On May 17, 2024, the Fifth Circuit Court of Appeals decided the United States v. Martinez[i], in which the court examined whether a K9 trained to detect humans hidden in vehicles, as well as narcotics, was reliable since the K9 could possibly alert to the presence of the driver of the vehicle. The relevant facts of Martinez are as follows:
On July 23, 2022, Martinez arrived at the USBP checkpoint in Falfurrias, Texas, driving a tractor-trailer. Working at the checkpoint that day were USBP Agent Steven Compton, a canine handler, and his canine, “Bak.”
Agent Compton has been a USBP canine handler for seven years and has handled three different canines, including Bak. To become a canine handler, he trained at the USBP Canine Academy for seven weeks, where he learned how to properly care for and train a canine in how to detect contraband. He passed a written examination at the end of this training. Agent Compton has since passed certification—which tests the canine team in seventeen scenarios—with each of his three canines.
Bak is a canine trained and certified to detect concealed humans and controlled substances. Bak responds to contraband in two ways: (1) he may “alert,” which refers to the canine’s immediate response to stimulus, including respiratory and posture changes as well as more aggressive signals, after having identified something he has been trained to detect; and (2) he may “indicate,” which is a more passive response the canine is trained to perform when the canine has found the source of what it has detected—which, in Bak’s case, is sitting. After successfully indicating contraband, Bak is rewarded with a toy. Bak went through his initial training process with a different handler. After four successful certifications with that handler, Bak was paired with Agent Compton. Agent Compton then trained with Bak for fifteen days, and the team passed certification on July 21, 2022, two days before the events underlying this case.
On the day of the events in this case, as Martinez drove down the primary inspection lane toward the primary inspection point, Agent Compton and Bak walked alongside the vehicle conducting a “free air sniff.” Bak immediately alerted to Martinez’s tractor-trailer by pulling Agent Compton toward the vehicle. When Martinez’s tractor-trailer stopped at the primary inspection area to answer immigration questions from the primary inspection agent, Bak again alerted by jumping and hitting his paws against the rear cab area of the tractor. Bak then indicated by sitting down next to the rear of the cab. Bak did this process two more times, jumping against the rear of the cab, then sitting.
Agent Compton, recognizing Bak’s alerts and indications, instructed the questioning agent to refer Martinez and his tractor-trailer to the secondary inspection area. Once at secondary, agents asked Martinez to step out of the vehicle and, after he did so, asked whether anyone else was inside, to which Martinez replied there was no one else. Agent Compton and Bak then approached for a secondary sniff of the vehicle to confirm Bak was not alerting to Martinez. Bak again alerted to the cab by jumping against the door. Bak then hesitated, but he did not fully sit down, i.e., indicate. Agent Compton opened the driver’s door, and Bak jumped into the vehicle and went straight to the rear of the cab. Agent Compton searched the cab and found ten individuals concealed in the sleeper area and closets, all of whom were determined to be undocumented immigrants.
Martinez was arrested and charged by indictment with three counts of transporting an undocumented alien, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (A)(v)(II), and (B)(ii)..[ii]
Martinez filed a motion to suppress and argued that the agent lacked reasonable suspicion to lengthen the time of his stop and lacked probable cause to search his truck. The district court denied his motion to suppress finding that the K9 was adequately trained, the initial alert provided reasonable suspicion to lengthen the stop for further investigation, and the second alert provided probable cause to search the truck. Martinez entered a guilty plea with the right to appeal the denial of his motion to suppress.
The court of appeals discussed the legal principles that are relevant in Martinez’s case. The principles were as follows:
First, a border stop, like any stop, may last no longer than reasonably to accomplish that purpose.
Second, the permissible duration at a border checkpoint is “the time necessary to ascertain the number and identity of the occupants of the vehicle, inquire about citizenship status, request identification or other proof of citizenship, and request consent to extend the detention.” Machuca-Barrera, 261 F.3d at 433.[iii]
Third, to extend the length of border stop beyond the time needed for normal immigration checks, the border agent must have reasonable suspicion of criminal activity; if the stop is going to significantly lengthened or a search is to be conducted, the agent must have probable cause or consent.
Fourth, “a border patrol agent may refer a car to secondary [inspection] for any reason (or no reason at all),” but “the length of the detention is still limited by the immigration-related justification for the stop.” Machuca-Barrera, 261 F.3d at 434 n.29 (citing United States v. Jackson, 825 F.2d 853, 862 (5th Cir. 1987)).[iv]
Fifth, “[a] canine sniff of the outside of a vehicle is not a search, and accordingly during the time necessary to investigate normal immigration matters, border agents may conduct a canine sniff to search for drugs or concealed aliens so long as “conducting the sniff does not prolong the purpose of the stop.”[v]
Sixth, probable cause is present when, in consideration of the totality of the circumstances, the facts and circumstances would cause a reasonable person to believe that contraband or evidence of a crime is present.
