By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from a canine handler in Nevada who was asked to assist with parcel interdiction at a bus terminal. The other officers want him to run his dog around the luggage when the bus comes in. Anthony works through whether that is legal, and where the line sits between a free sniff and a seizure.
Is a dog sniff of luggage a Fourth Amendment search?
Hello everyone. It’s Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat from our beautiful new studio.
All right. So this question comes from an officer in Nevada. Basically the gist of this is that he’s been asked to assist with some parcel interdiction because he’s a canine handler. And the other officers, they want him to, you know, run his dog around some luggage when the bus comes into the terminal. And he’s wondering if that’s legal.
I think that the officers here instigating this probably have a tip that somebody on the bus is transporting a large amount of narcotics, and they want to see if they can do it the easy way, which is get a dog alert. Then we can kind of go from there.
All right. So a couple ground rules. Number one is that we know from Illinois versus Caballes that the sniff itself is not of a Fourth Amendment dimension, right. There is no privacy interest in contraband. So when the dog, if the dog lawfully sniffs a piece of luggage, that sniff in itself is not a Fourth Amendment issue.
When does moving someone’s bag become a seizure?
Okay, the next thing we have to know is, do we actually have to seize the luggage in order to facilitate the sniff? See, that’s going to be the issue in this case, right. Because if we don’t have probable cause that a particular person on the bus is engaged in criminal activity, and that evidence of that criminal activity is in their luggage, if we don’t have the probable cause, which would mean we have the Carroll doctrine, if we don’t got that and we just want to kind of pursue especially like a free air sniff, well the next question is, are we seizing their luggage, right.
Seizing property under the Fourth Amendment, and this comes from a case called Jacobsen, is essentially when you intentionally interfere with a person’s possessory interest, and that interference meaningfully interferes with their possession, right. Okay. So that’s a roundabout way of saying if you mess with people’s stuff and they cannot use their property as intended, well, essentially that’s going to be a Fourth Amendment seizure.
Can you sniff the bags while they are still on the ground?
Okay, so let’s go back to our bus. If the bus driver is unloading the luggage and the officer just runs his dog around the luggage before anybody’s trying to pick up their luggage, let’s just say we have kind of a lull here, right, people are getting off the bus and the dog just sniffs the luggage, then we should be okay.
If the dog alerts, then that gives us PC. We would still need a recognized exception. I would be careful of using a motor vehicle exception here, because the luggage is not on the bus anymore. The alert will come after the luggage has been removed from the motor vehicle. However, that would give you a probable cause. We can kind of go from there.
Now, if somebody’s trying to come over and grab their luggage, and they cannot grab their luggage because you have this dog sniffing their luggage, well, that is going to be, I believe, a deprivation of their property, right. Because you are now meaningfully interfering with the possessory interest. They would love to come over and just grab that luggage and kind of walk away, but they can’t do it because there’s a 100 pound Malinois sniffing their luggage. Got to be careful with that.
What if the passenger is not standing there waiting for the bag?
What if the passenger is, you know, talking to another passenger or whatever, not looking to get their luggage right now, or going to the restroom, and you take out their bag and you move it in order to facilitate the sniff? I don’t think that’s going to be a problem. That’s not a meaningful interference with a person’s possessory interest. They’re not looking to kind of possess it right now. Other people are handling their luggage, the driver and so forth, they’re not there. I don’t think that’s going to be an issue.
So that same type of scenario happens frequently in the UPS and FedEx context, where a handler will take a package off a conveyor belt, have it sniffed, and put it back if it doesn’t alert. There’s never been a case, there are some states that are more restrictive like Minnesota, but generally speaking there are really no cases under the Fourth Amendment that have found that that is a Fourth Amendment seizure, because again, there’s no meaningful interference.
Can you search every bag if the dog alerts on the bus itself?
A good case is an Eleventh Circuit case from 2016. Essentially, this is a case where a canine handler walked his dog around the bus. It alerted to the passenger storage area. They got consent from the passenger at issue, the defendant here, and ended up searching it, and they found narcotics. So this wasn’t a search under the motor vehicle exception.
You have to be a little bit more specific about where the alert is coming from. I’d be very careful about a dog alerting on a Greyhound bus and then saying to yourself, I can search everybody’s luggage. You should try to source the alert by pulling the bags out and so forth.
What can you do with only reasonable suspicion?
The last thing is, all right Anthony, you talked about not having PC, you talked about having PC, what about with reasonable suspicion? What can we do there?
All right, with reasonable suspicion you are most likely going to be able to remove the luggage from the bus and have it sniffed by the canine. Yes, that is a dispossession, right, in a Fourth Amendment sense. However, it is a minimal interference with their property. You’re trying to confirm or dispel your reasonable suspicion, and canines are often used to do that.
United States versus Place is a good kind of go-to Supreme Court case that talks about issues with canines and luggage and reasonable suspicion and so forth. That basically you could seize a piece of luggage if you have reasonable suspicion for a canine, but the canine has to be diligently brought to the scene and so forth.
Wow, we covered a lot here. So at the end of the day, the takeaway here is that we have some options here, but we got to be kind of careful.
The short version
- The sniff itself is not of a Fourth Amendment dimension. There is no privacy interest in contraband.
- The real question is whether you had to seize the luggage in order to facilitate the sniff.
- Seizing property is when you intentionally interfere with a person’s possessory interest, and that interference meaningfully interferes with their possession.
- If the bags are on the ground in a lull and nobody is reaching for them, run the dog. We should be okay.
- If a passenger is trying to grab their bag and cannot because your dog is on it, that is going to be a deprivation of their property.
- Moving a bag to facilitate a sniff when the owner is not there for it is not a meaningful interference. Same as the UPS and FedEx conveyor belt scenario.
- An alert after the bags are off the bus gives you probable cause, but be careful using the motor vehicle exception, because the luggage is not on the bus anymore.
- Do not take an alert on the bus itself as permission to search everybody’s luggage. Source the alert.
- With reasonable suspicion you can most likely remove the bag and have it sniffed, but the canine has to be diligently brought to the scene.
- Some states are more restrictive, like Minnesota. These are the Fourth Amendment rules.
Now before I leave here, guys, a couple things. Number one is, if you’re a police officer and you have not been to one of my live webinars, pretty much every Wednesday we do them around 6 p.m., whatever time zone we’re kind of traveling. Other instructors teach these, Zach Miller, John Wiehn, and so forth. I would love for you guys to join us. Go to Blue to Gold and check out the webinar schedule. Again, almost every single week we have a free webinar, about an hour.
Also, if you like what we’re doing here, like, subscribe, share with your friends, and until next time, my friends, you stay safe.
Related from Blue to Gold
- K9 Sniffs in Parking Lots
- Drug Sniffing Dog in Motel or Apartment Hallway
- Searching Bags Outside the Vehicle Under Carroll
This article is an edited transcript of Roadside Chat EP#859. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
