Lead Opinion
Opinion
J. — (lа) May law enforcement officers use police-trained dogs to detect the odor of narcotics emanating from transported containers in the baggage areas of public airports? Under the circumstances herein presented we conclude that they may and that the limited and nonintrusive olfactory investigation performed in this case did not constitute a “search” thereby invoking the constitutional limitations imposed by the Fourth Amendment to the United States Constitution or article I, section 13, of the California Constitution. Accordingly, we will affirm defendant’s judgment of conviction.
An amended information filed in the San Diego Superior Court December 12, 1979, charged defendant with: (1) transporting marijuana (Health & Saf. Code, § 11360, subd. (a)); (2) possessing marijuana for sale (id., § 11359); and (3) possessing concentrated cannabis (id., § 11357, subd. (a)).
Following the denial of defendant’s motion to suppress under Penal Code section 1538.5, he entered a plea of guilty to the charge of transporting marijuana. He was given a 3-year suspended sentence with 60
On August 8, 1979, Officers Cooper and Flores of the San Diego Police Department’s Narcotics Task Force (NTF) were on duty in the nonpublic portion of the baggage area at the San Diego Airport. With full permission of the airport authority and the airlines, Officer Cooper, assisted by a fully trained and qualifiеd narcotics dog, “Corky,” was checking, for evidence of narcotics, all luggage from certain inbound aircraft flights originating in Florida. Defendant, flying to San Diego from Dayton, Ohio, at tlfe Dallas-Fort Worth Airport had boarded a flight originating in Miami. The officers had no previous information that defendant’s luggage contained any contraband, nor was there any other reason to be suspicious of his luggage.
After Corky “alerted” to defendant’s suitcase, an identifying tape was placed on it and it was transported to the baggage claim area with the rest of the luggage from the flight. When defendant picked up the suitcase, Officer Cooper identified himself and requested that defendant accompany him to an airport office for an investigation. Defendant agreed, and after having tieen informed of Corky’s “alert,” was asked to consent to a search of his luggage. Defendant orally agreed, but before he signed a written consent form Officer Cooper told him that the officer had never failed to get a warrant under similar circumstances. Defendant was advised of his Miranda rights; the suitcase was opened and found to contain marijuana.
The trial court made the following findings:
1. On the day in question, law enforcement officers and Corky were allowed to be anywhere at the airport including the baggage handling areas.
2. Both Corky and his handler, Officer Cooper, were fully trained in narcotics detection. j
3. Based on information as to the flow of narcotics from Florida to San Diego, the agents had reason to believe narcotics could be found in the luggage of incoming passengers from planes originating in Florida.
5. The sniffing of the luggage by Corky in the baggage area, and away from public view, was a minimal intrusion justified by the agents’ reasonable efforts to protect the public from the flow of narcotics from Florida.
6. The use of Corky to alert the agents to the suitcase was reasonable.
7. Defendant voluntarily consented to a search of his suitcase after being contacted by law enforcement.
8. The motion to suppress should be denied.
To the extent these findings resolve questions of fact, they must be upheld on appeal if supported by substantial evidence; yet we exercise our indeрendent judgment in reviewing the legal question whether the officer’s conduct was reasonable under the Constitution. (See People v. Leyba (1981)
The NTF justifies its search of all luggage off incoming flights originating in Florida on its experience with a “high” frequency of narcotics seizures in luggage from such flights. During 1979, 25 narcotics cases involved incoming flights to San Diego. Of those 25 cases, 14, or 56 percent, were from flights originating in Florida. During the same period there were 5 flights a day from Florida to San Diego, or a total of 1,825 flights. Accordingly, less than 1 percent of these (approximately .76 percent) flights were found to have narcotics aboard. The record also demonstrates that the NTF has established excellent contacts in Florida, both among law enforcement officers and informаnts.
