AIRPORT SEARCHES

AIRLINE & AIRPORT SNIFFS:

Summary:

A) Baggage Search:

Checked Baggage:

Sniff of checked baggage is not a search. Movement of checked baggage to facilitate a canine sniff is allowed.

Carry-on Baggage:

In order for police officers to briefly detain carry-on baggage for a canine sniff, they must have either consent or reasonable suspicion supported by articulable objective facts that the baggage contains drugs.

Drug courier profile, without more, does not create reasonable suspicion.

Failure to consent to search cannot form any part of basis for reasonable suspicion.

After a trained narcotics dog positive alert to baggage for narcotics, officers have probable cause to seize the baggage and obtain search warrant.

The courts are divided on the issue of pushing on sides of an object to expel air from inside in an effort to smell contents. The latest ruling states that this action is a search.

You cannot “physically manipulate” carry-on luggage to feel the bag in an exploratory manner.

1) United States v Bronstein (521 F. 2d 459 (1975) Second Circuit

Drug detecting police dog’s sniffing, nipping and biting at defendant’s luggage at a public airline terminal was not a search.

There can be no reasonable expectation of privacy when one transports baggage by plane.

2) United States v Sullivan (625 F. 2d 9 (1980) Fourth Circuit

Sniffing of checked luggage was not a search.

“Mild interest” expressed by dog in a suitcase provided probable cause for a warrant. The interest was coupled with other circumstances:
• one suspect was traveling under assumed name;
• the other suspect had no identification;
• they had four new suitcases;
• they paid cash for one-way airline tickets.

3) United States v Klein (626 F. 2d 22 (1980) Seventh Circuit

Where a dog trained in drug detection alerted to suitcases at an airport, that provided probable cause for the issuance of a search warrant.

The use of a dog trained in drug detection to sniff inanimate objects for contraband, does not constitute a search.

4) United States v Goldstein (635 F. 2d 356 (1981) Fifth Circuit

There is no reasonable expectation of privacy to the airspace surrounding luggage. Drug agents’ use of a dog’s trained olfactory sense to sniff the exterior of suitcases, was not a search.

Once the trained dog positively reacted to the presence of drugs in luggage, that reaction supplied probable cause to seek a search warrant.

Even though probable cause existed, a search warrant was required to search the suitcases.

5) United States v Martell (654 F. 2d 1356 (1981) Ninth Circuit

Where carry-on suitcases were detained for only 20 minutes awaiting the arrival of a police dog, and it was the dog’s alert that the luggage contained narcotics, which provided probable cause for the search warrant, the detention was reasonable.

6) United States v Johnson (660 F. 2d 21 (1981) Second Circuit

Use of a dog specially trained to detect the odor of controlled substances does not constitute a search or seizure.

Positive reaction of police dog trained to detect odor of controlled substances, when considered in connection with a variety of factors indicating the defendant might have been transporting drugs, was sufficient to establish probable cause for search of defendant ’s luggage which was in possession of an airline.

7) United States v MacDonald (670 F. 2d 910 (1982) Tenth Circuit

Use of a trained dog to sniff for contraband without trespassing is not a search.

So long as police reasonably suspect criminal activity, they may temporarily detain baggage or move it to permit examination by drug sniffing dog.

8) United States v Jodoin (672 F. 2d 232 (1982) First Circuit

A suitcase at an airport was sniffed by a narcotics detector dog. The dog did not alert. Agent’s continued their investigation, developed probable cause, absent the canine alert, applied for and were granted a search warrant. The suitcase contained several pounds of cocaine.

Although the dog did not react when it sniffed the suitcase, the agents pointed out that, according to dog handlers, the dogs are not foolproof, they are less accurate on hot muggy days and drug traffickers have found ways to mask the odors of contraband to fool detection efforts.

The court stated that the dog’s failure to react does not destroy the probable cause that would otherwise exist. It is just another element to be considered by the magistrate.

9) United States v Waltzer (682 F. 2d 370 (1982) Second Circuit

Canine sniffing is neither a “search” or a “seizure.”

A positive alert by a specially trained drug-sniffing dog established probable cause for investigatory stop of defendant who retrieved the luggage, where testimony indicated the dog had a record of 100% accuracy.

