Ever wondered about the legality of a K-9 search?
The Fourth Amendment of the Constitution guards against unreasonable search
and seizures. In providing individuals' protection, it also requires search
warrants be supported by probable cause. This probable cause they speak of "exists
when reasonably trustworthy facts and circumstances within the knowledge
of the officer on scene would lead a man of reasonable prudence to believe
that the instrumentality of a crime or evidence of a crime will be found."
McNairy v. State, 835 S.W.2d 101 (Tex.Cr.App. 1991). To put it simply, the police officers
have to have pretty solid knowledge that something strange is going on.
And these restrictions on investigative searches allow for the protection
of our privacy.
Big round of applause for the Fourth Amendment!
But now having that knowledge, it may come as bit of a surprise to find
out that having a trained K-9 sniff the outside of a vehicle is not considered
a "search" within the meaning of the Fourth Amendment.
Mohmed v. State, 977 S.W.2d 624 (Tex.App.—Fort Worth 1998,
pet. ref' ). Thus, the Fourth Amendment does not protect it! I know what you're
thinking: How can a dog have the right to determine what is inside a vehicle
if the police, at the time, don't have the right to know?
There are different ways in which a trained K-9 can tell the police what
is inside your property without them ever having probable cause.
One way is if a trained K-9 is simply walking by, let's say at an airport
while you're standing in line, an alert to your bags can allow police
to then search your belongings. This is because trained K-9 searches are
sui generis. Illinois v. Caballes, 125 S.Ct. 834 (2005). This Latin phrase means that a K-9 search is in
a category all on its own because it only discloses the presence of
narcotics. Because it only determines the presence of narcotics, and it is not invasive,
it is allowed without a warrant or probable cause.
The second way a dog can give police permission to search inside your property
deals specifically with vehicles. Timing becomes a big factor when determining
whether a K-9 sniff around a vehicle violates an individual's Fourth
Amendment rights. We've already established that a K-9 sniff is not
considered a search violating an individual's rights. But the stopping
of a vehicle constitutes a "seizure."
State . Sanchez, 856 S.W.2d 166 (Tex.Cr.App. 1993). If the police keep you "seized"
for an unreasonable amount of time waiting for a K-9 unit, it becomes
an investigatory vehicle stop instead of a run-of-the mill traffic stop.
This makes a world of difference!
In order for the police to conduct an investigatory vehicle stop, it needs
to be because the police have reasonable suspicion. Reasonable suspicion
can be established by an anonymous tip or circumstances approaching the
vehicle, such as the odor of marijuana.
Mohmed, 977 S.W.2d 624.
Reasonable suspicion = temporary detention and "seizure" allowed.
No reasonable suspicion = no time to allow the dogs to come in.
Another hiccup in the process is the distinction between an "alert"
and an "interest" by the K-9. An alert by a trained K-9, as
mentioned above, allows a police to search your property. An officer needs
to be able to identify and articulate specific, reasonable examples to
satisfy a trained K-9 action as a valid alert. And despite the need for
the officer to confirm the alert, it can simply be the dog's change
in behavior, not necessarily a bark or point.
K-9 searches are a tricky thing. Think of them as a member of the police
force with an incredibly good sense of smell. The police sniffing around
your car isn't unconstitutional and neither is man's best friend.