Defendant contends that Corky’s smelling of his luggage constituted an unreasonable exploratory search. His claim is supported by several California appellate cases which have invalidated similar canine procedures unless preceded by prior information or a reasonable suspicion that narcotics may be present in the subject area. (See People v. Denman (1980)
All of the foregoing cases are premised upon the proposition that similar canine olfactory ¡investigations constituted a “search,” the propriety of which would bе governed by Fourth Amendment principles. A recent appellate case, however, People v. Matthews (1980)
We recognize that one recent federal case has departed from the foregoing line of authorities and has held that the use of trained police dogs to sniff luggage is a search for Fourth Amendment рurposes. (United States v. Beale (9th Cir. 1982)
It is commonly accepted that a “search” is a governmental intrusion uрon, or invasion of, a citizen’s personal security in an area in which he has a reasonable expectation of privacy. (See Terry v. Ohio (1968)
Did Corky breach any reasonable, protectable expectation of privacy as to any odors emanating from defendant’s concealed contraband? We think not. Rather, we share the views recently expressed by the Fifth Circuit Court of Appeals in Goldstein, supra. In rejecting such expectation, it held that although an airline passenger may reasonably anticipate that the contents of his luggage will not be exposed in the absence of consent or a search warrant, “the passenger’s reasonable expectation of privacy does not extend to the airspacе surrounding that luggage.” (
In our view, the escaping smell of contraband from luggage may be likened to the emanation of a fluid leaking from a container. The odor is detectable by the nose, as the leak is visible to the eye. We discern no constitutionally significant difference in the manner of escape, and conclude that any privacy right is lost when either escapes into the surrounding area. Given Corky’s training, our conclusion is not altered by the fact that it is his nose and not his handler’s which detected the odor.
From the foregoing, wje conclude that, at least within the context of an airport luggage search, passengers (and others transporting narcotics) have no reasonable expectation of privacy which would preclude the use of sniffer dogs such as Corky even when there is an absence of prior specific suspicion that narcotics are present.
We add two cautionary notes. Prior appellate cases quite properly have required an adequate demonstration of the dog’s training and experience in narcotics detection before the dog’s reaction to a particular suitcase or other object is admitted into evidence. (E.g., People v. Evans, supra,
Moreover, as the People readily acknowledge, a police dog’s positive reaction to a suitcase ordinarily is not sufficient cause to search and seize it without a warrant. In the absence of either exigent circumstances or consent by the owner, the investigating officers must first obtain a search warrant upon a proper showing of probable cause. (See People v. Denman, supra,
The trial court found that defendant had consented to a search of his luggage after Corky “alerted” to the presence of narcotics therein. Although defendant maintains that his consent was involuntary, being a “mere submission to authority,” this was a factual matter which the tri
The judgment is affirmed.
Mosk, J., Newman, J., Kaus, J., and Broussard, J., concurred.
Dissenting Opinion
Dissenting. — A rose by any other name would not make this a “plain smell” case. The odor which the dog Corky perceived was not “detectable by the nose” of any police officer. (See maj. opn., ante, at p. 342.) In holding that no search occurs when the government uses specially trained animals to detect that which is undetectable to human senses, the majority casts its lot with a number of courts, mostly federal, whose decisions on this issue hаve been justly criticized as “short on reasoning” and “unsound.” (1 LaFave, Search and Seizure (1978) p. 283.)
It is neither wise nor necessary for this court to join this “unfortunate tendency.” (Id., at p. 286.) Unwise, because the “[tjotally unrestrained use of trained dogs ... would not be consistent with the kind of open society to which we are committed. It would be intolerable if the police, in no way limited by the Fourth Amendment, were free to utilize dogs to undertake ‘a wholesale examination of all baggage in the hope that a crime might be detected’ or ‘to roam the streets at will with trained dogs or sensor instruments, detecting the odor of marijuana and arresting persons at will as a result.’” (Ibid., fns. omitted.)
Nor is today’s holding justified by logic or precedent. The majority’s conclusion has been rejectеd by virtually all of the commentators nationwide
I must respectfully dissent.
I.
In order to appreciate the significance of the issues in this case, it is necessary to begin with a basic observation. The California Constitution prohibits “unreasonable seizures and searches” (art. I, § 13), and the Fourth Amendment to the federal Constitution contains a similar proscription. Thus, the present appeal and virtually all “search” cases pose two general issues for potential resolution. First, it must be determined whether a “seizure” or “search” occurred within the meaning of the California and/or federal Constitutions.
