GENERAL SUMMARY OF LEGAL ISSUES


The following opinions are issued directly from ASCT. 

ASCT issues these opinions on the basis of court proceedings, case law, and Supreme Court opinions.

We closely follow the changes that effect law enforcement teams and the jurisdictions they monitor.  These opinions are authored by ASCT and reflect opinions that cover the majority of the United States.  Some states have current court findings that may restrict the handler further. 

NARCOTIC OPINIONS

Use of canine for narcotic searches: 


A canine’s specified ability to scent greater than the human, allows for the canine to be used as a tool for detection of odors not present to the handler.  If a handler could smell (what he recognizes, through training and experience, as an illegal narcotic) something illegal coming from the interior of a vehicle, he would establish probable cause to enter - based upon his training.  Since the dog is able to smell amounts that the handler cannot, the canine tool is able to convey to the handler that he smells the illegal narcotic.  Thus the canine is simply an extension of the handler’s ability.

Probable cause:

An alert is anything the canine does when it smells a narcotic.  Thus, when the handler recognizes the canine alert - he establishes that the canine has located an illegal narcotic.  This is the same as if the handler had smelled the narcotic himself.  Therefore, probable cause is established.

Scan is not a search:
Scans are when the canine is moved about free space and allowed to use its’ scent ability to smell for narcotics, without disturbing the personal property of the individual.  A search is when the canine, handler, or officer, is allowed to disturb, look through, or impede the progress of the individual and property.

Vehicle searches:
The handler can use the canine to scan for illegal narcotics in any location or place where the handler has due cause and right to be.  In short - if the handler has a right to be there, the canine has a right to be there because the canine is an extension of the handler’s ability.

Scans on the exterior of a vehicle are warranted and acceptable, providing the vehicle is not located on private property that is not a PVA.  Scans are not permitted of vehicle interiors unless there is consent from the driver or probable cause has been established.

Parking lots (PVA - Public Vehicular Areas) are open to scans by the canine without consent of the driver.

Vehicle traffic stops warrant the canine to be used to scan the exterior if there are reasonable grounds for the vehicle stop.  When a law enforcement officer stops a vehicle - the driver is being detained and thus impeded from his movement.  Therefore, a cause of the stop must be reasonable and prudent.  A handler, who responds to a vehicle stop already in progress, must assure that the detained driver is still within a reasonable time for the suspicion or charge.  This means that if the driver has not been charged and there is not a specified suspicion of the presence of illegal narcotics - the driver cannot be detained beyond the normal operation time of the officer who stopped him. 

A canine is free to search the interior of the vehicle if an arrest has been made (search incident to arrest).  The canine can also be used in situations where the vehicle has been impounded, pending investigation.

If a vehicle is to be searched and a driver gives consent, the canine can be used to search the interior of the vehicle. However, the driver has full rights to withdraw consent at any time.  If the driver withdraws consent - the handler must immediately remove the canine from the vehicle unless he has already established probable cause by the proper alert of the dog.

If the driver refuses consent, the handler may scan the exterior of the vehicle with the canine.  If the canine does not properly alert (canine’s trained and tested alert), the handler must not enter the vehicle.  If the canine does alert to the handler that there is narcotic scent coming from the vehicle, the handler may open the vehicle and allow the dog a detailed search.

A driver can search the vehicle if the canine alerts anywhere on the exterior of the vehicle.  This is because scent gases will travel and the dog may smell the narcotic in a place different from the precise location of the narcotic.

Persons:

Canines cannot be used to search persons for narcotics because the canine can be viewed as intimidating.

If the canine should happen to be in a validated location and not there with the intent to search persons - but happens to alert to an individual, the handler may accept the alert as valid and search the person himself.

A canine that is stationed at a door or exit of a public facility cannot be used to search for narcotics during that stationing. 

Schools:

The canine can be used in any location where the administration allows the search.  Schools are represented by the administration.  Lockers, parking areas, classrooms, Etc. are property of the school and can be searched with the canine.  Vehicles in the parking areas can also be searched if the school student (parents) has signed a statement of search rights while on school property.   Canines cannot be allowed to search children in or out of the classroom.