10) United States v McCranie (703 F. 2d 1213 (1983) Tenth Circuit

Use of a sniffing dog is not a search or seizure.

Where dog, which had received explosives-sniffing training and seemed to be able to detect hidden drugs, had signaled when he was by defendant’s luggage, officers could reasonably suspect the luggage contained contraband, and, thus, they could hold the luggage until they obtained a search warrant.

11) United States v Robinson (707 F. 2d 811 (1983) Fourth Circuit

Detection of narcotics by a trained dog is generally sufficient to establish probable cause to search a package.

12) United States v Lewis (708 F. 2d 1078 (1983) Sixth Circuit

Use of a trained dog to detect odors emanating from defendant’s luggage did not constitute a search.

13) United States v Puglisi (723 F. 2d 779 (1984) Eleventh Circuit

Taking these factors into consideration:

• defendant’s inexplicable traveling under an alias;
• spontaneous assumption of search position;
• excessive nervousness;
• removal of luggage from baggage cart

gave reasonable suspicion for a brief seizure of luggage.

However, the 140 minutes, which elapsed prior to a dog alerting to drugs contained in the bag, rendered the seizure unreasonable.

14) United States v Saperstein (723 F. 2d 1221 (1983) Sixth Circuit

Agents seized a checked suitcase from a defendant, after the defendant picked up the bag.

The agents tried to secure a narcotics detection dog to sniff the bag. A dog was not available for 13-1/2 hours. A canine sniff was conducted, the dog gave a positive alert and a search warrant was obtained.

The court ruled that the 13-1/2 hour detention of the bag was unreasonable.

15) United States v Williams (726 F. 2d 661 (1984) Tenth Circuit

Narcotics dog’s behavior by showing interest in suitcases at airport and by biting tags off both suitcases constituted a valid alert, justifying lawful search of suitcases and arrest of owners.

16) United States v Large (729 F. 2d 636 (1984) Eighth Circuit

Detention of defendant’s luggage at the airport for one hour before trained dog arrived to conduct sniff search for drugs was reasonable as agents had probable cause to detain the suitcase.

Agents were not required to have a dog waiting at the airport on defendant’s arrival, as they did not have probable cause before defendant arrived at the airport.

17) United States v West (731 F. 2d 90 (1984) First Circuit

When officers conduct a “sniff test” of luggage, the dog need only be available at the airport within a reasonable time.

In this case, detention and sniff test of luggage was reasonable since the dog could be obtained in no more than 20 minutes. The fact that between 45 and 60 minutes elapsed between the seizure of the suitcase and the canine sniff test, was reasonable since the suspect departed on another flight.

18) United States v Beale (736 F. 2d 1289 (1984) Ninth Circuit

Sniff of luggage at an airport by a trained narcotics detection dog is not a search where the suspect was not detained or otherwise inconvenienced, his travel plans were not interfered with, and any interference with the suspect’s possession of his luggage was minimal.

19) Moya v United States (761 F. 2d 322 (1984) Seventh Circuit

Where officers stationed themselves at an airport specifically to investigate transportation of illegal drugs, it was reasonable to expect officers to arrange to have a narcotics detector dog readily available, and therefore the three-hour seizure of defendant’s shoulder bag was unreasonable.

20) United States v Borys (766 F. 2d 304 (1985) Seventh Circuit

Law enforcement agents are not required to have a drug detection dog immediately available, but only “readily” available.

Agents’ 75 minute seizure of defendant’s luggage while awaiting a dog sniff, was reasonable.

21) United States v Attardi (796 F. 2d 257 (1986) Ninth Circuit

Airport detention of defendants was a seizure where 11 to 15 minutes elapsed between stop and dog’s sniff of luggage and where agents held the defendants’ airplane tickets and driver’s licenses.

The dog’s sniff of defendants’ luggage at the airport was not a search.

22) United States v Erwin (803 F. 2d 1505 (1986) Ninth Circuit

Seizure of defendant’s pack to subject the pack to a sniff test by drug dog did not require probable cause, but required only reasonable suspicion, where the sniff test was conducted within 45 minutes after defendant stepped off plane and defendant had opportunity to observe test.