Thus, this court needs to exercise particular caution in deciding which police actions are not searches or seizures. Resolution of such questions “should be viewed with an appreciation that to exclude any particular police activity from coverage is essentially to exclude it from judicial control and from the command of reasonableness, whereas to include it is to do no more than say it must be conducted in a reasonable manner.” (Amsterdam, supra, 58 Minn.L.Rev. at p. 393, fn. omitted.) “[T]he push must be in the direction of applying the ‘search’ appellation to those varieties of police conduct which wе are not prepared to leave totally uncontrolled.” (1 LaFave, supra, at p. 269.)
By its judgment and reasoning in this case, a majority of this court is apparently “prepared to leave totally uncontrolled” the government’s use of trained detector dogs. I use the word “apparently” because nowhere in its opinion is there reflected any appreciation that this is a necessary consequence of its holding.
This shortsightedness might seem, at first glance, to be shared by the cases cited in the majority opinion as holding that police use of detector dogs is not a search. Closer inspection reveals that this is not necessarily so. While the cases do perhaps state that this particular police activity does not amount to a search, the underlying reasoning is generally tied to the reasonableness of the activity and the existence of specific cause to suspect the presence of contraband.
Therefore, it requires a blind leap of faith for the majority to jump from these cases to the conclusion that the same results would have been reached if, as in the present appeal, there were no “particularized cause” or “reasonable suspicion” to justify the police activity. Indeed, the Ninth Circuit Court df Appeals authored one of the cases which the majority believes supports today’s result (United States v. Solis (9th Cir. 1976)
II.
What, then, is a “search”? At one time it was considered that a search was a physical intrusion or trespass by government agents into a constitutionally protected area. However, with thе Supreme Court’s landmark decision in Katz v. United States (1967)
On appeal, the parties framed the issues in traditional terms: Was the telephone booth a constitutionally protected area? Was physical penetration required to invoke the Fourth Amendment? The court, however, “decline[d] to adopt this formulation of the issues.” (Id., at p. 350 [
The court further ruled that “no constitutional significance” was attributable to the fact that the electronic device used against Katz “did not happen to penetrate the wall of the booth.” (
Thus, under Katz, the determination of whether or not the Fourth Amendment applies to a particular governmental activity depends very little upon the type of activity itself. The nаture of the activity may be relevant to a determination of reasonableness, but, in determining Fourth Amendment coverage as a threshold matter, the primary focus is upon the interest to be protected, rather than upon the means of vio
Consistent with Katz’ determination as to the scope of the Fourth Amendment are subsequent decisions by California courts, as well as those of other jurisdictions, finding “searches” in a wide variety of “nonintrusive” contexts. Thus, in People v. Hyde (1974)
Similarly, police use of binoculars to observe the interior of an office or a home has been held tq be a search. (See, e.g., People v. Arno, supra,
Katz and its progeny would seem to compel the conclusion that a search occurs when a specially trained detector dog is used by police to determine whether luggage contains contraband hidden within. Clearly, the use of the dog “operates to search” the luggage and “reveаls the presence” of contraband inside. (Cf., People v. Hyde, supra,
That there is in fact a constitutionally justifiable privacy right as to the contents of luggage is no longer in doubt. (Arkansas v. Sanders, supra,
Nor can Fourth Amendment coverage be denied under the portion of the Katz decision which excludes from constitutionаl protection that which “a person knowingly exposes to the public.” The scent detected by the dog Corky was undetectable to human beings. The officers in this case were relying wholly on the perceptions of Corky and not on their own faculties. Consequently, the luggage’s contents were not “exposed to the public,” unless we are to interpret “the public” as meaning specially trained dogs. Nor can it be said that appellant “knowingly” exposed the contraband to the public, since he, not being a specially trained dog himself, would not have known that any aroma was escaping from his luggage.
It is perhaps true that appellant might have better ensured his privacy by resorting to extraordinary measures to prevent thе escape of even one marijuana molecule. The Fourth Amendment does not require that of him, however. This court has specifically rejected the notion that “in order to preserve a modicum of privacy,” a citizen need avail himself of “a light-tight, air-proof box.”
A majority of this court, however, does not agree. In an opinion remarkable for its failure to I mention even once the Katz decision or any of the United States Supreme Court’s cases that discuss the constitutional protections accorded luggage (Chadwick, Sanders, Robbins) or this court’s own magnetometer decision (Hyde), the majority tenders two arguments as justifying its conclusion that there was no search.
