Police use canines (commonly referred to as “K-9’s”) to sniff the exterior of homes, cars, people’s luggage at the airport, etc., in the hopes of finding contraband. These dogs are generally born and raised for the purpose of becoming K9’s, and they typically are extremely energetic and aggressive. They also tend to be highly intelligent. In fact, they are so intelligent, that it usually takes only about one day for them to be considered “fully trained.” The subject of this article focuses on the law of K9 searches.
How Are Dogs Trained to Conduct K9 Searches?
In order to train a K9, the trainer will give the dog a toy that it likes to play with, and cover it with the scent of a particular narcotic (i.e. meth, weed, cocaine, etc.). The trainer will then take the toy away from the dog and hide it. But the dog really likes the toy, and will go searching for it in order to play with it again. Of course, the dog will track the toy down by its scent, and it will become so familiar with that scent or smell of particular narcotic, that every time it gets a whiff of that smell, it will immediately get excited thinking that its favorite toy is close by.
As previously stated, getting the dog to associate its toy to the smell of a particular contraband is easy and it generally takes only a day to train the dog. However, what has proven difficult is getting the dog to ignore other scents the toy gives off and getting the dog to give a signal for ONLY the contraband.
The reality, though, is that well-trained K9’s can be extremely accurate in determining whether contraband exists, but it is also true that, in many cases, K9 training is not always done correctly or effectively. Furthermore, there is evidence that law enforcement has used “false positives” to obtain probable cause for K9 searches. In other words, police use K9 searches, and report false positives, in order to determine the contents of something they themselves have no actual right to see or search for. Indeed, that is why, when the cops don’t have probable cause, they bring in the dog to conduct a K9 search. As a Fairfax criminal defense lawyer, it is my position that, in most cases, K9 searches violate the Fourth Amendment right of privacy.
The Law of K9 Searches
In 2001, the case of Kyllo v. United States, 533 U.S. 27 (2001), came before the US Supreme Court. In Kyllo, a man had been growing marijuana inside his home. The police suspected that Kyllo was growing marijuana, but they lacked the probable cause necessary to obtain a search warrant. Instead of engaging in good old-fashioned police work, the cops decided to use infrared cameras to see inside of Kyllo’s home. The Supreme Court found that law enforcement violated Kyllo’s Fourth Amendment right to privacy when they used technology which was not available to the general public in order to view what could not be seen by the naked eye.
While the Kyllo case did not directly address K9 searches, I believe that Kyllo is both instructive and analogous when it comes to K9 searches. My reasoning is that, like the facts in Kyllo, police officers who conduct K9 searches are using a device (K9 dogs) which is not readily available to the general public in order to view something that cannot be seen with the naked eye.
People who have argued that my position on this issue is wrong generally rely on the Supreme Court’s opinion in the 2005 case of Illinois v. Caballes, 543 U.S. 405 (2005). In Caballes, the Supreme Court found that K9 searches during routine traffic stops do not violate the Fourth Amendment so long as conducting a K9 search does not unreasonably delay the stop.
Pundits have suggested that part of the Supreme Court’s decision in Caballes was predicated on a very important distinction between the facts of Kyllo and K9 searches in general – unlike in Kyllo, officers performing K9 searches are not using technology; they are using a living animal. However, this particular distinction was never directly addressed in Caballes and, to be honest, the logic in this distinction evades me. The reason why I find such logic specious is because, in reality, dogs are very similar to technology. Indeed, dogs are not people; they are not paid; they aren’t held “accountable” for their actions – their handlers are; they can’t reason the way human beings can; and they actually don’t even understand their purpose. And to be sure, this argument makes sense because, if you remember, the dog is associating the smell of narcotics with a toy it mindlessly likes to chew on. The dog has no understanding of the toy’s true purpose or function. Also, much like technology, K9’s are used to enhance law enforcement’s ability to determine whether narcotics are close by. In other words, K9’s are to the human nose what infrared cameras are to the human eye.