Apartments and Homes:

A place of residence cannot be searched with a canine unless a warrant is obtained. Though arguable, ASCT feels this includes vehicles such as travel trailers, campers, Etc.  Though with the travel vehicles, the exterior can still be used as a free space scan to establish probable cause.  However, ASCT recommends that in these cases (where the dog alerts to the exterior) the handler seek a warrant.

Hotel:

Any place where a person is under a lease, whether permanent or one night, that place is a place of residence.  For hotels, the hallways, parking lot, and other public areas are open to the canine scan.  However, the interior of the hotel room should be treated as a residence and the canine should only be used with a warrant or consent by the occupying party.  Note:  An owner is not necessarily the occupier.  The person with the right to give consent is the party who is on the lease.  Once a lease is signed, the owner gives up authority of searches within that property.

Public transportation:

A bus, aircraft, trains, Etc. is open to searches from the canine providing that the administrator of the vehicle has consented to the search.  However, a person’s personal baggage, cabin, clothing, cannot be searched without a proper alert from the canine and probable cause has been established.  For example:  If a passenger is residing in a train cabin, that cabin cannot be searched unless the canine alerts to the door and even then - a warrant is most suggested.

Postal Searches:

Scans of packages should be completed with the questionable package being placed in line with six other packages and scanned.  Should the dog alert to a package, probable cause is sufficient for a warrant to be obtained or an authority (see below) to open the package.  It is recommended that two scans be made with packages to proof the package.

The United States Postal Service has complete authority to open suspicious packages.  Postmasters and inspectors regularly operate with a very strong level of authority.  Thus, the handler who is requested to use the canine to scan a package is well within his reasonable work to complete the scan.

 UPS and FED X have terminal managers and supervisors who will request scans.  The same methods apply in these cases, as they do at a postal facility.  However, the handler will want to assure that the package is only opened if a warrant is obtained or the terminal manager opens it himself.

Tractor Trailer Transportation:

A driver who operates a transport vehicle has the authority of consent of the truck and trailer.  However, unless the driver owns the truck and trailer, the company who owns the equipment can also allow consent for a search - despite the driver.  Thus, if the handler makes phone contact with the company and is issued consent (supervisor authority) for equipment they own - the search is warranted.

Currency Searches

There is debate among the courts that a positive canine alert to currency may not be probable cause due to wide spread contamination of money with drug residue.

The dog sniff must be coupled with other supporting factors, such as potential indicators of drug trafficking or use, etc.

Currency sniffs are the only area where a positive canine alert is not probable cause. It is a reasonable suspicion factor or “strong evidence.”

REMEMBER THIS: Narcotic detector dogs alert to odor. This includes residue (see residual odors). However, the dog is trained to ignore micro – residual amounts such as when a training vehicle is used one day and again a couple days later. In these cases, the dog is trained to possibly notice but not alert unless a larger amount is present.

Currency in circulation does not contain enough narcotic scent for a narcotic detector dog to alert to.

Only currency tainted with the odor of controlled substances in a requisite level of contamination will trigger a positive canine alert.

K9 LIABILITY FOR WARRANTED BITE SITUATIONS

Use of force continuum:
A trained canine is placed at the same level as an impact weapon, below deadly force.  The reason for this placement is that a canine can cause the same level of injury (bruising, lacerations, contusions,) as an impact weapon. 

Circle of force:
Agencies that have adapted the circle of force will find the canine readily available in discretionary needs.  However, circle of force doesn’t change the level of force that a canine places.  Therefore, the canine will still be viewed as a level of the impact weapons.

Authority of using dog to bite:

A canine can only be used to bite when a suspect poses a significant risk to the handler, another officer, or the general public.  This is not deadly force.  There is no need for immediate/imminent threat.  Instead, it is significant risk. For example: A fleeing suspect, who is wanted on two rape warrants, is a significant risk to commit further rapes unless he is apprehended.  However, sending the dog to apprehend a fleeing suspect is discretionary to the handler’s situation, knowledge of the suspect, and proof of significant risk.