UNITED STATES COURT OF APPEALS:

ELEVENTH CIRCUIT:
Kerr v City of West Palm Beach
Johnston v Tampa Sports Authority

NINTH CIRCUIT:
United States v Cedano-Arellano

SIXTH CIRCUIT:
United States v Boxley

FIFTH CIRCUIT:
Govea v ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives)

THIRD CIRCUIT:
United States v Hartwell

SECOND CIRCUIT:
MacWade v Kelly
Cassidy v Chertoff

UNITED STATES DISTRICT COURTS:

DISTRICT of MONTANA:
United States v Pasqualino

DISTRICT of COLUMBIA:
Olaniyi v District of Columbia

DISTRICT of IDAHO:
United States v Esparza




SUMMARY


Although there is very little Federal case law on explosive detector dogs, we do have Federal case law stating that an explosive detector dog is similar to a narcotics detection dog. As there is substantial Federal case law on narcotic detector dogs, I will summarize these cases as they apply to explosive detector dogs. In addition, the few Federal explosive detector dogs will be summarized as well.

The canine team must be trained, certified and reliable:

TRAINED:

The United States canine industry standard for canine maintenance training is a minimum of sixteen hours per month (four hours per week), on average. This standard was developed and is currently endorsed by the three largest United States police canine associations: USPCA (United States Police Canine Association), NAPWDA (North American Police Work Dog Association) and NPCA (National Police Canine Association).

If an agency elected to be below this minimum U.S. canine industry standard, and thus in violation with this standard, there is probable liability in two areas:

1. Vicarious liability for failure to train and failure to supervise;
2. Liability for being “deliberately indifferent” to the training needs of a specialized
   police unit (canine).

I have polled about 18,000 police dog handlers, supervisors and administrators throughout the U.S. since 1995. About 99% of our police canine industry is in compliance with the minimum U.S. standard for police canine maintenance training. That is significant, since it not only corroborates the standard, but also shows our industry follows it.

As far as case law to support this minimum standard, there is no case that specifically states the number of hours for police canine maintenance training. There are cases addressing vicarious liability for failure to train and failure to supervise and for being deliberately indifferent to training:

KERR V CITY OF WEST PALM BEACH
875 F. 2d 1546 (1989) U.S. Court of Appeals Eleventh Circuit

Several parties filed a class action suit against the City of West Palm Beach for suffering injuries as a result of apprehension by dogs in the city’s canine unit.

The court threw out the class action suit, stating that the court must assess the reasonableness of the officers’ actions in light of the essentially unique factual circumstances. The remaining two issues in question were:

• Did the department fail to adequately train the canine unit? (Negligent training)
• Did the department fail to adequately supervise the canine unit to ensure that both the misbehaved canines, and handlers who had exhibited poor judgement using canine force against minor misdemeanor suspects, all received corrective training? (Negligent supervision)

The common element in both issues was failure to train. The court concluded that police dogs must be subject to continual rigorous training in law enforcement techniques. Such training ensures that the dogs will continue to respond with alacrity to the commands of their handlers; without such training, the dogs’ responsiveness to their handlers’ commands will deteriorate, resulting in more frequent and more serious injuries to apprehended suspects than might otherwise occur.

CITY OF CANTON, OHIO V HARRIS
489 US 378 (1989) U.S. Supreme Court

A municipality may be held liable for violation of rights, which violations result from a municipality’s failure to adequately train its employees, only if that failure reflects a “deliberate indifference” on the part of the municipal policy.

The “deliberate indifference” standard:
Failure to train may be fairly said to represent a policy for which the municipality
is responsible, and for which it may be held liable where injury results, if, in the
light of the duties assigned to specific officers, the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that municipal policymakers can reasonably be said to have
been deliberately indifferent. (i.e. canine or any other specialty unit/individual.)

CERTIFIED:

The United States canine industry standard for certification is yearly certification. This standard was developed and is currently endorsed by the three largest United States police canine associations: USPCA (United States Police Canine Association), NAPWDA (North American Police Work Dog Association) and NPCA (National Police Canine Association). This standard is also endorsed by the largest United States police canine contraband detector dog association, NNDDA (National Narcotic Detector Dog Association).

