I present a police dog case law summary. The drug dog has become one of law enforcements most powerful tools. 

However, we are best served by remembering that this tool, like all other tools, is not perfect.

Police Dog Case Law Summary

The Supreme Court Cases

The law on police dog drug sniffs contains three foundation cases from the United States Supreme Court. See my prior posts on police drug dogs. Click Here & Click Here. 

Caballes

It all begins with Illinois v. Caballes, 543 U.S. 405 (2005):

* Police Dog Drug Sniffs are Not Searches* Practical Limits Remain* Not That Many K-9 Units* Police Can Not Cause an Undue Delay

This case threatened to blow this issue wide open in favor of the police. It concluded that a police dog sniff was not a search. And we all know that things that are not searches are constitutional.

Facts: This was a traffic case. Car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes.

Everything appeared wide open for police and their well trained four-legged sniffers.The court held:

“That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” United States v. Place, 462 U. S. 696 (1983).

The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist for aromas that come from completely illegal contraband.  “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”  Caballes, 543 U.S. 405 (2005).

You don’t have a privacy interest in illegal smells.

Caballes Still Set Limits, Can I go now?

Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. (This limitation would also apply if drug sniffing dogs are used in DUI roadblocks).

The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing. This is important.

Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop. The Court wrote that:

A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.

Caballes, 543 U.S. 405 (2005). If the police try to slow down the interaction with the driver so that ...

An anticipatory warrant is a warrant to search a place or thing in the future after certain documented conditions are observed.

Introduction

When I first encountered the anticipatory warrant as a prosecutor, I could not believe it was legal. It is a such a strange and unique thing in the criminal law.

So, I studied it.

I quickly saw that the police who were writing these search warrants were missing important details. I prepared for defense motions challenging the warrants. However, the motions never came because the defense bar did not understand the anticipatory warrant either! In this podcast, I talk about this strange creature called the anticipatory warrant.

If you understand the anticipatory warrant then you understand the Fourth Amendment in a deeper way. Now, I can see that this search warrant is logical and legal, but it did not always make sense to me.

When is an Anticipatory Warrant Used?

An anticipatory search warrant is what is used when the police have concrete proof that a crime will happen in the future. In the podcast episode, I also explain how this type of search warrant works. The anticipatory warrant is used in situations when the police intercept an item of contraband. For example, when the police interdict and confiscate:

* Drugs in the mail

* Child Pornagraphy in the mail or website

* Military weapons captured in a port

* Information on a fugitive’s location

The most common situation when they come up is when the police intercepted a package of drugs in the U.S. mail. Usually, a canine alerts to a package. Then the package is examined and drugs are discovered. There is always a fake return address or no return address at all. The only legitimate investigative lead is the destination address. The officers, at this point, can draft an anticipatory warrant and take it to the judge. This search warrant application is asking the judge for permission to search the home where the package will be delivered even though the package has not actually been delivered yet.

Ok, What is an Anticipatory Warrant?

In this sense, the anticipatory search warrant is predicting the future. It is telling the judge that investigators have reason to believe that a crime will be committed in the future. The formal definition then of an anticipatory search warrant is this:

An anticipatory warrant is a search warrant based upon an affidavit showing probable cause that at some future time, but presently, certain evidence of a crime will be located at a specific place.

These types of search warrants depend on the same Fourth Amendment principles as every other police search. Remember, the Fourth Amendment says that

no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

This podcast episode discusses United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494 (2006). This is the leading case on the subject of the anticipatory warrant.

Go here to learn more about warrants and other 4th amendment topics.

There Has to Be a Triggering Condition

The biggest difference between a normal search warrant and an anticipatory search warrant is the requirement of a triggering condition. The warrant application to the judge must explain that the search warrant will only be executed if the triggering condition actually happens. The triggering condition in a drug case would be the drugs actually being delivered or accepted by a person at the address to be searched. If, for whatever reason, the delivery is never made the police would not be ...