United States v. Reyes
349 F.3d 219, 2003 WL 22435634, 2003 U.S. App. LEXIS 22040 (2003)
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Rule of Law:
A non-contact canine sniff of a person from a distance of several feet does not constitute a 'search' under the Fourth Amendment because it is not in close proximity and is only minimally intrusive. Additionally, asking a suspect to lift their shirt during a lawful stop is a permissible and less intrusive alternative to a physical pat-down frisk.
Facts:
- Roberto Alejandro Reyes and a companion boarded a bus in Brownsville, Texas, with Reyes carrying a blue suitcase.
- A U.S. Border Patrol Agent, David Morales, had a drug-sniffing dog inspect the bus's cargo hold, where the dog alerted on the blue suitcase.
- Reyes's companion claimed the suitcase; a consensual search revealed no contraband, but the companion admitted to smoking marijuana earlier that day.
- As Agent Morales walked the dog past the open bus door, the dog jumped into the passenger compartment, indicating an alert for narcotics or a concealed person.
- Agent Morales directed all passengers to exit the bus and positioned himself with the dog approximately four to five feet from the passenger door.
- As Reyes and his companion exited, the dog alerted to them and followed them as they entered the bus station.
- Inside the station, Agent Morales stopped both men. He asked Reyes to empty his pockets and lift his shirt, which revealed a bundle taped to Reyes's back.
- Reyes fled, abandoning the bundle, which was recovered by Agent Morales and found to contain cocaine.
Procedural Posture:
- A grand jury indicted Reyes on one count of conspiracy to possess cocaine and one count of possession of cocaine with intent to distribute.
- Reyes filed a motion to suppress the seized cocaine in the U.S. District Court, arguing it was the fruit of an unconstitutional search and seizure.
- The district court held an evidentiary hearing and denied the motion to suppress.
- Reyes entered a conditional plea of guilty to the possession charge, reserving his right to appeal the district court's denial of his suppression motion.
- The district court sentenced Reyes to 28 months in prison and a five-year term of supervised release.
- Reyes, as the appellant, timely appealed his conviction to the U.S. Court of Appeals for the Fifth Circuit, challenging the denial of the motion to suppress.
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Issue:
Does a non-contact canine sniff of a person from a distance of four to five feet, conducted without individualized suspicion, constitute an unreasonable search under the Fourth Amendment?
Opinions:
Majority - Duplantier, J.
No. A non-contact canine sniff from a distance of four to five feet does not constitute a search within the meaning of the Fourth Amendment. The court reasoned that a 'search' only occurs if government action infringes upon a reasonable expectation of privacy. Citing precedent from Horton v. Goose Creek Independent School District, the court emphasized that 'close proximity sniffing' is the key factor that makes a canine sniff of a person a search. In this case, the dog was four to five feet away from Reyes, making the sniff only minimally intrusive and not an invasion of privacy. Furthermore, the court found the sniff was unintentional, as the agent's primary purpose was to clear the passengers before searching the bus interior. The court also held that once the dog alerted on Reyes, the agent had reasonable suspicion to conduct an investigatory stop under Terry v. Ohio. The subsequent request for Reyes to lift his shirt was deemed a reasonable and less intrusive measure than a physical pat-down to check for weapons, given the agent's knowledge that weapons often accompany narcotics.
Analysis:
This case establishes an important distinction in Fourth Amendment jurisprudence regarding canine sniffs of persons. By holding that a sniff from a distance of several feet is not a search, the Fifth Circuit created a 'close proximity' standard, providing law enforcement greater latitude to use canines in public spaces without triggering Fourth Amendment protections. This precedent differentiates between an intrusive, up-close sniff (which is a search) and a non-intrusive, distant sniff (which is not). The ruling also reinforces the flexibility of Terry stops, affirming that an officer's request for a suspect to lift their shirt is a permissible, and even preferable, alternative to a physical frisk for weapons.
