The Use of Drug-sniffing Dogs in Criminal Prosecutions
| Publication year | 1990 |
| Pages | 2429 |
1990, December, Pg. 2429. The Use of Drug-Sniffing Dogs in Criminal Prosecutions
It has long been recognized that the ability of dogs to detect persons or things by smell is nothing short of remarkable. There are numerous articles concerning the ability of dogs to detect the odor of narcotics and other substances.(fn1) This article reviews the history and current use of narcotics detection, or "drug-sniffing," dogs in criminal prosecutions. In particular, it discusses whether the use of a narcotics detection dog is reasonable under the Fourth Amendment, focusing on federal and Colorado decisions, foundation requirements for such evidence and reasonable suspicion issues.
Prior to 1983, few decisions were rendered concerning whether the use of a narcotics detection dog was reasonable under the Fourth Amendment. In 1983, the U.S. Supreme Court addressed the issue of whether a dog's sniff is a search in U.S. v. Place.(fn2) The Court held that law enforcement officers, armed with reasonable suspicion, could detain luggage briefly, as long as the detention was limited. The Court noted that the Fourth Amendment only protects people from unreasonable intrusions into their legitimate expectations of privacy. The Court further held that the exposure of luggage, located in a public place, to a trained dog did not constitute a search within the meaning of the Fourth Amendment, because the use of a dog neither required the opening of the luggage nor exposed what had previously been hidden. The Court characterized a dog sniff as less intrusive than the typical search and as something which would not cause embarrassment or unreasonable inconvenience.
Place was followed by a variety of lower court decisions regarding the use of narcotics detection dogs in different situations. For example, the Tenth Circuit Court of Appeals recently held in U.S. v. Morales-Zamora(fn3) that a dog's sniff of a lawfully stopped vehicle was not a search and that no individualized reasonable suspicion was required. The court further held that probable cause to search the vehicle, under the automobile exception to the warrant requirements, was supplied when the dog reacted, or "alerted," to the vehicle by scratching, chewing or barking.
In State v. Kosta,(fn4) the Oregon Court of Appeals noted a dog's sniff does not reveal all of the contents of a package and held that a sniff was not an unreasonable search. In Pooley v. State,(fn5) the Alaska Court of Appeals held that the exposure of luggage to a drug detection dog is a search under the Alaska Constitution but that it is minimally intrusive, akin to an investigative stop and frisk, which merely requires reasonable suspicion.(fn6)
Likewise, in U.S. v. Thomas,(fn7) the Second Circuit Court of Appeals distinguished between a sniff at an airport and one at the outside of a dwelling. The court recognized the heightened privacy interest in a dwelling and held that a sniff at the outside of an apartment violated a reasonable expectation of privacy.
In 1986, the Colorado Supreme Court addressed these issues in People v. Unruh.(fn8) When the defendant's home was burglarized, he lost a safe from his basement. The safe later was recovered from the burglary suspect's automobile. While investigating the burglary, police officers observed in plain view in the defendant's basement numerous items, including a scale, a mirror, spoons and a playing card. These items were considered to be the type of paraphernalia usually found in connection with drug trafficking or use. Considering this, the police subjected the safe to a narcotics detection dog search at police headquarters.
The court determined that...
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