Petition — Elkins v. Ohio

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

A-473 76- 1 059

No.

LEON ROBERT ELKINS,

Petitioner,

OHIO

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

R. RAYMOND TWOHIG, JR.

HANDELMAN & TWOHIG

186 EAST ELEVENTH AVENUE

COLUMBUS, OHIO 43201

ATTORNEY FOR PETITIONER

TABLE OF CONTENTS OF PETITION

Page

TABLE OF CASES AND AUTHORITIES iii

CITATIONS TO OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED FOR REVIEW 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 4

STATEMENT OF THE CASE AND FACTS 4

REASONS FOR GRANTING THE WRIT 12

1.

Il,

WHEN POLICE OFFICERS USE

A CANINE'S OLFACTORY CAPA-

BILITY TO PERMEATE THE EX-

TERIOR OF A SEALED FOOT

LOCKER IN TRANSIT ON A

COMMON CARRIER, WHERE THERE

EXISTED AN EXPECTATION OF

PRIVACY, SOLELY ON THE TIP

OF AN INFORMANT OF UNPROVEN

RELIABILITY, SUCH ACTIONS

CONSTITUTE AN UNREASONABLE

SEARCH WITHIN THE MEANING

OF THE FOURTH AMENDMENT.

ANY SEARCH WARRANTS OBTAINED

AS A RESULT QF SUCH SEARCH

ARE TAINTED AND EVIDENCE

OBTAINED MUST BE SUPPRESSED.

12

ASSUMING WITHOUT CONCEDING

THAT THE PENETRATION OF THE

EXTERIOR OF A SEALED FOOT

LOCKER, WHERE THERE WAS AN

INSUFFICIENT SHOWING OF

THOSE ELEMENTS OF THE CA-

NINE'S RELIABILITY AND

TRUSTWORTHINESS NECESSARY

TO ALLOW A NEUTRAL AND DE-

TACHED MAGISTRATE TO DETER-

MINE WHETHER PROBABLE CAUSE

TO ISSUE A WARRANT TO SEARCH

THE BOX DID EXIST. ABSENT

SUCH PROBABLE CAUSE, ANY

WARRANTS ISSUED IN RELIANCE

THEREON OR EVIDENCE OBTAINED

FROM SUBSEQUENT SEARCHES MUST

BE SUPPRESSED.

23

TABLE OF CONTENTS OF APPENDIX

Fourth Amendment. United States

Constitution la

Fourteenth Amendment, United

States Constitution la

Rule 41 (C), Ohio Rules of

Criminal Procedure 2a.

Ohio v. Elkins, Court of Appeals,

Franklin County, Ohio, ren-

_ dered Feburary 12, 1976 4a

Dismissal Entry, Ohio Supreme

Court, rendered September 10,

1976 13a

|

p

TABLE OF AUTHORITIES tenes tenen*s) gS

Page ;

Cases United States v. Albarado,

, 495 F. 2d 799 (2nd Cir.

Aguilar v. Texas, 378 U.S. 1974) 6, 21

108 (1964) 6, 24,

26, 28 United States v. Bell,

; 464 +. 2d 667 (2nd Cir.

Cobb v. Wyrick, 379 F. Supp. 1972) cert. denied 409

1287 (W.D. Mo.1974) 17 U.S. 491 (1972) 6, 21

Corngold v. United States,

i t a tein,

367 F. 2d 1 (9th Cir.1966) Bs Bae on tee ote (ond Cir.

15 1975) ‘. 6,

Se DOs

Goldman v. United States, 25

376 U.S. 129 1933 13

i . Davis,

Katz v. United States, 397 U.S. Di eg ota, (Sth Cir.

347 (1967) >, 6, 1973) 21

F. - Sie

14, 15, United States v. Durkin,

19 335 F. Supp. 992 (D.C.

. , 14

Mapp v. Ohio, 367 U.S. 643 sitet ~~?

(1961) 22 United States v. Fulero,

F. 2d 66 d Cir.

Nathanson v. United States, 38) , rl S. 26.

290 U.S. 41 (1933) 25 228

Olmstead v. United States, United States v. Harris,

277 U.S. 438 (1928 13 | 403 U.S. 573 (1971) 7, 24,

People v. Furman, 30 Cal. App. ”

3rd 454 (1973) 28 United states YogMtnten

° 127 4th Cir.

People Vv. McGrew, 462 P. 2d 1 13783 " . ad 17

(1969) 14 |

; 8 United States v. Ponder,

Silverthorn Lumber Company v. 45 C.M.R. 428 (1972) pet.

United States, 251 U.S. 385 ; for review by UCMA denied,

(1919) 21, 24 45 C.M.R. 928 (1972) 6, 27,

29

-iii -

- iv -

Cases (con't.)

United States v. Richards,

500 F. 2d 1025 (9th Cir,

1974)

United States v.Shipwith,

ns RA To7e (5th Cir.

1973

United States v. Solis.

393 F. Supp. 325 (C.D. Cal.

1975), rev'd. 536 F. 2d 880

(9th Cir. 1976)

United States v. Unrue,

22 USCMA 466 (1973)

Wong Sun v. United States,

77 U.S. 471 (1963)

Articles

Page

17

Kingham, Marijuana Detection Dogs

as an Instrument of Search: °

Real Question, THE ARMY LAWYER,

D.A. Pam 27-50-5, 10 (May, 1973)

16

Lederer and Lederer, Admissibility

of Evidence Found by Marijuana

Detection Dogs, THE ARMY LAWYER,

D.A. Pam 27-50-4

16

a ntl eee

Articles (con't,)

Lederer and Lederer, Marijuana

Dog Searches After United

tates v. Unrue, THE ARMY

LAWYER, D.A. Pam 27-50-12,

6 (Dec. 1973)

Constitution, Statutes and Rules

Fourth Amendment, United

States Constitution

Fourteenth Amendment,

United States Constitution

28 U.S.C. §1257 (3)

Rule 41 (C), Ohio Rules of

Criminal Procedure

- vi -

16, 27

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. A-473

LEON ROBERT ELKINS,

Petitioner,

vs.

OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioner, Leon Robert Elkins,

respectfully prays that a writ of cert-

iorari issue to review the judgment of

the Supreme Court of Ohio, entered in

the above entitled case on September 10,

1976.

OPINIONS BELOW

The Ohio Supreme Court overruled

Petitioner's motion for leave to appeal

from the Court of Appeals for Franklin

County and dismissed the appeal of the Pe-

titioner sua sponte on September 10, 1976,

reported at 47 Ohio Bar 1219 (1976). The

Opinion of the Court of Appeals for Frank-

lin County is reported at 47 Ohio App. 2d

307 (1976), a copy of which is appended

hereto.

The underlying conviction in the

Franklin County Court of Common Pleas was

entered, after a finding of guilt, rendered

without written opinion. Such finding was

in response to the Petitioner's plea of no

contest following the denial without written

opinion of Petitioner's Motion to Suppress

Evidence.

JURISDICTION

On the 27th of May, 1975, Petitioner

was convicted in the Franklin County Court

of Common Pleas for (1) Possessing for Sale

an Hallucinogen (Marijuana) and (2) Keeping

a House for the Illegal Keeping or Dispens-

ing of an Hallucinogen (Marijuana). The ~

sentence imposed for the first conviction

was ten to twenty (10 - 20) years and two

to fifteen (2 - 15) years to be served con-

currently on the second charge. The-sen-

tence has been stayed pending the final

disposition of this litigation. No motion

for rehearing was filed.