First, it notes that a ddg’s nose “react[s] only to contraband” and thus is more discriminate than a magnetometer. However, as Judge Mansfield wrote in concurring opinion in United States v. Bronstein, “The fact that the canine’s search is more particularized and discriminate than that of the magnetometer is not a basis for a legal distinction. The important factor is not the relative accuracy of the sensing device but the fact of the intrusion into a closed area otherwise hidden from human view, which is the hallmark of any search. If, as we have held, examination of carry-on luggage and individual passengers by a magnetometer or X-ray machine amounts to a search within the prohibition of the Fourth Amendment because it discloses hidden items within areas where there is a normal expectation of privacy, then the intrusion of a
The majority further contends that “the escaping smell of contrаband from luggage may be likened to the emanation of a fluid leaking from 4 container.” (Maj. opn., ante, at p. 342.) Thus, the argument runs, the “odor is detectable by the nose” in “‘the airspace surrounding that luggage,”’ an area to which constitutional protections assertedly do not. apply. (Quoting United States v. Goldstein, supra,
It should be noted that in Katz, as in the present case, the government agents were merely gathering that which “leaked” out of the phone booth into “the airspace surrounding” the telephone booth. Nevertheless, the Fourth Amendment was held to apply to their activities. Similarly, in People v. Arno, supra,
The logic of the majority opinion “tortures” the plain smell doctrine. (See Comment, supra, 13 San Diegо L.Rev. at p. 427.) Nor is this court’s decision supported by a careful reading of the precedent upon which the majority purport to rely. (See, dis. opn., ante, at pp. 345-346
III.
That the use of the detector dog constitutes a search within the meaning of the Fourth Amendment does not end our inquiry. The Fourth Amendment prohibits only those searches which are “unreasonable.” (See ante, fn. 4.) It is to this question I must now turn.
There are several factorjs which weigh in favor of a finding of reasonableness. The search was ápparently based upon police department policy, not upon the subjective discretion of an individual officer acting in the field. This policy was narrow in the sense that it apparently directed dog searches of only those, domestic flights originating in Florida. As to these flights, the department had had some success in locating contraband in the past. The dog sniff search was directed at inanimate and unattended objects, not at persons or their immediate effects. Finally, the search was limited in scope in that it revealed only the presence of contraband, not any innocent items.
On the other hand, the search was conducted without a warrant. (But see People v. Hyde, supra, 12 Cal. 3d at pp. 168-169.) It was surreptitious. By the officers’ own accounts, there was “no particular information” about contraband in appellant’s luggage or anywhere on the flight on which he arrived, nor ány suspicions directed at any of the passengers. The asserted justification for the search was minimal, at best. It was premised primarily on a prediction based upon past experience that there was a three-quarters of 1 percent chance that someone’s checked luggage would contain contraband.
Upon balancing the competing factors, the dog search in this case cannot be upheld. In my view, the critical factor is the general, exploratory, dragnet nature of the search. Such searches have never been upheld by the courts of this state.
The “general rule” is that Fourth Amendment intrusions must be justified by probable cause. (Dunaway v. New York (1979)
In California, we have been no less careful. In People v. Hyde, supra, this court refused to create a third level of suspicion, lower than that prescribed in Terry or Mickelson, in order to justify a minimally intrusive magnetometer search. (
It is unnecessary to décide which of the two standards — probable cause or Terry-Mickelson — is appropriate for anаlyzing dog sniff searches such as that present in this appeal. The circumstances of the search here meet neither test.
This court has already expressed “grave doubt” that “an approximately 6 percent probability of discovering weapons” would satisfy the Terry standard. (People v. Hyde, supra,
Moreover, I have serious reservations as to whether a purely statistical probability, unconnected to a particularized suspicion in a specific case, could ever by itself! justify a search. I agree with those courts which have condemned dog sniff searches that were not based оn “some preknowledge or reasonably strong suspicion that contraband is to be found in a particular location”
For each of these reasons, the dog sniff search in this case was unreasonable. **
Notes
With considerable surprise,:! find the majority opinion citing to two law review articles as “authority supporting: th[e] conclusion” that “‘[t]he use of narcotic trained detector dogs ... is neither an intrusion nor a search.’” (Ante, at p. 340, italics deleted.) Actually, both articles conclude quite the opposite.