Federal case law dictates that a police dog must be trained, certified and reliable. Since the U.S. canine industry standard is yearly certification, if your agency is not certifying yearly, they would be negligent and out of compliance with the canine industry standard. There are legal ramifications for both a patrol and a contraband detector dog, if they are not within the canine industry standard, yearly certification.

I have polled about 18,000 police dog handlers, supervisors and administrators throughout the U.S. since 1995. About 99% of our police canine industry is in compliance with the minimum U.S. standard for police canine certification. That is significant, since it not only corroborates the standard, but also shows our industry follows it.

There are numerous Federal cases that state the dog must be certified. Here is one example:

UNITED STATES v CEDANO-ARELLANO
(332 F. 3d 568 (2003) U.S. Court of Appeals Ninth Circuit
A drug detection dog’s training and certification records are discoverable by the defense. These materials at issue are crucial to defendant’s ability to assess dog’s reliability, a very important issue in his defense, and to conduct effective cross-examination of dog’s handler.

RELIABLE:
This is the most recent area where our industry is being challenged in court. There are numerous Federal cases that state the dog must be trained, certified and reliable. Here is one example:

UNITED STATES v BOXLEY
(373 F. 3d 759 (2004) U.S. Court of Appeals Sixth Circuit

We recognize that a positive canine alert indicates that narcotics are present in the item sniffed or have been present in such a way as to leave a detectable odor.

In order to admit evidence of a dog’s alert to an aroma of drugs, it is not necessary to provide the dog’s training and performance records. Rather testimony as to the dog’s record is sufficient. While training and performance documentation would be useful in evaluating a dog’s reliability, the testimony of the dog’s handler sufficiently established the dog’s reliability. Thus, after it is shown the dog is certified, all other evidence relating to his accuracy goes only to the creditability of the testimony, not to the dog’s qualifications.

It is not necessary to show that the dog is accurate 100% of the time, because a very low percentage of false positives are not necessarily fatal to finding that a drug detection dog is properly trained and certified.

STANDARDS:
As of today, there is no national or Federal standard addressing these three issues: training, certification and reliability. There is one national group that is currently working on national “best practice” guidelines on training, certification and reliability. That group is SWGDOG (the Scientific Working Group on Dog and Orthogonal detector Guidelines).

Until that national best practice guideline is developed, we as an industry rely upon existing national canine associations and Federal case law for guidance. In addition, several states have developed their own state guidelines. Those states that do not have guidelines should be in compliance with a national canine association, a regional canine association or another existing state guideline.

 

 

CASES

UNITED STATES SUPREME COURT

 

United States v Place
462 U.S. 696 (1983) U. S. Supreme Court

Exposure of traveler's luggage, which was located in a public place, to a trained narcotics detection dog for sniffing purposes did not constitute a "search" for Fourth Amendment purposes.

The canine sniff discloses only the presence or absence of narcotics, a contraband item.

The canine sniff does not expose noncontraband items that otherwise would remain hidden from public view.

 

Illinois v Caballes
125 S. Ct. 834 (2005) U.S. Supreme Court

Dog sniff conducted during a lawful traffic stop, that reveals no information other than location of contraband that no individual has any right to possess, does not violate the Fourth Amendment.

Use of a well trained narcotics detection dog, one that does not expose noncontraband items that otherwise would remain hidden from public view, during lawful traffic stop does not violate the Fourth Amendment.

Where lawful traffic stop was not extended beyond time necessary to issue warning ticket and to conduct ordinary inquiries incident to such a stop, another officer’s arrival at scene while stop was in progress and use of narcotics detection dog to sniff around the exterior of motorist’s vehicle does not have to be supported by some reasonable, articulable suspicion.

 

City of Indianapolis v Edmond
121 S. Ct. 447 (2000) U.S. Supreme Court

Roadblocks established to interdict unlawful drugs violate the Fourth Amendment.

A roadblock must be a bona fide effort to implement an authorized regulatory policy, rather than a pretext for a dragnet search for criminals.

The Supreme Court of the United States has upheld brief, suspicionless seizures in these cases:

• A fixed checkpoint designed to intercept illegal aliens;
• Sobriety checkpoint aimed at removing drunk drivers from the road;
• A roadblock to verify drivers’ licenses and registrations.

This decision does not affect the validity of border searches or searches in airports and government buildings. Nor does it impair police officers’ ability to act appropriately upon information that they properly learn during a lawful checkpoint stop.

