Perhaps you read our recent article on whether or not managers should allow police to train their drug detection dogs at self-storage facilities? Well, yet another ongoing criminal case has come to our attention that further illustrates how this issue is far from straightforward.
King Arthur Self Storage in West Jordan, Utah periodically allows law enforcement to conduct narcotics dog training at their facility. A King Arthur onsite manager told me “the police don’t come out here all the time; I’ve probably seen them out here twice in the last six months.” In an ongoing case based on a March 2011 incident, police officer Tom Smith took a team of canines down to King Arthur for some practice. In a matter of minutes, the dogs alerted that there was marijuana inside a unit belonging to tenants Daniel and Cynthia Gray.
Normally, for law enforcement personnel to enter a self-storage unit, they need “reasonable suspicion.” However, if the police bring dogs there for “real world training,” the line gets blurry. For the time being, federal law is on the side of the police, and a dog sniff at a self-storage facility has not been held to be a “search” under the definition of the fourth amendment.
The law states that if authorities are invited onto the premises by self-storage management, they can conduct “training” at a facility. If the dogs stumble upon a locker containing drugs, the police officer then needs to get a warrant to look inside the unit. In most states, this will not be an arduous task. That being said, when deciding whether to issue a warrant, judges take into consideration the certification of the dog, testimony from self-storage managers, and any criminal records of the tenants.
In the case of the Grays, it was easy to get a search warrant, as both tenants had previously been convicted of drug possession. Also, Cynthia had priors for fraud and forgery, and Daniel had priors for aggravated assault and weapons charges. And as if these weren’t enough, Daniel was sitting in a South Carolina jail at the time of the warrant request.
When the officer opened the storage locker, there was no marijuana inside, but there was a duffel bag filled with $230,863. Law enforcement seized the cash, claiming that it smelled like marijuana, and that the stacks of $20s and $100s were wrapped in rubber bands in a manner consistent with drug dealing.
Seven months later, Daniel Gray sent a handwritten letter to the court requesting $220,863. Interestingly, Gray asked for $10,000 less than the seized amount— perhaps offering the judge a cut? At any rate, the Utah Attorney General’s office has not charged either Gray with a crime, but they are also not giving back the money. Instead, they are trying to prove that the money came from a drug transaction.
Last month, U.S. District Judge Clark Waddoup formerly relinquished the cash to the U.S. government. However, the very next day, the judge changed his mind and vacated the order. The legality of this seizure is one that the highest courts in this country have still not worked out.
The first clause of the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”
Is a Dog Sniff a Fourth Amendment Search?
In various cases, the highest courts in Minnesota, Alaska, Pennsylvania, and most recently Florida, have ruled that dog sniffs were Fourth Amendment searches, and thus illegal warrantless searches. The United States Supreme Court is currently examining this issue as it looks at the ongoing Florida v. Jardines.
United States v. Place, 1983
The U.S. Supreme Court ruled that trained police dogs’ detection of narcotics in public is NOT a “search” within the meaning of the fourth amendment. This ruling made it legal for canines to search for drugs in luggage at the airport.
United States v. Ayala, 1989
In a case regarding discovery of methamphetamine in an automobile, the U.S. Supreme Court again ruled that a dog sniff was not a “search.”
United States v. Lingenfelter, 1993
Lingenfelter was unable to prove that his “legitimate or reasonable expectations of privacy” were violated when police discovered 2 tons of marijuana in his warehouse. DEA agents were tipped off by a random informant. Again, the U.S. Supreme Court decided that the canine sniff was not a search.
United States v. Kyllo, 2001
The U.S. Supreme Court stated that a residence is entitled to a higher level of privacy, and that police officers cannot use high-tech thermal imaging to search a home for marijuana grow operations.
Illinois v. Caballes, 2005
The Illinois Supreme Court ruled that drug detection dogs could sniff any cars stopped during routine traffic stops.
Florida v. Jardines, 2012
This is a big one. The Florida Supreme Court recently interpreted the fourth amendment quite differently than the U.S. Supreme Court has in the past. It ruled that a police dog sniff was unlawful at a Miami-area private residence that contained a marijuana grow operation. Florida prosecutors have challenged the ruling and the U.S. Supreme Court is currently reviewing the decision. They will make a decision on Jardines this fall. According to John Ensminger, an expert on dog law, 27 states have signed an amicus brief to have the Florida ruling reversed.
Prosecutors and police are watching this case extremely closely, because if the U.S. Supreme Court does not reverse Florida’s ruling, it will have lasting implications on how police can conduct canine searches. In regard to self-storage facilities, they are entitled to more privacy than a car, but less than a residence. Nevertheless, this case will have implications on the legality of police using drug detection dogs at self-storage facilities.
NOTE: John Donegan is not a lawyer. Please consult your legal counsel if you have a question about this issue.
Photo from U.S. Department of Homeland Security