 (2002) Fifth Circuit
Checkpoint with primary purpose of identifying illegal immigrants is constitutional, regardless of whether checkpoint has secondary purpose of drug interdiction, unless length of detention is insufficiently limited.
Immigration stop at fixed checkpoint was reasonable, regardless of checkpoint’s alleged secondary purpose of drug interdiction, since the checkpoint had its primary programmatic purpose enforcement of immigration laws. The permanent presence of a dog cross-trained to detect drugs as well as humans did not affect duration of stop.
J) 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.
K) 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.