In a matter of first impression, the Ninth Circuit in Powers v. Plumas Unified School District addresses whether a dog sniff of a person constitutes a search under the Fourth Amendment. Because the United States Supreme Court has yet to address this issue, there is a split among circuit courts. The Fifth Circuit, contrary to the Seventh Circuit, holds that a dog sniff of a person constitutes a search. The Ninth Circuit agrees with the Fifth Circuit. In Powers, the Ninth Circuit found that a dog sniff of the plaintiff deprived him of his constitutional right to be free from unreasonable searches and seizures. However, at the time of the search, guidelines regarding the use of dogs to sniff students in a school setting were not clearly established. Therefore, the unlawful conduct was not apparent in light of preexisting law. The defendants, in their individual capacities, are entitled to qualified immunity.
Criminal Procedure - Powers v. Plumas Unified School District, 30 Golden Gate U. L. Rev.