Detector Dog Finds Hidden Humans, Ignores Those in Plain Sight

by | June 17, 2024

United States v. Martinez, 2024 WL 2237967 (5th Cir. 2024)

Buzzy Martinez drove a tractor-trailer rig through the Border Patrol checkpoint in Falfurrias, Texas. A Border Patrol service dog handler and his canine partner Bak were working the checkpoint at the time. As another Border Patrol officer spoke with Martinez, the handler walked Bak alongside the truck, conducting a “free air sniff.” Bak immediately pulled his handler toward the vehicle, giving a clear indication that Martinez might be smuggling contraband. As Martinez answered immigration questions at the primary inspection area, Bak jumped and hit his paws against the rear cab area of the tractor. Bak then gave a final positive response by sitting down by the back of the cab. Bak repeated this process two more times, jumping against the rear of the cab, then sitting.

Recognizing Bak’s alerts and indications, the handler told the agent speaking with Martinez to send him and his rig to the secondary inspection area. After he did so, agents asked Martinez to step out of the truck and asked him whether anyone else was inside. Martinez claimed there was no one else in the truck. The handler and Bak then approached for a secondary sniff to confirm Bak was not alerting to Martinez. Bak again alerted to the cab by jumping against the door. The dog hesitated, but he did not fully sit. As his handler opened the driver’s door, Bak jumped into the vehicle and went straight to the rear of the cab. Agents searched the cab and found 10 undocumented immigrants hiding in the cab and closet.

Martinez was arrested and charged with transporting undocumented aliens. Challenging the search, Martinez argued the dog’s alerts failed to provide reasonable suspicion to extend the stop and search the truck because dogs are unable to reliably differentiate between the scents of a driver and humans hidden inside the vehicle. The trial court denied Martinez’s motion to suppress, and he appealed.

The appellate court applauded the trial court’s generous dose of common sense to Martinez’s claim that the dog couldn’t distinguish between hidden persons and the driver. The court “noted the ability of rescue dogs to find people buried under rubble and to work around the obvious or other people engaged in the search and rescue operation. The court also noted Bak can go weeks without an alert, controverting Martinez’s argument that Bak is alerting to the smell of the drivers or responding to cues.”

The 5th Circuit panel upheld the trial court’s finding that the canine was reliable in detecting concealed humans was premised on the dog’s training and certification to detect both concealed humans and controlled substances. In Florida v. Harris (568 U.S. 237 (2013)), the Supreme Court held that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” The opinion continued: “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.”

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Bak was certified to detect the odor of concealed persons and the odors of controlled substances. The appellate court stated: “When Bak alerted to Martinez’s tractor-trailer, a reasonable person could have thought Bak was detecting either concealed humans or controlled substances. Of course, Bak actually found concealed humans.” Martinez did not contest Bak’s ability to detect the odor of controlled substances. In Florida v. Harris, the Supreme Court instructed that courts should “not evaluate probable cause in hindsight, based on what a search does or does not turn up.”

The court also cited the certifications for Bak and his handler as evidence that they were adequately trained and certified to detect concealed humans, and that dogs are capable of detecting concealed humans. The court concluded Bak’s alerts and indications were reliable, providing reasonable suspicion to extend the stop for a second sniff and probable cause to search Martinez’s tractor-trailer after he was removed from the vehicle.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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