Having exhausted his state remedies,

Petitioner now submits this, his petition

for a writ of certiorari.

On the 9th day of December. 1976, Mr.

Justice Stewart, as Circuit Justice, granted

an extension of time within which to file a

petition for a writ of certiorari, up to and

including February 7, 1977.

This Court's jurisdiction is invoked

pursuant to 28 United States Code §1257 (3),

as this action, cites error in the rulina of

the state court in failing to suppress evi-

dence which was obtained by state and fed-

eral police agents in violation of the Fourth

and Fourteenth Amendments to the United

States Constitution.

QUESTIONS PRESENTED FOR REVIEW

Be WHEN POLICE OFFICERS USE A

CANINE'S OLFACTORY CAPABILITY TO PERMEATE

THE EXTERIOR OF A SEALED FOOT LOCKER IN

TRANSIT ON A COMMON CARRIER, WHERE THERE

EXISTED AN EXPECTATION OF PRIVACY, SOLELY

ON THE TIP OF AN INFORMANT OF UNPROVEN RE-

LIABILITY, SUCH ACTIONS CONSTITUTE AN UN-

REASONABLE SEARCH WITHIN THE MEANING OF THE

FOURTH AMENDMENT. ANY SEARCH WARRANTS OB-

TAINED AS THE RESULT OF SUCH SEARCH ARE

TAINTED AND EVIDENCE OBTAINED MUST BE SUP-

PRESSED.

Il. ASSUMING WITHOUT CONCEDING THAT

THE PENETRATION OF THE EXTERIOR OF A SEALED

FOOT LOCKER, WHERE THERE WAS AN EXPECTATION

OF PRIVACY, BY A CANINE'S OLFACTORY SENSES

DOES NOT CONSTITUTE A SEARCH, THERE WAS AN

INSUFFICIENT SHOWING OF THOSE ELEMENTS OF

THE CANINE'S RELIABILITY AND TRUSTWORTHINESS

NECESSARY TO ALLOW A NEUTRAL AND DETACHED

MAGISTRATE TO DETERMINE WHETHER PROBABLE

CAUSE TO ISSUE A WARRANT TO SEARCH THE BOX

DID EXIST. ABSENT SUCH PROBABLE CAUSE, ANY

WARRANTS ISSUED IN RELIANCE THEREON OR

-3-

ne Oe ee

EVIDENCE OBTAINED FROM SUBSEQUENT SEARCHES

MUST BE SUPPRESSED.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

(1) Amendment Four, United States

Constitution

(2) Amendment Fourteen, United

States Constitution

(3) Rule 41 (C), Ohio Rules of

Criminal Procedure

STATEMENT OF THE CASE

AND FACTS

The above questions present important

constitutional issues of broad significance,

which have not heretofore been determined

by this Court. In essence, this case deals

with the rather recent use by police agen-

cies of canines, in particular, and other

aids, in general, to the human senses to

surveil persons, places and things without

warrants to determine the existence of con-

traband. It involves the question of the

‘protection of rights secured by the Fourth

Amendment to the United States Constitu-

tion and the extent to which police agen-

cies may employ such devices without the

safeguard of a warrant to effectively search

the contents of sealed containers placed in

transit by unsuspecting individuals. This

case is of heightened importance because

of the increasing capability of our ex-

panding technology to surveil and intrude

into zones of expected privacy without

physical trespass.

In Katz v, United States, 389 U.S.

347 (1967), this Court established the "rea-

sonable expectation of privacy" test to de-

termine whether a particular search or in-

trusion fell within the protections of the

Fourth Amendment. This Court did not limit

the expectations of privacy to that which the

individual would have in his home, but also

to his “person, .. . papers and effects."

We believe this applies equally to one's use

of telephones, the mails or common carriers

for the transportation of personal effects.

In a case almost identical to the case

before this Court, United States v. Solis,

393 F. Supp. 325 (C.D. Cal. 1975), the Dis-

trict Court held that the use of two trained

dogs that had been employed to smell the

molecular diffusion emanating from marijuana

located within a sealed trailer was a search,

lacking probable cause. The Court siressed

the analogy between that situation and the

"reasonable and justifiable expectation of

privacy’ expressed in Katz; the use of the

dogs amounted to an intrusion by an “unin-

vited canine nose." Id., at 327.

"In the absence of a warrant

supported by probable cause,

or certain recognized excep-

tions for a warrantless search,

people living in a-free society

should not, for example, be re-

quired to tolerate intrusions

into their privacy by the Gov-

ernment's use of electronic

monitoring equipment, high

power telescopes, or the keen

olfactory powers of specially

trained dogs. These and other

extraordinary information

gathering devices gravely threa-

ten each person's ability to

maintain any semblance of

privacy." Id., at 328.

Notwithstanding the reasoned view of

the District Court, the Ninth Circuit Court

of Appeals reversed, finding that no search

was involved and that the use of the canine

was reasonable and an inoffensive intrusion.

United States v, Solis, supra, rev'd. 536

F. 2d 880 (9th Cir. 1976).

Recently, two Circuit Courts have also

held that no searches occurred when dogs

were utilized to detect the presence of

contraband within sealed containers. United

States v. Bronstein,521 F. 2d 459 (2nd Cir.

1975); United States y. Fulero, 498 F. 2d

748 (D.C. Cir. 1974) .17

The second issue is One of facial ade-

quacy of the search warrant. The clear fail-

ure of the Ohic Courts to apply the consti-

tutionally based requirements underlying the

issuance of search warrants as articulated

in Aguilar v. Texas, 378 U.S. 108 (1964):

l1/ A number of lower Federal Courts

have struggled to apply the Katz rationale

to sense enhancing and sense replacino de-

vices ranging from scintillators, Corngold

v. United States, 367 F. 2d 1 (9th Cir. 1966),

a pre-Katz case, to magnometers, United

States v. Albarado, 495 F. 2d 799 (4th Cir.

1974); United States v. Shipwith, 482 F. 2d

1272 (5th Cir. 1973); U.S. v. Bell, 464 F.

2d 667 (2nd Cir. 1972). cert. denied, 409

U.S. 991 (1972),and detection dogs, United

States v. Ponder, 45 C.M.R. 428 (1972) peti-

(393 se review USCMA denied 45 C.M.R. 928

1972).

Spinelli _v. United States, 393 U.S. 410

(1969); and United States v. Harris, 403

U.S. 573 (1971), justifies the exercise of

jurisdiction by this Court. The substitu-

tion of a dog for the traditional informant

does not obviate the burden imposed upon a

magistrate to independently determine the

credibility and reliability of the canine

as a source in the finding of probable

cause. Even assuming that the Court is

willing to sanction the use of canines as

an adjunct to law enforcement activities,

it is of utmost importanct to place before

the magistrate the underlying reasons for

the affiant's reliance upon the canine's

verifications, that is, the canine's train-

ing, experience, and trustworthiness, prior

to the issuance of the search warrant.

The Katz holding sought to establish

the outer bounds of unwarranted intrusions

upon the privacy of the individual. In so

doing it recognized with substantial pre-

science the mushrooming development and

diffusion of extra-sensory implements cap-

able of piercing an individual's expected

"zone of privacy." The Katz court set the

outer limits at human sensing faculties.

When equipment, electronic or canine, is

employed as an adjunct, then it is manda-

tory to first obtain the authorization of

a search warrant.

