Appeals Court Says Border Patrol Dog Is Capable Of Detecting The Difference Between Legal And Illegal Humans

Law enforcement will always get more than a fair shake from the Fifth Circuit. No circuit is more apt to award immunity or otherwise refuse to punish officers for coloring outside of the constitutional lines. And that apparently includes officers’ dogs, who probably enjoy a fair shake as much as anyone. Who’s a good boy?!? Who’s a good boy?!?

Not this dog. Not so much. But it’s not really the dog’s fault. The dog does what it’s told and does what’s needed to secure both its toy and probable cause for its handlers.

The defendant, Buzzy Martinez, was arrested at US Border Patrol (USBP) checkpoint and charged with illegally transporting undocumented aliens after a search of his tractor-trailer. The search was instigated by a USBP drug/human dog named Bak.

Here’s the court’s description of Bak’s CV. From the decision [PDF]:

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.

As the court sees it, the dog was properly trained and alerted to the presence of contraband — in this case, human beings. Martinez argued the evidence should be suppressed as the result of an unjustified search. After all, a dog that’s trained to detect human beings can’t be expected to determine whether or not they’re “illegal” human beings.

The trial court disagreed, taking as fact the assertions of Bak’s handler that the dog had alerted twice on the cab of the truck where the undocumented immigrants were found. Furthermore, it declared the USBP dog training program to be “sound” and therefore any indication made by Bak was at the very least reasonable suspicion to extend a stop or initiate a search.

On appeal, Martinez relied on the same argument: a dog trained to detect humans can’t tell whether they’re illegal or not just by smelling them. But the Fifth Circuit spins that argument against him. Martinez conceded the dog may be able to detect illegal drugs. And, for that reason alone, the Border Patrol officers were justified in engaging in a search.

As for illegal/non-illegal human argument, the court decides it’s a non-issue. And even if it was, it would have sided with the government because… well, dogs have been trained to detect humans in other circumstances and that usually goes alright. It agrees with the lower court, which had this to say about the issue:

The district court found Martinez’s argument that dogs cannot differentiate between the scents of different concealed humans to be speculative and 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 court examined the standards of USBP’s training program and noted USBP has been training canines to detect concealed humans for nearly forty years with reliable results in testing.

But that ignores the central argument: that a dog trained to detect things that are often legal should not be relied on as a source of information as to whether anything illegal has been detected. That’s the issue facing cops and their dogs all over the nation as marijuana legalization has become a regular thing. A dog trained to smell a substance that is legal (whether it’s weed or humans) will “alert” or “indicate” even when nothing illegal is present. And because it’s capable of “alerting” on legal substances (or humans), an alert alone cannot be considered reasonable suspicion to extend a stop or probable cause to engage in a warrantless search.

Unfortunately, this is how the issue is resolved now in this circuit. And while it’s less than ideal, at least it isn’t the dumbest thing border agents have said about their dogs’ magical ability to detect illegal humans.

That would be this:

Agent Miranda testified that Boeli is trained to detect concealed people in different scenarios including inside a moving vehicle. Agent Miranda testified that Boeli can “distinguish cars with people in them from cars with concealed people in them.”

Fortunately, that argument was laughed out of court by the federal judge handling the case. That happened in California, though, so it has no bearing on this case in the Fifth Circuit, which handles Texas, Louisiana, and Mississippi.

So, the ability of USBP dogs to clearly define the difference between legal and illegal humans is still accepted as fact in this appellate jurisdiction. Perhaps another case will bubble up that raises the question a bit better or is at least better received by the trial court before the Fifth handles it. As it stands now, the odor of potentially legal humans is still justification enough for a warrantless search.