The fact that officers walk a narcotics detection dog around the exterior of a car during a checkpoint does not transform the seizure into a search.

 

Illinois v Lidster
540 U.S. 419 (2004) U.S. Supreme Court

Brief stops of motorists at highway checkpoint at which police sought information about recent fatal hit and run accident on highway, was reasonable.

The motorists who were systematically stopped so police could ask them about information on the accident and hand each driver a flyer requesting assistance in identifying the vehicle and driver involved, was reasonable, and thus did not violate the rights of a motorist who was arrested for driving under the influence when he arrived at stop.

 

United States v Sokolow
490 U.S. 1 (1988) U. S. Supreme Court

A sniff from a Narcotic Detector Dog and a positive alert provides probable cause to obtain a search warrant for property.

 

 

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT


DECISIONS AFFECTING:

• Connecticut

• New York

• Vermont

 

MacWade v Kelly
460 F. 3d 260 (2006) Second Circuit

New York City’s program of random, suspicionless subway baggage searches, which served special need of preventing terrorist attack on subway, was reasonable and thus was legal under special needs exception to the search warrant requirement.

New York City’s program is reasonable and therefore constitutional, because (1) preventing a terrorist attack on the subway is a special need; (2) that need is weighty; (3) the program is a reasonably effective deterrent; and (4) even though the searches intrude on a full privacy interest, they do so to a minimal degree.

 

Cassidy v Chertoff
471 F. 3d 67 (2006) Second Circuit

Ferry operator’s employees’ suspicionless searches of passengers’ carry-on baggage and automobile trunks, performed according to Coast Guard approved plan and pursuant to Marine Transportation Security Act (MTSA), were minimally intrusive, supporting searches’ validity under Fourth Amendment based upon special needs doctrine.

While plaintiffs enjoy undiminished privacy expectations in their carry-on baggage and the court presumes such undiminished expectation in the trunks of their vehicles, the court found that the remaining two factors under the “special needs” doctrine weigh heavily in the government’s favor. Given that both the intrusions on plaintiffs’ privacy interests were minimal and the measures adopted were reasonably efficacious in serving the government’s undisputed important special need to protect ferry passengers and crew from terrorist acts, the court found no constitutional violation.

 

 

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT


DECISIONS AFFECTING:

• Delaware

• New Jersey

• Pennsylvania

• Virgin lslands

 

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

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.

 

 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT


DECISIONS AFFECTING:

• Louisiana

• Mississippi

• Texas

 

Govea v ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives)
2006 WL 3147324 (2006) Fifth Circuit

Govea attended the horse races at Lone Star Park in Grand Prairie, Texas, on the day before the facility was to host the Breeders’ Cup, a national horse racing event. While sitting in the viewing area, Govea sketched some of the architectural elements of the facility. Two security guards investigated, and Govea showed them his drawings, which also included images of pigs in military uniforms and human victims of a U.S. bombing.

When the police arrived, Govea went to a room where he was frisked and questioned further. Some of the questions concerned Govea’s political and religious beliefs as reflected in the drawings. Ultimately, Govea was escorted out of the facility, and agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) conducted a dog sniff and visual inspection of Govea’s van.

Govea sued for violation of his Fourth Amendment right against unreasonable search and seizure.

Govea’s Fourth Amendment claim failed to allege any facts that could possibly show an unlawful search or seizure on the part of the ATF. A dog “sniff’ is not a search.

A visual inspection of the vehicle, which included looking under the vehicle, was not a search because the items observed were in plain view.

 

 

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT


DECISIONS AFFECTING:

• Alabama

• Florida

• Georgia

 

JOHNSTON v TAMPA SPORTS AUTHORITY
490 F. 3d 820 (2007) U.S. Court of Appeals Eleventh Circuit

Season ticket holder to professional football team voluntarily consented to pat-down searches at entrance of football stadium, and therefore pat-down searches did not violate ticket holder's Fourth Amendment rights.

Each time he presented himself at the entrance to attend a game, ticket holder knew that he would be subjected to a pat-down, ticket holder stated only a verbal objection to the search followed by his submission to the pat-down search process and his ultimate entry into the stadium to watch the football games.

Ticket holder was not in custody at the time of the search, the screeners did not coerce him, ticket holder was not under any express or implied threat of physical or other retribution if he refused to submit to the search, and he was well aware of his right to refuse to submit to the pat-down search. Johnston elected to be patted down.