The first article cited argues that “[i]n most situations, the use of a drug detection dog should be [considered] a search.” (Comment (1976) 13 San Diego L.Rev. 410, 426.) The comment criticizes contrary federal authority because it “tortures” the constitutional theory which it purports to apply. (Id., at p. 427.)
Similarly, the second article concludes that the “preferable” decisions are those which find the use of dogs to detect hidden objects to be searches. (Note. (1976) 44 Fordham L.Rev. 973, 989.) It criticizes federal authority to the contrary as.“a.drastic erosion of an individual’s right to privacy.” (Id., at p. 990.)
The majority opinion notes the existence of these decisions in passing (ante, at pp. 339-340) but does not deal with them thereafter.
Henceforth in this opinion, as is the frequеnt practice in this court, the term “Fourth Amendment” is used as a convenient shorthand reference to the search and seizure provisions of both Constitutions, unless the context indicates otherwise. Since these provisions are “amplified by the specific right of privacy guaranteed by article I, section 1, of the California Constitution” (see People v. Arno (1979)
It is readily apparent that the constitutional provisions regarding unreasonable seizures and searches are “stated in general terms which are not self-defining.” (See 1 LaFave, supra, at p. v.) The burden has fallen to the courts to give “concrete and contemporary meaning to that brief, vague, general, unilluminating text ....” (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn. L.Rev. 349, 353-354.) Thе courts have striven to accomplish this by setting forth specific rules, such as the rule that a search is “unreasonable” unless authorized by a warrant or one of the exceptions to the warrant requirement.
I recognize, of course, that other constitutional guarantees place checks upon police activities to some extent. However, as one commentator has noted, “notwithstanding all of them, an enormous range of police power stands unrestrained and subject to abuse.” (Id., at p. 378.)
The primary exceptions are two “border search” cases, where the normal rules regarding the reasonableness of a search do not apply. (People v. Matthews (1980) 112
In a third case, a court found that under the facts presented, the police’s use of a dog “would probably meet the reasonable suspicion standard," but it based its decision on “no search” grounds. (United States v. Goldstein (5th Cir. 1981)
The federal cases are in accord. (See, e.g., United States v. Albarado (2d Cir. 1974)
Conceivably, it could be argued that knowledge by appellant of the widespread use of detector dogs would destroy his justifiable expectation of privacy. Justice Mosk has persuasively rebutted that argument, however: “such a concept would sanction an erosion of the Fourth Amendment by the simple and expedient device of its universal violation.” (People v. Hyde, supra,
“An actual, subjective expectation of privacy ... can neither add to, nor can its absence detract from, an individual’s claim to fourth amendment protection. If it could, the government could diminish each person’s subjective expectation of privacy merely by announcing half-hourly on television that 1984 was being advanced by a decade and that we were all forthwith being placed under comprehensive electronic surveil
See cases collected in majority opinion, ante, at page 340.
See, e.g., United States v. Beale, supra,
I would also note, as have the commentators, that many of the cases which describe their hоldings in “no search” terms actually employ reasoning that indicates there was a search but a reasonable one. (See, e.g., United States v. Klein, supra,
“The magnetometer ascertains whether there is metal in the hidden space by detecting changes in the magnetic fields surrounding the area of the hidden space.” (United States v. Bronstein, supra,
This figure overstates the probability that appellant’s luggage in particular would contain contraband. If it is conservatively estimated that each arriving flight has an average of 15 passengers with checked luggage, the police department’s statistics would suggest that the likelihood of contraband in appellant’s luggage was one-twentieth of 1 percent.
“Q. [By defense counsel] Well, you were concerned with this flight, because you thought the passengers were coming from Florida; isn’t that right?
“A. [By Officer Flores] That’s correct.
“Q. And you knew there was a stopover in Dallas?
“A. That’s correct.
“Q. And were you concerned that some people — someone—that this baggage might have been something that got put on at Dallas, rather than came from Florida, or didn’t that concern you?
“A. That does not concern me.”
The evidence showed that appellant’s luggage had a Dallas-Fort Worth Airport tag attached to it.
General searches may legitimately occur in the context of an administrative search, but that doctrine is inapplicable to a search for evidence of crime, as in the instant case. (See generally, People v. Hyde, supra, 12 Cal.3d at pp. 165-169.)
People v. Evans (1977)
Jones v. Latexo Independent School Dist., supra,