"Otherwise, as the majority

recognizes, the spectre of a

‘Big Brother' baggage search,

uncurbed by the Fourth Amend-

ment, would then loom much

larger on the horizon. As

more sophisticated detection

devices are developed in the

future, such a broad auth-

ority would be an open invi-

tation to conduct blanket

examinations, thus eroding

the principles underlying

the Fourth Amendment it-

self." U.S. v. Bronstein,

supra, at 465. (Concurring

opinion of Mansfield, J.)

On January 25, 1975, Judge Frank Reda,

of the Franklin County Municipal Court, is-

sued a warrant to search a sealed foot locker

which was located at the Port Columbus In-

ternational Airport. The facts which Judge

Reda was presented with were those contained

in the affidavit for the search warrant,

which is set out below:

"The facts upon which such

belief is based are as fol-

lows: on 1/25/75 Det. Nash

received the following infor-

mation from Special Agent

Charlie Banks, a Group Leader

in Cleveland, Ohio D.E.A. Of-

fice and Will Rutledge, a

Special Agent for the D.E.A.

Det. Nash has personally

worked with the above-named

persons and knows them to be

reliable sources of infor-

mation, who have given factual

information in the past. Agent

Charlie Banks stated the D.E.A.

Office has received an anony-

mous phone call, and the caller

Stated that a parcel had been

sent from San Diego, Califor-

nia to Ceramics and Other Nice

Stuff, 1822 East Main St.,

Columbus, Ohio. The caller

also stated that the package

contained marijuana. The

sender of the package

is alleged to be Leon E1-

kins of 5759 Churchill Rd.,

San Diego, California. The

package was sent to Cleve-

land, Ohio via American Air-

lines, parcel delivery, bear-

ing Shipping Bill No.

001SAN07645411, and measuring

approximately 21 inches by

24 inches by 46 inches. Upon

the plane's arrival in Cleve-

land, Ohio, Agent Will Rut-

ledge met the plane and veri-

fied the fact that the package

was aboard the plane. Agent

Rutledge affirmed the arrival

and called Customs Agent Dwight

Dyche, (see Attachment No. 1)

(Attachment No. 1)

"The facts upon which such

belief is based are as fol-

lows: an agent for the U.S.

Customs Department, and a dog

handler, who used his dog,

which has been used on several

Occasions to seek Out marijuana,

to verify the parcel contained

marijuana. The dog indicated

that marijuana was in the par-

cel. The above information was

then relayed by telephone to

Det. Nash by Will Rutledge.

Custody of the parcel was main-

tained by the Cleveland, Ohio

D.E.A. Office until it was

placed in a Quick Airfreight

No. 8839, and shipped to Ccl-

umbus, Ohio, American Airfreight

Terminal where it was met by

Det. Nash, Woodard, Wasem and

Webb. The package is a

U-Haul Clothes Box, weighing

66 lbs. and is supposed to

be filled with novelties.

Leon Elkins is known to the

Columbus, Ohio Police Depart-

ment as a trafficker in drugs,

and has been arrested by the

Columbus Police Department,

disposition unknown at this

time."

Solely in reliance upon the above

statement, Judge Reda issued a warrant to

search the foot locker which was then lo-

cated at Port Columbus International Air-

port. The warrant was executed and two

days later the box was opened. Twenty-one

kilos of plant material were discovered,

nineteen of these were removed and replaced

with items approximating the same weight.

The package was then resealed and forwarded

for delivery to the addressee.

The delivery to the original consignee

was made on January 27, 1975. Subsequently,

a second warrant was obtained from Judge

Fred Donnally of the Franklin County Muni-

cipal Court for the search of the premises

known as Ceramics and Other Nice Stuff,

1822 East Main Street, Columbus, Ohio. The

affidavit for this second search was based

on information gained through the search of

the package at the airport, as well as in

reliance upon the initial warrant which had

previously been issued by Judge Reda. Pur-

Suant to this second warrant, a search of

the premises was conducted, which resulted

in the arrest of Petitioner and the seizure

of the remaining two kilos of marijuana,

along with other items, including airline

tickets and miscellaneous papers. It was

this evidence and previously seized evidence

» 1 e

which Petitioner sought to suppress by motion

to the trial court. He entered no contest

pleas which resulted in the finding of guilt

by the trial court. It is from the failure

on the part of the trial court to suppress

this evidence that Petitioner by assignment

of error appealed to the Court of Appeals

for Franklin County. That Court affirmed

the decision of the trial court. The

Ohio Supreme Court overruled the Motion for

Leave to Appeal from the Court of Appeals

and dismissed the appeal sua sponte. Peti-

tioner now seeks this writ.

“— >=

REASONS FOR GRANTING THE WRIT

Be

WHEN POLICE OFFICERS USE A

CANINE'S OLFACTORY CAPABILITY

TO PERMEATE THE EXTERIOR OF A

SEALED FOOT LOCKER IN TRANSIT

ON A COMMON CARRIER, WHERE THERE

EXISTED AN EXPECTATION OF PRI-

VACY, SOLELY ON THE TIP OF AN

INFORMANT OF UNPROVEN RELIABILITY,

SUCH ACTIONS CONSTITUTE AN UNREA-

SONABLE SEARCH WITHIN THE MEAN-

ING OF THE FOURTH AMENDMENT.

ANY SEARCH WARRANTS OBTAINED

AS THE RESULT OF SUCH SEARCH

ARE TAINTED AND EVIDENCE OB-

TAINED MUST BE SUPPRESSED.

Question I presents three significant

branches for this Court's consideration.

(A) Was the footlocker constitutionally

protected from unreasonable search by the

Fourth Amendment? (B) Did the use of a dog

to permeate the box to detect contraband

constitute a search within the meaning of

the Fourthe Amendment? (C) If the foot

locker was protected by the Fourth Amendment

and if. the use of the dog did constitute a

search, was the search reasonable?

A. Was The Foot Locker Con-

stitutionally Protected From

Unreasonable Searches By The

Fourth Amendment?

Until December 18, 1967, this Court

has taken the position that in order for

the protections of the Fourth Amendment

to become operative, a physical intrusion

of an enclosure must occur, Olmstead v.

-— 2

United States, 277 U.S. 438 and Goldman v.

United States, 316 U.S. 129; however, on

that date this Court decided Katz v. United

States, 389 U.S. 347 (1967). In Katz, this

Court held:

"What a person knowingly ex-

poses to the public, even in

his own home or office, is not

a subject of Fourth Amendment

protection (citations omitted).

But what he seeks to preserve

as private, even in an area

accessible to the public, may

be constitutional] rotected."

Katz, supra, at 351. (Emphasis

added.)

This principle has had far-reaching

effects on decisions throughout the country,

for although some courts are recognizing

that the individual expectation of people

is what counts [see wormage v. United States,

367 F. 2d 1 (9th Cir. | )] most courts

were stuck on the so-called "trespass doc-

trine" of Olmstead and Goldman. After Katz,

the development of the Taw in this area has

been markedly different.

Katz involved the use of an electronic

listening device attached to the outside of

a telephone booth through which federal agents

recorded Katz' conversations relating to gam-

bling. The Court found from the circumstances

that Katz expected his conversations to be

private and that the Fourth Amendment pro-

tected him from violations of his privacy

by unreasonable searches. In following Katz,

courts in other jurisdictions have applied

this principle. In U.S. v. Durkin, 335 F.