23) United States v Pantazis (816 F. 2d 361 (1987) Eighth Circuit

Reasonable suspicion justifying detention of a traveler’s luggage arises from specific, articulable facts then known to the officer together with the rational inferences the officer may draw from them in light of the officer’s experiences.

After the luggage was detained, a receipt was given to the defendant and he left. A narcotics detection dog responded and alerted to the bag.

24) United States v Alpert (816 F. 2d 958 (1987) Fourth Circuit

Probable cause was not required to subject airline passenger’s bag to sniffing dog where police had reasonable suspicion to stop him.

Police are not required to keep their narcotics dogs at airport whenever they are observing incoming flights for drug carriers.

Detention of airline passenger’s briefcase for 50 minutes in order to subject briefcase to canine sniff was reasonable.

25) United States v Knox (839 F. 2d 285 (1988) Sixth Circuit

Detention of defendants at airport did not exceed scope and duration allowable for investigatory detention and the investigation was expedited through presence of drug-sniffing dog, which allowed sniff to be conducted as soon as possible.

Positive reaction of narcotics dog to defendants’ luggage established probable cause not only to search luggage, but also to arrest defendants immediately.

26) United States v Lovell (849 F. 2d 910 (1988) Fifth Circuit

Agent’s removal of passenger’s luggage from conveyor belt at airport after luggage had been checked, in order to permit agents to compress sides of luggage and conduct sniff test by narcotics dog, was not a seizure.

27) United States v Cagle (849 F. 2d 924 (1988) Fifth Circuit

Agent’s removal of defendants’ suitcase from conveyor belt, their compression of the suitcase to procure a scent, and their sniff of the suitcase was not a search.

Detention of the suitcase for one and one-half hours to wait for a narcotic detector dog sniff, was unreasonable.

28) United States v Gutierrez (849 F. 2d 940 (1988) Fifth Circuit

Agent’s removal of suspect’s bag from airport baggage area conveyor belt, his squeeze of bag to procure scent, and his sniff of the bag was not a search.

The suspect abandoned the bag and thus lacked standing to challenge subsequent search by a narcotic detector dog that alerted to the bag. The bag was then opened.

29) United States v Sawyer (849 F. 2d 938 (1988) Fifth Circuit

Agent’s action in removing suspect’s baggage from airport baggage area conveyor belt, compressing suitcase to procure scent and sniffing suitcase was not a search or seizure.

30) United States v Teslim (869 F. 2d 316 (1989) Seventh Circuit

Police officers had adequate reasonable suspicion to briefly detain defendant’s luggage for exposure to sniff test by trained narcotics dog.

The detention of the luggage for 20 minutes while a canine unit arrived was reasonable.

31) United States v Cooper (873 F. 2d 269 (1989) Eleventh Circuit

Agents’ detention of defendant’s luggage at the airport, without her knowledge, to permit inspection by a narcotic detector dog was based upon reasonable suspicion.

Agents’ detention of defendant’s luggage for 35 minutes, without her knowledge, in order to permit examination by narcotic detector dog was reasonable.

32) United States v Ayarza (874 F. 2d 647 (1989) Ninth Circuit

Officer had reasonable and articulable suspicion at the time he had a trained narcotics detector dog sniff the defendant’s carry-on luggage.

33) United States v Brown (884 F. 2d 1309 (1989) Ninth Circuit

Brief detention of airline passenger’s luggage, after it had been checked, but before it was delivered to cargo hold, did not constitute a seizure.

34) United States v Low (887 F. 2d 232 (1989) Ninth Circuit

Agents’ brief detention of the suspect at an airport was justified by reasonable suspicion.

The suspect was advised that his bags were being detained for a canine sniff and he could wait or he was free to go.

The suspect accompanied agents to their office where the dog alerted to both bags and a search warrant was obtained.

35)United States v White (890 F. 2d 1413 (1989) Eighth Circuit

Even though agents lacked reasonable suspicion to detain defendant’s luggage, drugs located were admissible since agents did not search the luggage until a narcotics detector dog alerted to the bags and a search warrant was obtained. This was objectively reasonable, even though legally incorrect, since the agents believed the information in the affidavit was lawfully obtained.