But instead of discussing the difference (or similarities) between a dog and an infrared camera, the Cabelles Court chose to focus on the location of the search (and not what or how it was being searched for) in order to distinguish the Cabelles case from Kyllo. But that focus on the location of the search was helpful in that illuminated the very real difference between the search of a vehicle during a lawful traffic stop and the warrantless search of a home with an infrared camera. The thrust of this distinction is that K9 searches are considered legal during the course of a lawful traffic stop because the K9 search is solely intended to determine whether the driver is in possession of narcotics – which no one has any legal right to possess. On the other hand, conducting a warrantless search of a home with an infrared camera violates the right to privacy because, unlike K9’s, infrared cameras are capable of detecting not just unlawful activity, but lawful activity as well. And the warrantless detection of completely lawful activity violates the Fourth Amendment.
Do K9 Searches Invade the Right to Privacy?
Like the answer to most legal questions, the answer to this question is “it depends.” Privacy is sort of an amorphous concept, and that is why I believe the Supreme Court’s decision in Cabelles is wrong. Whether we have a right to privacy should not be predicated on what we may possess or what we may be doing inside our homes or cars. Why does a man have a right to privacy if he has sex with his wife inside his home, but no right to privacy if he pays a prostitute to have sex with him inside his home? Why does a man have a right to privacy if he is growing tomatoes, but no right to privacy if he is growing marijuana? It is illogical to say that a person’s right to privacy is dependent upon what they may possess or what they may be doing.
In my view, we either have a right to privacy or we don’t. And if what a person has or may be doing cannot be determined by the naked eye (or the naked nose, so to speak), then using a dog, or a camera, or any other device to establish probable cause where it otherwise did not exist must be considered an unlawful search. In fact, in Kyllo, the late Antonin Scalia warned that allowing officers to use any sort of device not widely available to the public as a means of seeing more than the naked eye permits would eventually lead to the complete and total deprivation of privacy.
A More (But Not Completely) Perfect Rule of K9 Searches
In 2013, in the case of Florida v. Jardines, 569 U.S. 1 (2013), a number of police officers acted on a tip that marijuana was being grown at Jardines’ house. The police conducted a K9 search of the area immediately surrounding Jardines’ house – which is considered a part of the home itself. The Supreme Court found that this was unconstitutional because it required a warrant or permission from the homeowner – neither of which existed in the Jardines case.
As a point of emphasis, the Supreme Court clarified that its decision in Jardines – which involved a K9 search of a home – was different than its decision in Cabelles– which involved a K9 search of a car. The Court reiterated that the right to privacy in a person’s home is much greater than the right to privacy in a person’s car. The Court also stated that police officers who don’t have a warrant are only allowed to engage in the same behavior as any other civilian when it comes to searching a property. Accordingly, an officer without a warrant, much like a regular citizen, may approach a person’s house and knock. But what they may not do is bring a trained police dog to explore the perimeter of the home in hopes of finding incriminating evidence.
The Supreme Court’s decision in Jardines makes sense because, when you think about it, finding a visitor knocking on your door (even if you did not invite them) is pretty normal and routine. But finding that same visitor exploring the front yard of your house with a metal detector or a bloodhound without first asking permission is something completely different.
What is the Future of K9 Searches?
Because the Jardines ruling did not overrule the ruling in Caballes – which allowed for warrantless K9 searches of cars during routine traffic stops – some people may think the argument is over. I don’t know whether the argument is over, but in my practice, I will never stop arguing the unconstitutionality of certain K9 searches. This is especially important when considering that police officers in Fairfax, and throughout the rest of Virginia, still routinely conduct K9 searches. But when you hire me, you can rest assured that I will do everything in my power to convince the judge that any K9 searches used to obtain evidence were unconstitutional.
In time, I believe that society will ultimately absorb the fact that the war on drugs has failed, and that the constitutional violations occurring in the name of that failed war are simply unacceptable.
If you have been arrested or charged with a crime as a result of a K9 search, contact the Law Offices of Randall Sousa today for a free consultation with a Fairfax criminal defense lawyer. 571-354-6164