Supp. 992 (1971), the Circuit Court found

that a rented locker at a public terminal

was protected because, the defendant

ot «

a a

1 + + Justifiably expects that it is for

his private use, to place therein what he

will, free from prying eyes, and that it

and its contents are inviolate except as

they may be constitutionally searched,"

Durkin, at p. 996.

In a case directly applicable to the

facts of the instant case, the California

Supreme Court, in ruling on the search of

a locked foot locker which had been given

Over to an airline for shipment, said that

the defendant did not waive his Fourth Amend-

ment right to be free from unreasonable

searches simply because the airline employees

could have looked in his locker. The Court's

specific language is as follows: "McGrew

might have expected that an airline employee

would inspect baggage where danger or incon-

sistency was observed, but he could not rea-

sonably be expected to anticipate police

searches for contraband." People v. McGrew,

462 P. 2d 1 (1969) at p. 6.

In U.S. v. Solis, supra, overruled on

appeal by the Ninth Circuit Court of Appeals,

536 F. 2d 880 (1976), the District Court

found that a semi-trailer parked on a Shel]

service station lot which was closed and

locked but unattended was covered by the

— of privacy as enunciated in

atz.

The Petitioner herein shipped a package

from California to Columbus via American Air-

lines. The foot locker was closed and sealed

and the Petitioner's name was listed in the

Space reserved for a return address. Cer-

tainly the Petitioner had the expectation

that the privacy of the foot locker would

be inviolate. The thrust of the Katz deci-

sion and those decisions which have fol-

lowed require that absent exigent circumstances

— a

a dog can only be used where probable cause

exists and a warrant has been obtained.

B. Did The Use Of A Dog To

Permeate The Foot Locker To

Detect Contraband Constitute

A Search Within The Meaning

Of The Fourth Amendment?

In approaching the second question

presented herein, it is necessary to turn

again to Katz v. U.S., supra. In addition

to elucidating the concept of the expecta-

tion of privacy, this Court announced a cor-

ollary but stil? a very significant princi-

ple when it said, “the reach of the Fourth

Amendment cannot turn on the presence or

absence of a physical intrusion into any

given enclosure," Katz, supra, at 353. The

changing nature of this principle is demon-

Strated by the reasoning in Corngold v.

United States, supra, in which the Ninth

Circuit found that even though Corngold

was protected by the Fourth Amendment from

a search by police officers of a package

which he had entrusted to TWA Airlines, he

was not protected from the use of a "scir-

tillator" to penetrate the walls of his

apartment to detect radium on watch dials.

Corngold was decided in 1966, one year be-

fore Katz, when the “trespass doctrine" was

still the law of the land. If Corngold had

been decided after Katz, the decision on the

scintillator issue would, in all probability,

have been opposite.

In considering the use of dogs to sniff

packages, the federal courts have considered

the precedent established in Katz but the

decisions vary according to the facts of the

individual cases. The key question facing

the court is: Are the keen olfactory powers

‘|

of specially trained dogs Squiveigat to

electronic monitoring equipment?

Logically, it certainly seems to fol-

low that if government agents are prevented

from using electronic devices from hearing

what they would otherwise not be able to

hear or scintillators or magnetometers to

“see” what they would not otherwise be able

2/ One area where Courts have grappled

with the issue of the utilization of detec-

tion dogs is in the United States Military

Courts. While these courts have not clearly

decided the issue, there is a difference of

Opinion among military writers about whether

the use of a detection dog is a search.

"Whether the very use of the dog constitu-

tes a search . . . should be the initial

consideration." Kingham, Marijuana Detec-

tion Dogs As An Instrument of Search: The

Real Question, THE ARMY LAWYER, D.A. Pam

27-50-5, 10 (May, 1973). "The use of the

dog is analogous to the employment of mech-

anical devices such as magnometers and elec-

tronic bugging devices. Probable cause must

antedate the use of the marijuana detection

dogs." Kingham, supra, at 11-12.

Opposing writers maintain that using

a dog to supply probable cause for a search

is not a search per se. Lederer and Lederer,

Admissibility of Evidence Found by Marijuana

Detection Dogs, THE ARMY LAWYER, D.A. Pam

27-50-4, 12, 13 (April, 1973). But see, a

more recent publication where the authors

conclude in view of the comparability between

the use of dogs and the use of magnetometers

in airport searches for weapons it would be

disingeneous to argue that the use of dogs

is anything but a search. Lederer and Led-

erer, Marijuana Dog Searches After United

States v. Unrue, THE ARMY LAWYER, D.A. Pam

27-50-12, 6. 7 (Dec. 1973).

» 6s

to see, then the government should be pre-

vented from using specially trained dogs to

smell that which they would not otherwise

be able to smell. All are sophisticated

means bevond human ability and not just en-

hancement of human senses. See U.S. v. Min-

ton, 448 F. 2d 37 (4th Cir. 1973); Cobb v.

Wyrick, 379 F. Supp. 1287 (W.D. Missouri

Tovay.

In a case more directly on point to

the facts of the instant case, U.S. v. Rich-

ards, 500 F. 2d 1025 (9th Cir. 1974), the

Ninth Circuit found the use of a dog to de-

tect the presence of contraband was permis-

sible because the defendant had consented

to a search of his personal effects. Al-

though the officers had not secured a war-

rant, they were excused from that require-

ment by the defendant's express waiver of

his Fourth Amendment rights.

In a recent Second Circuit decision,

thre Court decided that the use of a dog to

sniff airline baggage was not a search.

The decision is apparently grounded in the

Court's view of an absence of an expecta-

tion of privacy as to airplane luggage,

U.S. v. Bronstein, 521 F. 2d 459 (2nd Cir.

1975). In addition, the informant in Bron-

stein had been reliable in the past. In

the instant case, a package was shipped

on an airline -- a distinctly different

expectation is therefore attached. (See

Corngold and McGrew, supra.) Also, in the

instant case, an informant of unproven re-

liability was used as the sole indication

of criminal activity prior to the use of

the dog. In the concurring opinion in

Bronstein, at 464, Judge Mansfield finds

that dog sniffing is a search. .

"There is no legally siq-

nificant difference between

» 0 2

the use of an X-ray

machine or magnetometer

to invade a closed area

in order to detect the

presence of a metal pis-

tol or knife, which we

have held to be a search,

United States v. Albarado,

495 F. 2d 799, 802-803

(2nd Cir. 1974), and the

use Of a dog to sniff for

marijuana inside a private

bag. Each is a non-human

means of detecting the con-

tents of a closed area with-

Out physically entered into

it. The magnetometer as-

certains whether there is

metal in the hidden space by

detecting changes in the mag-

netic fields surrounding the

area of the hidden space.

The dog uses its extremely

sensitive olfactory nerve to

determine whether there are

marijuana molecules emanating

from the hidden space." Bron-

stein, supra, at 464.

However, Judge Mansfield concludes that

the search is authorized implicitly because

of the individual's declining expectation

of privacy when he elects to place his bag-

gage in public commerce. This logic is

without authoritative support in the opin-

ion and there is no proof offered that in-

dividuals surrender their justifiable ex-

pectations of privacy when they place their

baggage in public transit.

The reasoning of Judge Pregerson fol-

lows the precedent laid down in Katz. supra,

and strikes at the heart of the issue -- simply

because a dog is flesh and blood, does that

—| a

make it any less a sophisticated device

for searching than a listening device com-

posed of wires, tubes and transistors, His

conclusion is that regardless of the physi-

cal make-up of the device, its function is

the significant question and when a dog

: whose sense of smell is said to be

eight times more powerful than a man's .. ."