Seventh, reasonable suspicion is a lower threshold than probable cause. “Reasonable suspicion demands something more than a ‘mere hunch’ but ‘considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.'” Id. (cleaned up) (quoting Navarette v. California, 572 U.S. 393, 397, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014)).[vi]
Eighth, “when a dog that is “trained to alert . . . [to] contraband or people” does so “alert[] in the near presence of a particular vehicle, that action is sufficient to give rise to probable cause to search that vehicle.” Dovali-Avila, 895 F.2d at 207.[vii]
The court of appeals then noted that a defendant must have the opportunity, in court, to challenge the reliability of the K9. The court of appeals examined precedent from the Supreme Court regarding the reliability of a K9. Specifically, the court stated
The Supreme Court addressed how courts should evaluate a dog’s reliability in Florida v. Harris, 568 U.S. at 243-48. “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at 248. The Court emphasized a dog’s performance in “controlled testing environments” over “[f]ield data.” Id. at 246. “[E]vidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Id. “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” Id. at 246-47. However, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty,” and may “examine how the dog (or handler) performed in the assessments made in those settings.” Id. at 247. Furthermore, “evidence of the dog’s (or handler’s) history in the field, . . . may sometimes be relevant,” and “even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.” Id.[viii]
On appeal, Martinez argued that the K9 alerts did not provide reasonable suspicion to extend his stop nor provide probable cause for a search of his truck because a K9 cannot “reliably be trained to differentiate between the scents of the driver and other concealed humans in a vehicle.”[ix]
The court of appeals then set out to determine if K9 Bak was reliable such that his alert would provide reasonable suspicion to extend a detention and probable cause to search.
The court of appeals first noted that Bak was trained and certified to detect concealed humans and controlled substances. Therefore, when Bak alerted to Martinez’s vehicle, a reasonable person could have believed he was alerting to either the presence of concealed humans or controlled substances. The court of appeals stated
If the [Government] has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.” Id. at 248. Because Bak is trained and certified to detect controlled substances, which Martinez does not contest, his alert provided Agent Compton reasonable suspicion to investigate for and probable cause to search for controlled substances. See Powell, 732 F.3d at 369 (stating this court may affirm on any basis established by the record); cf. Outlaw, 319 F.3d at 704 (holding that the alert of a dog that was reliably certified to detect marijuana, cocaine, heroin, and methamphetamine provided reasonable suspicion, even though the briefcase the dog alerted to actually contained phencyclidine, known as PCP, which the dog was not trained to detect); United States v. Viera, 644 F.2d 509, 511-12 (5th Cir. Unit B May 1981) (holding that the alerts of dogs that were trained to detect heroin, cocaine, hashish, marijuana, and related drugs provided probable cause, even though the briefcases the dogs alerted to actually contained quaaludes, which the dogs were not trained to detect).[x]
Second, the court of appeals explained that the district court’s reasoning for concluding that Bak was reliable was not clearly erroneous. Martinez argued that Bak could not distinguish between the driver of a vehicle and humans concealed in a vehicle. The district court noted that rescue dogs are able to distinguish between people “buried in rubble” and the people conducting the search. The district court also observed that Bak “can go weeks without an alert.” This would not be the case if Bak alerted to drivers of vehicles at border checkpoints. Lastly, the district court noted that the US Border Patrol has been training canines to detect people for approximately forty years and had reliable results in test. Both Bak and Agent Compton were trained and certified under the Border Patrol’s program and they both rate as “above average” during training. The court of appeals then stated that because the rationale of the district court was plausible based upon the above considerations, it was not clearly erroneous and would not be reversed.
The court of appeals then held
Based on this finding, the district court correctly held Bak’s alerts and indications at the primary inspection point provided Agent Compton reasonable suspicion to extend the stop and investigate for concealed humans. See Machua-Barrera, 261 F.3d at 434. Further, the district court also correctly held that, at the secondary inspection point, after Martinez exited the vehicle and stated no one else was inside, Bak’s continued alerts to the cab area of Martinez’s tractor-trailer provided probable cause to search the cab for concealed humans. See Harris, 568 U.S. at 248; Dovali-Avila, 895 F.2d at 207; Machua-Barrera, 261 F.3d at 434.[xi]
Therefore, the denial of the motion to suppress was affirmed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 23-40366 (5th Cir. Decided May 17, 2024)
[ii] Id. at 2-4
[iii] Id. at 7
[iv] Id. at 8
[v] Id. (internal citations omitted)
[vi] Id. at 9
[vii] Id.
[viii] Id. at 9-10 (emphasis added)
[ix] Id. at 10-11
[x] Id. at 11-12 (emphasis added)
[xi] Id. at 13-14