36) United States v Bell (892 F. 2d 959 (1989) Tenth Circuit

When officers took defendant’s package, a seizure occurred.

Only a reasonable suspicion based upon objective facts that packages contained contraband was required for detention of defendant’s package, where the detention lasted only five minutes in security office for a dog sniff.

37) United States v Scales (903 F. 2d 765 (1990) Tenth Circuit

Law enforcement authorities with reasonable suspicion that a piece of luggage contains narcotics, may detain luggage briefly to investigate the circumstances.

Seizure of the suitcase exceeded law enforcement’s authority when suitcase was seized for approximately seven hours before a drug-sniffing dog alerted to the case.

38) United States v Sterling (909 F. 2d 1078 (1990) Seventh Circuit

When agents had reasonable suspicion for this detention, the duration of the detention of the defendant’s suitcase by agents was reasonable, though agents failed to telephone narcotics canine unit prior to the actual seizure.

39) United States v Riley (927 F. 2d 1045 (1991) Eighth Circuit

Police only need reasonable suspicion, not probable cause, to separate a narcotics defendant’s suitcase from others at an airport and subject it to a dog sniff.

40) United States v Hooper (935 F. 2d 484 (1991) Second Circuit

Briefly detaining a defendant and his suitcase, and exposing the luggage to a narcotics detection dog, if conducted diligently, only requires reasonable suspicion.

41) United States v Maldonado-Espinosa (968 F. 2d 101 (1992) First Circuit

Government agents acted reasonably in seizing drugs from the defendant’s suitcases after drug-sniffing dog alerted them to the presence of drugs in the bags. One defendant voluntarily consented to opening of bags, while the other disclaimed ownership.

42) United States v Withers (972 F. 2d 837 (1992) Seventh Circuit

Officers had reasonable suspicion to seize defendant’s luggage, based on:

• defendant arrived on flight from source city;
• exhibited nervous behaviors;
• gave contradictory answers regarding where she was staying;
• consented to search of her purse but refused to consent to search of her bag;
• admitted she had previous narcotics trafficking arrest.

Detention of her bag for 15-20 minutes for a canine sniff was reasonable. The defendant was offered a receipt for the bag and told she was free to leave.

43) United States v Butler (988 F. 2d 537 (1993) Fifth Circuit

Officer’s seizure of defendant in airport was justified by reasonable suspicion.

A drug detecting canine sniffed the defendant’s bag and gave a positive alert that the bag contained narcotics. The defendant was arrested and he gave a written consent to search his bag.

44) United States v Johnson (990 F. 2d 1129 (1993) Ninth Circuit

Airline passenger’s luggage was not seized when officers removed it from airport tarmac and took it to airline office so a dog sniff test could be conducted.

Even though it took about one and one-half hours before the dog sniff and positive alert, the airline (representative) maintained custody of the bag at all times.

45) United States v De Los Santos Ferrer (999 F. 2d 7 (1993) First Circuit

Dog sniff of luggage, which was not a search, and alert by certified narcotics detecting dog, provided probable cause to detain and ample incentive to question holder of claim checks for luggage.

Defendant’s detention at airport was inevitable, regardless of improperly used x-ray search of baggage, based upon the alert on her luggage by narcotics dogs.

46) United States v Frost (999 F. 2d 737 (1993) Third Circuit

Officers had reasonable suspicion to detain defendant to submit his luggage to test with drug sniffing dog.

Eighty minute delay between seizure and sniff test was reasonable; officers called for dog immediately; it took an hour for the dog to get there; and officers gave the defendant a receipt for the seized bag.

Even though the dog failed to alert to the luggage, substantial other evidence supported probable cause.

47) United States v $191,910 U.S. Currency (16 F. 3d 1051 (1994) Ninth Circuit

When agents know the suspect will be arriving at the airport at a specific time and they do not act with diligence in procuring dog to perform drug sniff on suspect’s luggage, the detention of the luggage will violate the suspect’s rights, if the agents fail to have the dog at the airport, or at the very least, to make arrangements for the dog’s arrival at the earliest possible time.

Agents did not act with reasonable diligence to obtain dog to perform sniff-test when officers knew more than one hour before arrival of the suspect and officers held the luggage for roughly two hours.

