United States v. Keller, 2024 WL 5039602 (5th Cir. 2024)
Andre Louis Keller drove his vehicle through an interior border checkpoint in Falfurrias, Texas. Customs and Border Protection (CBP) Agent Jesse Sandoval was working in the primary inspection lanes with his detector dog, Jagus, who is trained to detect the odors of controlled substances and concealed humans. Agent Sandoval was working the dog on a leash, sniffing the passing cars. As Keller drove past, Jagus showed a marked change of behavior, taking a sharp breath and doing a circle spin. The K-9 unit began “working the odor,” sniffing to find the source.
Jager pulled Agent Sandoval across the right-hand lane to Keller’s vehicle in the left-hand lane, where he stood in a “power stance” with his ears straight up. The dog took another sharp breath and pulled the agent back and forth between the driver’s side door and the back hatch of Keller’s vehicle. Though other vehicles were passing by him in the inspection lanes, Jagus focused only on Keller’s vehicle. At this point, however, the dog did not give the trained positive final response behavior of sitting near an odor source.
Seeing Jagus’ behavior, Agent Sandoval directed Keller into the secondary inspection area. Just then, Jagus placed his paws on Keller’s rear bumper and sniffed near the back hatch. Keller pulled into the secondary inspection area and got out of the vehicle. Agents opened the driver’s door, leaned inside and did a quick safety check. Meanwhile, Jagus sniffed the vehicle again. He showed more behavior changes at the back hatch, taking rapid, shallow breaths. At this point, Jagus sat, giving his trained final indication. An agent opened the back hatch and the dog jumped inside, where agents discovered a person hidden under luggage.
Keller was charged with one count of transporting a migrant unlawfully present in the United States. He asked the trial judge to suppress the evidence of the hidden person. The judge denied his motion and Keller appealed. The court of appeals upheld the denial of the suppression motion.
Absent police misconduct, the instinctive actions of a trained canine — including placing his paws on a vehicle’s exterior — constitute incidental contact, not an unconstitutional Fourth Amendment search
The appellate court held that stopping a vehicle for brief questioning at a permanent immigration checkpoint is not a Fourth Amendment search and thus does not require probable cause. Courts have long upheld the validity of security searches at international borders. In fact, the automobile search exception to the Fourth Amendment warrant requirement originated with a border crossing case. In Carroll v. United States (267 U.S. 132 (1925)), officers searched a car for bootleg whiskey brought from Canada. The Supreme Court held that “travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” Courts have also approved suspicionless secondary inspections at border checkpoints.
A canine sniff is not a search because the sniff does not intrude on a legitimate expectation of privacy (Illinois v. Caballes, 543 U.S. 405 (2005)). A dog’s alert only reveals the presence of contraband; the contents of a vehicle, luggage or other items being sniffed are not exposed to public view. The Supreme Court has stated that citizens do not have reasonable expectations of privacy in contraband (United States v. Jacobsen, 466 U.S. 109 (1984)).
Some courts have loosely used the terms “alert,” “indication” and “final response” interchangeably, though the terms have distinct meanings. Mark Twain noted, “The difference between the right word and the almost-right word is the difference between the lightning and the lightning bug.” “Alert” is a term that is often used to describe a detector dog’s behavioral change when the dog smells the odor of drugs it is trained to identify (the “target odor”). The dog’s alert is a subconscious, natural reaction when the dog senses the presence of a trained target odor. The dog’s handler is the indisputable best judge of whether a dog’s behavior constitutes an “alert.” An “indication” is a trained behavior exhibited by the detector dog that signals the dog has located the source of the target odor. Typically, dogs are trained to indicate either aggressively (biting, barking, scratching) or passively (sitting, pointing).
In its opinion in U.S. v. Keller, the appellate court discussed the terms used in various judicial opinions to describe a detector dog’s behavior upon smelling the target odor. As defined by the Fifth Circuit, “An ‘alert’ is an instinctual change in body posture that occurs when the canine first encounters a trained odor. The exact change in body posture is unique to each canine and may not be recognizable to every observer but is recognizable to the canine’s handler. An ‘indication’ is a trained behavior — such as sitting, pointing, scratching, or biting — that occurs after the ‘alert,’ when the canine detects contraband or people.”
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The appellate court held Jagus’ “alert” gave CBP agents cause to search Keller’s vehicle. Courts have followed a firm rule that a positive alert by a trained drug detection dog creates both probable cause to search and probable cause to arrest: “A dog alert is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a fair probability that there is contraband. We therefore have held in several cases that a dog alert without more gave probable cause for searches and seizures.” (United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993)).
Keller asserted the K-9 unit’s paw on his bumper created an unlawful search. The court disagreed: “Absent police misconduct, the instinctive actions of a trained canine — including placing his paws on a vehicle’s exterior — constitute incidental contact, not an unconstitutional Fourth Amendment search.” Keller argued the direction to move to a secondary inspection lane required probable cause, which he claimed was lacking. Again, relying on established border search doctrine, the court rejected his argument. Agents at a permanent immigration checkpoint may “selectively refer motorists to a secondary inspection area without any ‘particularized reason,’” and they have “wide discretion in selecting the motorists to be diverted,” per United States v. Martinez-Fuerte (428 U.S. 543 (1976)).
Once Jagus alerted, his “alert was sufficient to create probable cause for a search.” Thus, the vehicle search that revealed the concealed person at the border checkpoint was valid.