Solis, (District Court), supra, is used as

it was herein, a search most certainly has

occurred.

Finally, and of consequence in this

case, the Franklin County Court of Appeals,

per McCormack, J., held that the sniffing

of the air around the package by the dog

constituted a search. See Opinion below,

State v. Elkins, 47 Ohio App. 2d 307 (1976)

(appended hereto).

C. If The Foot Locker Was

Protected By The Fourth Amend-

ment And If The Use Of The Dog

Did Constitute A Search, Was

The Search Reasonable?

In attempting to determine the appro-

priate relationship between the Fourth Amend-

ment guarantees of the right to one's ex-

pectation of privacy and society's right to

reasonably regulate that expection, the

concurring opinion of Justice Harlan in

Katz, supra, has become the definitive stan-

dard. His test is basically a two-fole one.

"The person must exhibit an

actual (subjective) expecta-

tion of privacy and the expec-

tation must be one that soc-

iety is prepared to recognize

as reasonable." Katz, supra,

at 361, (Harlan, J., concur-

ring).

At one extreme, an individual has no

expectation of privacy towards articles which

he knowingly places in "plain view.” Nor

does the expectation of privacy survive a

knowing and intelligent consent to search.

Likewise, once a lawful arrest has been made,

an individual surrenders his right to be

free from searches and seizure of his person.

And further, there exists clearly delimited

exigent circumstances in which the police

have the authority to conduct warrantless

searches. These are generally limited to

Situations where, under the totality of the

circumstances, there is an immediate neces-

Sity to conduct a search due to the likeli-

hood of the destruction or disappearance of

the objects of the search.

Conversely, at the other extreme is

the Fourth Amendment in its most literal

form; which guarantees citizens "the right

. to be secure in their persons, homes,

papers and effects ...." In the instant

case, the Petitioner sought to transport

a foot locker on a common carrier from Cal-

ifornia to Ohio. It was consigned to the

carrier fully sealed and without notice to

Petitioner, explicitly or implicitly, that

such freight would be subjected to search.

Petitioner was fully justified in expect-

ing a high degree of privacy, absent some

mishap which might result in the damage to

the integrity of the container. Certainly

society believes that those personal effects

which they place in public transit will not

be subjected to surveillance and penetra-

tion.

In those instances where the Courts

have permitted some regulation of the trans-

portation of personal effects these have

been based upon a nexus of legitimate sec-

urity concerns and some forewarning to indi-

viduals. The use of a magnetometer as a

a8 «

device to screen passengers and their carry-

on baggage at airline terminals has been held

to be a reasonable search. See, United States

v. Albarado, 495 F. 2d 799 (2nd Cir. 1974),

There, the Court held there was an absolutely

minimal invasion of privacy, an Overwhelming

threat to the hundreds of airplane passen-

gers from an undetected hijacker and the fore-

warning of passengers that they would be sub-

ject to search. Id., at 806. See also,

United States v. Bell, 464 F. 2d 667 (2nd

Cir.) cert. denied 409 U.S. 991 (1972);

United States v. Davis,482 F. 2d 893 (9th

Cir. 973).

Further, in a military case, United

States v. Unrue, 22 USCMA 466 (1973) the

Court identified a lessened expectation of

privacy where individuals were on notice

that they could be subjected to a search at

a second checkpoint within the perimeter of

an army base. The Court found the forewarn-

ing to be a crucial element to its assess-

ment of reasonableness. Notwithstanding,

Judge Duncan in dissent, Id., at 472, found

this dimunition of Fourth Amendment was not

based upon any factual demonstration of

widespread drug abuse sufficient to justify

warrantless searches.

In the instant case, there is no jus-

tification to permit the warrantless inter-

ception and search of Petiticner's locker

while in transit from California to Ohio.

Such a search was not reasonable nor neces-

sitated by any direct showing that such war-

rantless penetration was mandated to pro-

tect persons or property from immediate

harm or danger. As a result, any and all

subsequent warrants, as well as evidence

which was seized in reliance upon such search,

are tainted and any evidence obtained must

be suppressed. Silverthorn Lumber Company

«28

v, United States, 251 U.S. 385 (1919);

Wong Sun v. United States, 371 U.S. 471

(1963); Mapp v. Ohio, 367 U.S. 643 (1961).

> £8 «

II.

ASSUMING WITHOUT CONCEDING

THAT THE PENETRATION OF THE

EXTERIOR OF A SEALEC FOOT

LOCKER, WHERE THERE WAS AN

EXPECTATION OF PRIVACY, BY A

CANINE'S OLFACTORY SENSES DOES

NOT CONSTITUTE A SEARCH, THERE

WAS AN INSUFFICIENT SHOWING

OF THOSE ELEMENTS OF THE CANINE'S

RELIABILITY AND TRUSTWORTHINESS

NECESSARY TO ALLOW A NEUTRAL AND

DETACHED MAGISTRATE TO DETERMINE

WHETHER PROBABLE CAUSE TO ISSUE

A WARRANT TO SEARCH THE BOX DID

EXIST. ABSENT SUCH PROBABLE

CAUSE, ANY WARRANTS ISSUED IN

RELIANCE THEREON OR EVIDENCE

OBTAINED FROM SUBSEQUENT SEARCHES

MUST BE SUPPRESSED.

On October 2°. 1975, the Honorable

Frank A. Reda, Judge of the Franklin County

Municipal Court, issued a search warrant pur-

suant to Ohio Rules of Criminal Procedure,

Rule 41 (C) (See appendix). That rule re-

quires the magistrate, prior to the issuance,

to independently determine that probable

cause exists for the search. If hearsay

is employed as justification for probable

cause the magistrate must be convinced that:

"There is a substantial basis

for believing the source of

the hearsay to be credible and

for believing that there is a

factual basis for the infor-

-mation furnished... ." Rule

41 (C), Ohio Rules of Criminal

Procedure.

of3 «

This rule is designed to afford citi-

zens the full panoply of rights granted to

them in the Fourth Amendment governing searches

and seizures as applicable to the statutes

through the Fourteenth Amendment. It codi-

fies the standards enunciated by this Court

in Aguilar, supra and Spinelli, supra.

The test established by Aguilar is

two-fold: (1) how did the informant get

his information, and (2) why should we be-

lieve this informant? The first goes to

the circumstances underlying the acquisition

of the information;the second considers the

basis for the belief that the informant is

credible or trustworthy. While these re-

quirements are subject to the qualification

of reasonableness and are not to be applied

in a rigid and inflexible manner, U.S. v.

Harris, supra, there still must be suffi-

cient information presented to a magistrate

to permit him to ascertain, independently,

whether justification exists for the is-

Suance Of a warrant.

In the case before the Court, the

Drug Enforcement Administration (hereinafter

D.E.A.) was originally alerted by an anony-

mous phone caller, claiming that the Peti-

tioner's foot locker, which had been shipped

from California to Ohio, contained marijuana.

The warrant itself fails to specify whether

the call was made to the San Diego or Cleve-

land D.E.A. Office. The reliability of the

informant is never established. The infor-

mation forwarded is of the type that would

be easily accessible to any one who viewed

the package after it had been sealed. There

is no support provided for the bald allega-

tion that the package contained marijuana.

Unlike Solis, supra, the informant did

not state that he had dealt with the Peti-

tioner On numerous occasions in the past in

=

similar circumstances. Id,, at 881. Nor

was there evidence that the caller had

viewed "a situation which appeared suspi-

cious," United States v. Fulero, 498 F. 2d

748 (D.C. Cir. 1974) ,and there is no alleaa-

tion that the package and its consianor ex-

hibited any behavior which would have led

the caller to believe that there was mari-

juana present. United States v. Bronstein,

Supra, at 460.