Considering the totality of the circumstances, the Court concluded that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game.

 

 

UNITED STATES DISTRICT COURT


District of Montana

 

United States v Pasqualino
628 F. Supp 183 (1986)

Officers were justified in temporarily detaining defendant, a train passenger, to verify or to dispel their suspicions in manner that did not exceed limits of any investigative detention, where officers were investigating threat that bomb was on train, defendant attempted to exit station with military duffle bag, and defendant appeared nervous.

Defendant's purported consent to search of his bag by officers who were investigating threat that bomb was on train on which defendant was passenger was voluntary, despite officers' threat to obtain warrant if consent were withheld, and thus, warrantless search of bag was valid, where detention of defendant and subsequent inquiry regarding consent occurred in public place within plain view of numerous witnesses, officer's statement regarding procurement of warrant was spontaneous and invited by defendant, who questioned what would happen if he refused to allow search, and defendant's bag could have legitimately been subjected to “canine sniff” for purpose of detecting presence of explosives.

A threat was anonymously communicated by telephone to an official of Amtrak, in Chicago. The caller informed the official that an explosive device had been placed upon one of Amtrak's trains, the “Empire Builder”. In an effort to facilitate detection of the purported explosive device, Amtrak promptly secured the use of a “sniffer dog” belonging to the United States Air Force. The dog was to be available for use at the station approximately one hour and forty-five minutes after a request was officially made.

A “canine sniff” is not a search within the meaning of the Fourth Amendment. Consequently, defendant’s duffel bag could have legitimately been subjected to a “canine sniff” for the purpose of detecting the presence of explosives. The record establishes that this means of investigating the contents of defendant’s bag was not only feasible, but was imminent.

 

 

UNITED STATES DISTRICT COURT


District of Columbia

 

Olaniyi v District of Columbia
416 F.Supp.2d 43 (2006)

Olaniyi came to the Capitol Building dressed as a suicide bomber. He was handcuffed. While searching the plaintiff, the officers discovered a set of keys, which the plaintiff told the officers were for the use of his van. The police located the van in the 300 block of 3rd Street NE, approximately four blocks from the Capitol Building.

The inspection of the exterior of the van by “two canine technicians,” is not itself a cognizable violation of the Fourth Amendment. A dog sniff of a vehicle that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

The fact that officers walk a narcotics-detection dog around the exterior of each car at checkpoints does not transform the seizure into a search. An exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics.

 

 

UNITED STATES DISTRICT COURT


District of Idaho

 

UNITED STATES v ESPARZA
2007 WL 2684836 (2007) U.S. District Court Idaho

Agents were conducting a surveillance of Esparza because there was an active warrant for his arrest . Following Esparza’s arrest, a K-9 handler ran his narcotics detection dog around the exterior of Esparza’s vehicle. The dog did not alert.

Another K-9 handler was contacted to bring his explosives detection dog to the scene. The dog alerted at the trunk and at the driver's seat. The police searched the vehicle and found a single .22 caliber bullet inside a suitcase located in the trunk.

The court addressed an explosive dog alert as reasonable suspicion, not probable cause. The court stated an alert from an explosive dog is only reasonable suspicion, not probable cause.

An explosives detection dog, like the thermal-imaging device, detects both contraband and non-contraband items. For example, the dog in this case was trained to detect ammonium nitrate, a chemical found in household items such as fertilizer and printer cartridges. Consequently, the dog may alert to non-contraband items, causing law enforcement to invade on perfectly lawful activity.

Accordingly, the Court concluded that walking the explosives detection dog around the vehicle implicated Esparza's Fourth Amendment rights. The dog sniff must be supported by a reasonable suspicion of criminal activity or that the police officer's safety was at risk. More specifically, the government would be required to establish that the officers had a reasonable, articulable suspicion that the vehicle contains explosives or explosives related material.

The explosives detection dog should not be used as a general criminal investigative technique. Rather, its use must be justified by concerns about explosives or weapons.

The Court found that the officers did not have reasonable, articulable suspicion to justify use of the explosives detection dog, and use of the explosives detection dog was therefore a violation of Esparza's Fourth Amendment rights.

(See: United States v Arvizu for the U.S. Supreme Court’s definition of reasonable suspicion. It is located in the Narcotic and Contraband Canine Legal Update and Opinions.)




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