Dear Festival Lawyer,

I was at the Gorge Camping Ground in Washington State for Paradiso Music Festival. During the night when my girlfriend and I were sleeping, an officer with a K-9 called us out of the tent and said the dog had detected drugs were inside. No car was nearby just a circle of tents. Is this a legal search of my tent with no warrant?

Name withheld by request

When Electric Zoo announced it would use drug dogs a few years back there was a fair amount of outcry from the community.

However, it’s fair to say that this festival season saw a real “arms race” when it came to ramped-up security efforts by festivals – and a big part of that arms race was a growing use of drug dogs, especially at EDM music festivals.

It’s a little tricky to say exactly how many festivals use drug dogs as part of their security. Some festivals are using drug dogs, while some festivals use bomb or explosive detecting dogs at the entrance that people mistake for drug dogs. And there are many festivals that post “regular” dogs at the entrance to leave the impression with attendees that they might be drug dogs.

In any event, the growing acceptance of drug dogs at festivals is really unfortunate. Anyone looking at this issue realistically has to start with the premise that you just can’t ratchet security up high enough to keep all drugs out of a festival. For example, when L.A. county SheriffDan Whitten was asked to describe the task of keeping drugs out of L.A.’s Hard Summer Festival by security measures alone, he used one word: “Impossible.”

But there is a bigger problem: Drug dogs just really suck at their job. The issue is a drug dog’s tendency to “falsely alert” and indicate that drugs are present when they are not. Various studies put the rate of drug dog “false positives” at anywhere from 12.5 to 60% of the time. In fact, a Chicago Tribune field study revealed that drug dogs are more often wrong than they are right when alerting for drugs in vehicles.

Part of this poor track record seems to be due to bad handlers or poorly trained dogs. There is an ongoing issue with dogs falsely alerting because they are reacting to their handlers' demeanor and body language. In other words, the dogs are reacting to the fact that the officer expects them to find drugs in a location. Some unscrupulous officers even train their dogs to falsely alert on suspects.

With success rates that low, it’s hard not to conclude that drug dogs aren’t anything more than props to give an officer probable cause to search you. For this reason drug dogs are sometimes referred to as “furry judges” or “search warrants on a leash.” At this point you might be saying: Hold up Festival Lawyer. Can they even do this? Isn’t this just a random suspicionless search?

Well, yeah. But in Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to search cars if the original reason for the stop was valid. The Court ruled that since dog sniffs only identify the presence of illegal items – in which citizens have no legitimate privacy interest – the Fourth Amendment does not apply to their use.

That’s some seriously next level legal mumbo jumbo. What it means as a practical matter is that in general, the police don’t have to legally justify why they are using drug dogs. As long as the police legally have a right to be where they are and you aren’t being illegally detained in some fashion, the use of a drug dog is legal.

This issue of drug dogs is already a big deal at Australian music festivals. (Festival Lawyer Sidenote: In Australia, drug dogs are called “sniffer dogs” which seems like a much more friendly term.)

A study of Australian music festivals showed that 1) Sniffer dogs really didn’t seem to do anything to alter festival goers behavior when it came to drug use and 2) The only real effect they seem to have is to cause a small percentage of festival-goers to freak out and try to take ALL of the drugs they have on them before going in.

Over time, more and more Australian festivals have used sniffer dogs to justify some very invasive searches of their patrons. I’m talking“turn your head and cough” type of searches. In fact, the Green political party of Australia has been fighting a “Sniff Off” campaign in which they are seeking to ban drug dogs at festivals and other public places

Back in the USA, when it comes to festivals that incorporate drug dogs into their entrance searches, you really have very few rights. Your only real option is to spend your money elsewhere and encourage your friends to do the same. Personally, I don’t want to festival at a place that makes me feel like I am a “new fish” entering a prison yard. I would much rather support festivals that are introducing harm reduction measures and have a good relationship with local law enforcement. 

(Festival Lawyer Sidenote: Careful readers of ATFL will already know that, as to this week’s particular question, the person who asked this initial question might have an argument that the search was illegal because it was a search of a tent without a warrant.) 

The other way in which you might encounter a drug dog is if you get stopped on your way to a festival. Unfortunately, if you regularly take road trips to festivals, you know that “festie vehicles" can sometimes be a target for law enforcement. For example, this year at Bonnaroo, Rutherford County Sheriff’s deputies patrolled Interstate 24 (the main freeway on the way to Manchester) stopping cars and using drug dogs.

If you know you are driving into a situation like this, the best advice is to make sure you car isn’t “rolling probable cause.” This is a slang term that cops sometimes use for a vehicle that has an ongoing minor traffic violation (like a broken taillight) which gives the police the authority to stop that vehicle and investigate the occupants at any time. If you’ve heard this term before, you might be a fan of the show Archer.

Before you start your festival road trip, take some time to make sure you are not attracting undue attention to your car. For example, avoid writing phrases like “Carpoolchella” or “Wakarusa Bound” or anything else which might “flag” your car as a target for the police. More importantly, keep your car in good running order. Make sure your license, insurance and registration are current. Make sure your lights and brake lamps work.

As I mentioned, drug dog searches aren’t considered searches at all. In other words, if the cops have a reason to detain you there is no search. But the key part of that phrase is “legal detention.” This year in a case called, Rodriguez v. United States, the Supreme Court gave everyone a powerful new right when it comes to drug dog searches.

In Rodriguez, the Supreme Court ruled that the police cannot extend the length of a traffic stop, even very briefly, to conduct a fishing expedition to determine whether the vehicle contains drugs. In this case, Mr. Rodriguez was stopped for a traffic code violation. The officer spoke to Rodriguez and his passenger, conducted a record check on the two men, and gave Mr. Rodriguez a ticket.

The officer then asked for permission to search the car. Mr. Rodriguez did not consent to the search. The officer then continued to detain Mr. Rodriguez while waiting for a second officer to arrive. He then led a drug dog around the car and discovered drugs in the vehicle.

Though the drug dog sniff only extended the length of the stop for “seven to eight minutes,” the Supreme Court ruled that even this brief extended detention was illegal.

“The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns…Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.'”

If you do have to run a “drug dog gauntlet” to get to your favorite festival, be sure to take a look at this short YouTube video I’ve prepared with key tips on avoiding being stopped and searched by the police.