In the case of Spinelli v. United States,

Supra, the affiant swore that his confidant

was reliable, but offered the magistrate no

reason in support of this conclusion. While

there was information alleging that Spinelli

was known to the affiant and other law enforce-

ment officers as a gambler and as an associate

of gamblers, this was held to be "but a bald

and unilluminating assertion of suspicion

that is entitled to no weight in appraising

the magistrate's decision." Nathanson v.

United States, 290 U.S. 41, 46 (1933); Spin-

elli, supra, at 414.

Similarly, in the instant case, there

are no reasons shown on the face of the war-

rant that would provide the magistrate with

an opportunity to independently evaluate the

reliability of the informant.

In addition, the statement by the affiant

that:

"Leon Elkins is known to the

Columbus, Ohio Police Depart-

ment as a trafficker in drugs,

and has been arrested by the

Columbus Police Department,

disposition unknown at this

time,”

is of the same tenor as the allegation in

oO «

Spinelli, above. The mere fact of arrest

without conviction is protected by the fun-

damental presumption of innocence and indeed

such must be afforded the Petitioner in

this case. Cumulatively, the absence of

information concerning the informant's

prior reliability and the vague reputational

evidence fall short of the standards nec-

essary for probable cause, even allowing

for a flexible, common sense approach, U.S.

v. Harris, supra; U.S. v. Ventresca, 380

U.S. 102 (1965).

The Court below recognized that this

bare information would not justify the is-

Suance Of a search warrant.

"The prosecutor concedes that

a warrant to search a package

in Hopkins Airport in Cleve-

land could not have been ob-

tained.without the verifica-

tion of marijuana within, as

a result of the dog sniffing

the parcel, as otherwise it

is necessary to rely solely

upon the credibility of the

informant. Since the infor-

mant waS an>~nymous, relia-

bility could not be verified

as required by Aguilar v.

Texas (1964, 378 U.S. 108.)"

Opinion below, supra, at 298.

As a result, the existence of probable

cause to search hinges upon the additional

indicia which are supplied by the detec-

tion dog. The pertinent aspects of the

search warrant as regarding the dog in-

‘volved are as follows:

"The facts upon which such

belief is based are as fol-

si »

lows: an agent for the

U.S, Customs Department

and a .dog handler who has

used his dog, which has been

used on several occasions

to seek out marijuana, to

verify the parcel contained

marijuana. The dog indicated

that marijuana was in the

parcel."

Where probable cause has not been

established, one federal court has assumed

that a trained dog could be used to supply

probable cause, but only if the Court was

first provided with adequate information

attesting to the dog's trustworthiness

and reliability. United States v. Ponder,

45 C.M.R. 428, 433-434 (1972) petition for

review by U.S.C.M.A. denied, 45 C.M.R. 928

(1972). The Court's assumption that dogs

might be used to establish probable cause

for a search warrant was based on the ana-

logous use of tracking dogs and the cases

allowing the admission of tracking dog evi-

dence. Id., at 434, 46 A.L.R. 3rd 1221.

Courts have insisted upon a showing of prior

reliability by the dogs in order to assure

that when an invasion of privacy is ini-

tiated, it will be undertaken only when

the dog involved is sufficiently reliable

to establish probable cause. Lederer and

Lederer, Marijuana Dog Searches After United

underlying circumstances that are the basis

for the officer's conclusion that the canine

employed was a “credible” informant with

"reliable" information. Aguilar v. Texas,

Supra, at 114.

The serious deficiency in the warrant

at issue in this case is the complete lack

of any showing to the magistrate of the re-

liability and credibility of the dog which

was used in this action. In order to make

an independent determination, the magistrate

should be advised of the following: the

exact training the detector dog has received;

the standards or criteria employed in selecting

dogs for marijuana detection training; the

standards the dog was required to meet to

successfully complete his training program;

and the performance of the dog up until the

ata United States v. Ponder, supra, at

The rationale requiring such standards

is due to the unique communication charac-

teristics of detection dogs. A dog can alert

to a drug in a variety of ways: the dog can

Snarl, bark, whine or paw at a container.

United States v. Fulero, supra, at 749;

United States v. Solis, 393 F. Supp. 325,

States v. Unrue, THE ARMY LAWYER, D.A. Pam

27-50-12, 6, 7? (Dec.1973).

Thus, to support a showing of probable

cause to search, the same standards required

by Aguilar and Spinelli govern: the magis-

trate must be informed of “underlying cir-

cumstances" which are the basis for the

canine's determination “that narcotics

were where he claimed they were," and the

~ 2

326 (C.D. Cal. 1975); People v. Furman,

30 Cal. App. 3rd 454, 5, 106 Cal. Rept.

366, 367 (1973). The alert is either "true"

or “dead,” depending upon whether the drug

is actually at the spot the dog indicates

or has only recently been there, and all that

is left is a lingering odor caused by cig-

-arette papers, pipes and other paraphernalia

that have been in contact with narcotics.

United States v. Unrue, supra, at 884-885.

Applying these standards to the facts

of the case at bar, one need only examine

the affidavit to conclude that the details

provided are insufficient and fail to iden-

=

tify the training, experience, trust-

worthiness and accomplishments of the

dog. The information is limited to that

of an unidentified dog who “nas been used

on several occasions to seek out mari-

juana," and who has indicated "that mari-

juana was in the parcel." This conclu-

sory statement is insufficient by itself

without some basis for concluding either

that the dog was reliable or that his in-

formation in this particular instance was

credible.

"It is particularly temptina

to credit a dog with great

powers for no reason other

than that marijuana was found

exactly where the dog indi-

cated it would be, even

though no prior reliability

is shown... . The legality

of a search may not be based

On evidence discovered as a

result thereof. United States

v. Bowser, 33 C.M.R. 703

(AFBR 1963)," United States v.

Ponder, supra, at 335 n. 6.

The failure on the part of the magis-

trate to secure the above safeguards ren-

dered the subsequent search and all evi-

dence secured as a result thereof tainted,

and therefore, under the authority of "the

fruit of the poisonous tree" doctrine, must

be suppressed. Silverthorn Lumber Compan

v. United States, 251 U.S. 385 (1919); Won

Sun v. United States, 371 U.S. 471 (1963).

29 «

CONCLUSION

For the foregoing reasons, Petitioner

prays that a writ of certiorari issue to

review the judgment and opinion of the Court

below.

Dated: February 6, 1977

Respectfully submitted,

HANDELMAN & TWOHIG

R. RA ND TWOHIG, we

Counsel for Petitioner*

186 East Eleventh Avenue

Columbus, Ohio 43201

614/294-1636

*Counsel for Petitioner wishes to ex-

press his gratitude to Jerome E. Friedman

for his invaluable assistance in the pre-

paration of this petition.

» 2 «

APPENDIX I

AMENDMENT FOUR, CONSTITUTION

OF THE UNITED STATES

THE RIGHT OF THE PEOPLE TO BE

SECURE IN THEIR PERSONS, HOUSES,

PAPERS, AND EFFECTS, AGAINST

UNREASONABLE SEARCHES AND SEI-

ZURES, SHALL NOT BE VIOLATED,

AND NO WARRANTS SHALL ISSUE

BUT UPON PROBABLE CAUSE, SUP-

PORTED BY OATH OR AFFIRMATION,

AND PARTICULARLY DESCRIBING THE

PLACE TO BE SEARCHED, AND THE

PERSON OR THINGS TO BE SEIZED.