48) United States v Carhee (27 F. 3d 1493 (1994) Tenth Circuit

Officers had reasonable suspicion to seize airline passenger’s briefcase for purpose of a canine sniff, based upon:

• Passenger lied about departure city, which was a source city for narcotics;
• Passenger claimed the briefcase he was carrying was not his and he did not know the combination to the lock;
• Passenger was seen talking to someone travelling with persons who were subject of a tip to DEA;
• Passenger became increasingly nervous during the encounter.

The briefcase was taken to the nearest dog, about 15 minutes from the airport. The dog alerted to the case, which provided probable cause for the search warrant.

49) United States v Delaney (52 F. 3d 182 (1995) Eighth Circuit

Officers had reasonable suspicion to seize defendant’s luggage, based upon:

• arriving from known source city for drugs;
• purchased ticket with cash;
• checked no luggage;
• had no carry-on luggage;
• acted very nervous;
• traveled under assumed name;
• lied to officers.

Waiting approximately 30 minutes for a canine sniff was reasonable.

Affidavit stating that drug detector dog was certified in detecting cocaine and other drugs and in past three years had alerted more than 50 times in situations where narcotics were located and that the dog’s handler was a certified drug canine handler and had received 76 hours of training in drug dog handling was sufficient to establish dog’s reliability.

50) United States v Green (52 F. 3d 194 (1995) Eighth Circuit

In order for police officers to briefly detain carry-on luggage for dog sniff search, they must have either owner’s consent or reasonable suspicion supported by articulable objective facts that the luggage contains drugs.

51) United States v Thomas (87 F. 3d 909 (1996) Seventh Circuit

After police officer’s trained narcotics dog reacted positively to defendant’s suitcase for narcotics, officer had probable cause to obtain search warrant.

52) United States v Avery (137 F. 3d 343 (1997) Sixth Circuit

Police had reasonable suspicion to justify detention of a carry-on bag to permit a canine sniff, due to:

• Just after boarding a plane, defendant stated he had thrown his ticket away;
• He lied about the origin of his trip;
• He lied about his stop-over;
• He said he could not remember the name of his motel and had no receipts;
• He consented to a search of his person, but not his bag;
• And he was travelling on a one-way ticket purchased with cash in another name only 35 minutes before departure.

The detention of the bag for 25 minutes for a canine sniff was reasonable. The police gave the defendant an option of accompanying the bag or leaving with a receipt for the bag.

Police were not required to allow the defendant to fly with the bag and subject it to a canine sniff when the plane landed.

53) 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.

54) United States v $30,670 (403 F. 3d 448 (2005) Seventh Circuit

Drug dog was a reliable detector dog at the time of his alert to airline passenger’s cash, although dog had a handful of false positives over the years, the dog in general had a high rate of success, specifically, drugs or currency were found after 97.6 percent of his alerts (2.4 percent false response rate), and drugs were found after 70.1 percent of his alerts.

The drug dog sniff methodology was not defective, agents, outside the presence of the canine handler and dog, put passenger’s money into a plastic bag and placed the bag into one of the many empty suitcases in the DEA office. The canine officer then commanded the dog to search, and the dog sniffed around the room before alerting to the suitcase, the agents removed the plastic bag containing the money from the suitcase and the dog continued to alert to the bag, not the suitcase.

Totality of circumstances supported the forfeiture of $30,670 found on airline passenger at the airport, due to these factors:

• Drug dog alerted to passenger’s cash;
• Passenger was traveling to a recognized source city (Phoenix)
• for illegal narcotics;
• Passenger had made frequent trips to Phoenix within two
• months;
• Passenger always paid cash for one-way airplane tickets;
• Passenger twice understated the amount of money he was
• carrying;
• Passenger was nervous and evasive at airport;
• An accounting of passenger’s income and expenditures
revealed that his expenditures exceeded his stated income
over $25,000.

55) 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.

B) Passenger Search:

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

Pat-down frisk of airline passenger by officers was not pretexual, officers were reasonably concerned for their safety and the safety of passengers.

During the pat down, packages were located on the suspect’s midsection. Once explosives were ruled out, 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.

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