AMENDMENT FOURTEEN, CONSTITUTION

OF THE UNITED STATES

SECTION 1. ALL PERSONS BORN

OR NATURALIZED IN THE UNITED

STATES AND SUBJECT TO THE JUR-

ISDICTION THEREOF, ARE CITIZENS

OF THE UNITED STATES AND OF THE

STATE WHEREIN THEY RESIDE. NO

STATE SHALL MAKE OR ENFORCE ANY

LAW WHICH SHALL ABRIDGE THE PRI-

VILEGES OR IMMUNITIES OF CITI-

ZENS OF THE UNITED STATES, NOR

SHALL ANY STATE DEPRIVE ANY PER-

SON OF LIFE, LIBERTY OR PRO-

PERTY, WITHOUT DUE PROCESS OF

LAW: NOR DENY ANY PERSON WITHIN

ITS JURISDICTION THE EQUAL PRO-

TECTION OF THE LAWS.

-la -

4 a ee ny eer mn hme” Maa eT NTT

OHIO RULES OF CRIMINAL PROCEDURE

RULE 41, Search and Seizure.

(C) Issuance and contents. A

warrant shall issue under this rule only

on an affidavit or affidavits sworn to be-

fore a judge of a court of record and estab-

lishing the grounds for issuing the warrant.

The affidavit shall name or describe the

person to be searched or particularly de-

scribe the place to be searched, name or

describe the property to be searched for

and seized, state substantially the offense

in relation thereto, and state the factual

basis for the affiant's belief that such

property is there located. If the judge is

satisfied that probable cause for the search

exists, he shall issue a warrant identify-

ing the property and naming or describing

the person or place to be searched. The

finding of probable cause may be based upon

hearsay in whole or in part, provided there

is a substantial basis for believing the

source of the hearsay to be credible and

for believing that there is a factual basis

for the information furnished. Before

ruling on a request for a warrant, the

judge may require the affiant to appear

personally, and may examine under oath the

affiant and any witnesses he may pro-

duce. Such testimony shall be admissible

at a hearing on a motion to suppress

if taken down by a court reporter or record-

ing equipment, transcribed and made part

of the affidavit. The warrant shall be

directed to a law enforcement officer.

It shall command the officer to search,

within three days, the person or place

named for the property specified. The

warrant shall be served in the daytime,

unless the issuing court, by appropriate

provision in the warrant, and for reasonable

- 2a -

cause shown, authorizes its execution at ; APPENDIX I]

times other than daytime, The warrant shali

designate a judge to whom it shall be re-

— IN THE COURT OF APPEALS,

turned. FRANKLIN COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee.

vs. Case No. 75AP-511

LEON ROBERT ELKINS,

Defendant-Appellant.

DECISION

Rendered on February 12, 1976

MR. GEORGE C. SMITH, Prosecuting

Attorney

MR. ALAN C. TRAVIS, Assistant

Franklin County Hall of Justice,

Columbus, Ohio,

For Plaintiff-Appellee.

CAMPBELL, SCHWARZWALDER & SANFORD,

MR. A. MICHAEL SCHWARZWALDER,

40 West Gay Street

Columbus, Ohio,

For Defendant-Appellant.

- 4a-

- 3a -

No. 75AP-511

Appellant has timely appealed his con-

viction of possession for sale of marijuana

and keeping a house for the illegal keeping

or dispensing of marijuana. Both parties —

concede that the soie issue is whether mari-

juana discovered by the use of a trained

dog was illegally obtained.

The facts pertaining to this issue

are that a federal agent received an anony-

mous phone call stating that a parcel had

been mailed from San Diego, California to

Cleveland, Ohio, via American Airlines par-

cel delivery. The package was precisely

described, even to shipping bill number. .

Upon the plane's arrival in Cleveland, Ohio,

a federal agent verified the fact that the

package was aboard the plane and summoned

a dog handler to bring his trained dog, used

on various occasions to seek Out marijuana,

to sniff the parcel. Using his trained and

superior olfactory powers, the trained dog

indicated that marijuana was in the parcel.

The federal authorities then obtained a

search warrant and discovered twenty-one

kilos of marijuana in the box.

Subsequent search warrants, not in

issue herein, which were the by-product

of the original search, showed Appellant

to be guilty of the offenses for which

he was convicted in relation to the mari-

juana found by the dog in the parcel. The

prosecution concedes that the validity of

their entire case rests upon whether the

use of the police dog was permissible.

Appellant filed a timely motion to

Suppress in the trial court which was over-

ruled. Appellant's assignment of error is

- 5a -

as follows:

"Where police officers, acting

solely on a tip from an infor-

mant of unproven reliability,

use a dog to sniff the exterior

of a sealed box which is in

transit on a common carrier,

Such use of a dog constitutes

a search within the meaning

of the Fourth Amendment without

probable cause and any search

warrants obtained based upon

evidence discovered as a result

of such search are tainted and

any evidence obtained must be

Suppressed."

The Fourth Amendment to the United

States Constitution provides, as follows:

"The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants shall

issue, but upon probable cause,

Supported by oath or affirmation,

and particularly describing the

place to be searched, and the

persons or things to be seized.”

The prosecutor concedes that a warrant

to search the package at Hopkins Airport in

Cleveland could not have been obtained with-

Out the verification of marijuana within as

a result of the dog sniffing the parcel, as

Otherwise it is necessary to rely solely

upon the credibility of the informant. Since

the informant was anonymous, reliability

could not be verified as required by Aguilar

v. Texas (1964), 378 U.S. 108.

- 6a -

The issues are whether the smelling

by the dog constituted a search since there

was no physical intrusion of the wrapped

package and, if so, whether the search was

unreasonable under these facts. Prior to

1967, the United States Supreme Court had

taken the position that a physical intru-

sion of an enclosure must occur before

there can be an illegal search. However,

that theory was repudiated by the decision

of Katz v. U.S. (1967), 389 U.S. 347. Katz

involved the use of an electronic listen-

ing device attached to the outside of a

telephone booth through which federal agents

recorded the defendant's telephone conver-

sation. The recording and the fruits there-

from were found to be inadmissible in vio-

lation of the Fourth Amendment on the basis

that Katz expected his conversation to be

private and that the listening device was

an unreasonable search in violation of his

privacy. Appellant seeks to extend that

doctrine to this case, contending that the

specially trained dog, with its keen ol-

factory powers, discovering marijuana in the

enclosed box, was equivalent to usina elec-

tronic monitoring equipment to hear sound

from the telephone booth.

Two cases involving this very issue

have been decided by federal courts, with

inconsistent results. The first case is

that of U.S. v. Fuliero (1974), 498 F. 2d 748.

The facts in that case were that an employee

at the Greyhound Bus Depot in Yuma, Arizona,

called the police and told them that three

hippies had brought in two footlockers that

were being sent to Washington, D.C., and

that the Situation appeared suspicious.

Shipping marijuana through Greyhound was a

normal practice in Yuma and, on many prior

occasions, agents of the depot had spotted

packages containing marijuana. A police

o 2a e@

officer went to the depot and looked at

the footlockers. The name of a man known

to the police as probably involved in the

narcotics traffic was on one of the lockers.

In addition, the police noticed that the

footlockers smelled of mothballs, which was

sianificant because mothballs are frequently

used in an attempt to conceal the odor of

marijuana. At that point, the police ob-

tained the services of a marijuana snif-

fing dog and the dog indicated that the foot-

lockers contained marijuana. When a search

warrant was Obtained based on this informa-

tion. the trunks were found to contain ap-

proximately eighty-eight pounds of mari-

juana. The United States Court of Appeals

for the District of Columbia rejected the

argument that the dog's sniffing around the

footlockers was an unconstitutional inva-

sion into the lockers, calling it frivolous

and praising the conduct of the police as

a model of intelligent and responsible pro-

cedure.

The second case involving this issue

is that of U.S. v. Solis (1975), 393 F.

Supp. 325. In that case an informant of

unproven reliability had notified the police

that a fully enclosed semitrailer, parked

at the rear of a service station, contained

large sums of marijuana. The police used

two trained dogs to sniff the air around the

trailer. The dogs positively reacted as

to the presence of marijuana, after which a

search warrant was obtained. The dog han-

dlers testified that their trained dogs,

whose sense of smell is eight times more

powerful than that of man, are 100% reliable

in detecting kinds of narcotics, including

marijuana. The search warrant obtained

based'on this evidence produced two thou-

sand pounds of marijuana which had been

secreted under the floorboards of the trailer.

- Ba -

The United States District Court held

that the use of the dogs constituted an un-

reasonable search and seizure, prohibited

by the Fourth Amendment to the U.S. Consti-

tution. The Court,in so deciding, concluded

this case was analogous with Katz as, in

each instance, the government's activities

violated the privacy which defendant justi-

fiably and reasonably expected.

Neither of the aforesaid cases are

binding upon this Court and the case is

apparently one of first impression in Ohio.

This Court must determine, based on appli-

cable decisions of the United States Sup-

reme Court, whether the use of a marijuana

sniffing dog under the facts herein consti-

tutes an unreasonable search and seizure

prohibited by the Fourth Amendment to the

United States Constitution.

As previously stated, the first issue

is whether the sniffing of the air around

the package by the dog constituted a search.

That question must be answered in the affir-

mative. By the use of a sophisticated de-

vice, albeit flesh and blood, the user

perceived something entirely hidden from

human senses, enhanced or unenhanced. As

conceded in the Solis case by the govern-

ment, no real distinction can be drawn

between the use of specially trained dogs

with superior olfactory powers than use of

an electronic instrument which registers

a smell which a human cannot perceive. In

this respect the case is comparable to that

of Katz where the electronic device attached

to the outside of the enclosed telephone

booth constituted a search even though

there was no physical intrusion of the

enclosure.

Not all searches are prohibited by

the Fourth Amendment, but only those which

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are unreasonable. The Katz case properly

held that a person making a private call

in an enclosed phone booth had a reason-

able expectation, worthy of protection,

that his conversation not be overheard

by the use of electronic sound enhancers.

The question is whether the situation at

hand constitutes a comparable situation

so far as the unreasonableness of intru-

sion is concerned. The Solis case did

hold it to be comparable and the Fulero

case, without discussion, simply rejected

the claim as frivolous.

It is the firm view of this Court that

the use of the dog to indicate the presence

of marijuana did not constitute an unrea-

SOnable search either in this case or in

the Solis case which, in our view, was in-

correctly decided. Here, as in the Solis

case, we have an enclosed object, innocent

on its fact, located in a public place. In

each instance there is reasonable suspicion

of the presence of an illicit drug within

the package, but not so verified as to be

able to obtain a search warrant. Counsel

for appellant concedes that any reasonable

police agency would follow up the anony-

mous, although specific, tip to determine

if in fact an illicit drug were contained

therein. The dispute concerns the appro-

priate method of follow-up police work.

Obviously, merely searching the package

Or breaking into the trailer is prohibited

in either instance. Conceivably, had the

trained police dog not been available, the

police could have staked out the area, or

folitowed the package in transit, utilizing

perhaps hundreds of hours of police work

in an effort to obtain further evidence nec-

essary to sustain the issuance of a search

Or arrest warrant. Instead, the police,

who fortunately have also developed more

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sophisticated techniques to deal with

criminals in response to a similar dev-

elopment on the part of criminals, utilized

the trained police dog to obtain the further

evidence necessary for procurement of a

search warrant.

The court in the Solis case stated

that the owner of the trailer had a rea-

sonable expectation that no one would in-

trude into the privacy of his trailer, other

than upon probable cause supported by a

search warrant. Yet, what type of an in-

trusion did take place in both this case

and the Solis case? The intrusion con-

sisted of sniffing the air around the en-

closed trailer or package. No further

intrusion took place without the proper

issuance of a search warrant. This case and

the Solis case, although apparently at first

blush analogous to the Katz situation, are

actually a far cry therefrom. In the Katz

case a person's right of privacy is offended

whether that person is innocent or engaged

in conversation involving a criminal act.

Persons do not want even innocent private

conversations monitored without probable

cause. Innocent persons are offended by

that intrusion and, hence, the search is

unreasonable. In this instance, it is hard

to imagine that an innocent person could

have any objection to his package, placed

in transit on a common carrier, being sniffed

by a trained dog. The Court, in the Solis

case was correct in saying that "whether

a governmental intrusion into a private

area constitutes a reasonable search under

the Fourth Amendment depends on the kind

and degree of intrusion which a free society

is willing to tolerate." However, the

Court was incorrect in its application of

that test to the facts in hand. In so hold-

ing the Court made an all too common mistake

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e« ~

of using logic without common sense. More-

over, the Court appeared to be affected by

the skillful use of hypothetical horror

stories often used to influence a Court's

holding. These horror stories rarely, if

ever, even closely resemble the facts of

the case. They include allegations that

a holding such as we have made in this case

would permit the police to roam the streets

at will with trained dogs or sensor instru-

ments, detecting the odor of marijuana and

arresting persons at will as a result. No

such conduct was involved in this case or

in the Solis case, nor is Such conduct,

theoretical as it may be, to be condoned.

We are fully confident that this Court and

other courts are able to deal with the con-

stitutional rights involved if such a situa-

tion is ever presented to us. In this case

as in others, courts must resist the ten-

dency to decide the case before them based

on what might happen.

Under the facts of this case, the use

of the dog trained to detect marijuana was

reasonable and not violative of the Fourth

Amendment. Furthermore, it represented police

work which should be commended rather than

condemned.

The judgment of the trial court is

affirmed.

STRAUSBAUGH, P.J., and REILLY, J.

concur.

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APPENDIX III

THE SUPREME COURT OF OHIO

1976 Term

THE STATE OF OHIO,

City of Columbus, To wit: September 10,

1976

State of Ohio,

Appellee, No. 76-460

vs. APPEAL FROM THE COURT

OF APPEALS

Leon Robert Elkins,

Appellant. for Franklin County

This cause, here on appeal as of

right from the Court of Appeals for FRANKLIN

County, was heard in the manner prescribed

by law, and, no motion to dismiss such appeal

having been filed, the Court sua sponte dis-

misses the appeal for the reason that no sub-

stantial constitutional question exists herein.

It is further ordered that a copy of

this entry be certified to the Clerk of the

Court of Appeals for FRANKLIN County for

entry.

I, Thomas L. Startzman, Clerk of the

Supreme Court of Ohio, certify that the fore-

going entry was correctly copied from the

Journal of this Court.

Witness my hand and the seal

of this Court this 10th day of September,

1976.

/s/ Thomas L. Startzman

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