Use of Navy Drug-Detecting Dogs by Civilian Postal Inspectors

Opinion

Use of Navy Drug-Detecting Dogs by Civilian Postal Inspectors

The Secretary o f the Navy retains the discretion under the Posse Comitatus A ct and D epartm ent o f D efense regulations to authorize the United States Postal Inspection Service to use Navy drug-detecting dogs and their handlers to identify postal packages containing illegal n arcotics

October 10, 1989

M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C r im in a l D iv is io n

On March 25, 1988, your office requested our advice on whether the Navy may authorize the U.S. Postal Inspection Service to use Navy drug- detecting dogs, guided by Navy handlers, to identify postal packages con­ taining illegal narcotics. Upon review o f the provision o f the Posse Comitatus Act contained in 18 U.S.C. § 1385, as well as related provisions in title 10, we conclude that the Secretary o f the Navy has the discretion to authorize such a use of Navy dogs and their handlers.1

I. The Posse Comitatus Act

Congress enacted the Posse Comitatus Act (“Act”) in 1878 to address Southern objections to the use of federal troops in civilian law enforce­ ment during the Reconstruction era. In its current form, the central pro­ vision o f the Act provides that:

Whoever, except in cases and under circumstances ex­ pressly authorized by the Constitution or Act of Congress,

1 This conclusion is consistent with an earlier memorandum prepared by this Office See Use of Department o f Defense Drug-Detectmg Dogs to Aid in Civilian Law Enforcement, 13 Op. O.L.C 185 (1989) ( “OLC Memorandum”). Several officials have sided with the contrary view o f James F Goodrich, then-Under Secretary o f the Navy, that “the requested support is in conflict with the provisions o f the Posse Comitatus Act. The use o f military d og handlers is considered to constitute direct involvement in law enforcement activities and is thus illegal.” Memorandum for Commander in Chief o f the U.S. Pacific Fleet, from James F. Goodrich, Under Secretary o f the Navy, Re Request fo r Loan o f Military Dogs (June 6, 1987). See Memorandum for Deputy Assistant Secretary o f Defense for Drug Policy and Enforcement, from Robert L. Gilliat, Assistant General Counsel, Department of Defense, Re- Use o f Navy Drug Dog Detection Teams to Inspect U S Mails (Jan. 20, 1988); Letter for Captain Howard Gehnng, Director, National Narcotics Border Interdiction System, Office o f the Vice President, from Stephen G Olmstead, Deputy Assistant Secretary, Drug Policy and Enforcement (Jan. 21, 1988)

313

willfully uses any part o f the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. § 1385. By its terms, section 1385 does not apply to the Navy; the words of the statute cover only the Army and the Air Force. Moreover, courts considering the issue have held that the Act does not apply to the Navy except by executive extension. United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert, denied, 479 U.S. 839 (1986); United States v. Del Prado-Montero, 740 F.2d 113, 116 (1st Cir.), cert, denied, 469 U.S. 1021 (1984). See Memorandum for State Department Legal Advisor, from Michael A. Carvin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Assignment of Marine Personnel to the U.S. Mission to the United Nations at 8 (May 10, 1988). See also United States v. Walden, 490 F.2d 372, 374-76 (4th Cir.), cert, denied, 416 U.S. 983 (1974) (suggesting that omission o f Navy was a drafting oversight but conceding that Navy actions would not violate the letter of the Act).

As a matter o f policy, the Department of Defense has extended the Posse Comitatus Act to the Navy through regulations. 32 C.F.R. § 213.10(c) (1988). Those regulations make clear, however, that the Secretary of the Navy retains the discretion to except situations from the Act’s coverage “on a case-by-case basis.” 2 Id. Thus, we conclude that under the Posse Comitatus Act, the Secretary, within his discretion, may authorize the use o f Navy drug dogs and their handlers contemplated by the Postal Inspector.

II. 10 U.S.C. Chapter 18

In 1981, Congress revisited the question of military involvement in civilian law enforcement. Although Congress did not alter section 1385, it did add chapter 18 to title 10 o f the U.S. Code to provide for certain types of military cooperation with civilian law enforcement officials. In partic­ ular, chapter 18 provides that the Secretary of Defense “may ... make available any equipment... of the Department o f Defense to any Federal, State, or local civilian law enforcement official for law enforcement pur­ poses.” 10 U.S.C. § 372. No one has questioned (and we have no reason to doubt) that drug-detecting dogs are to be considered “equipment” for pur­ poses o f this provision. Thus understood, section 372 provides express authorization for that which section 1385 does not bar: the loaning of Navy dogs to civilian law enforcement authorities.

2 Exceptions that are likely to involve participation by Navy personnel in the “interdiction o f a vessel or aircraft, a search or seizure, an arrest, or other activity that is likely to subject civilians to the exercise o f military power that is regulatory, proscriptive, or compulsory in nature” require the advance approval o f the Secretary o f Defense, as well. 32 C FR. § 213 10(c)(2)

314

In section 375, however, Congress provided that the provision of equip­ ment to civilian law enforcement personnel under section 372 does not permit “direct participation by a member o f the Army, Navy, Air Force, or Marine Corps in a search and seizure, an arrest, or other similar activ­ ity unless participation in such activity by such member is otherwise authorized by law.” 10 U.S.C. § 375 (emphasis added). Thus, some ques­ tion remains whether section 375 would permit the Navy also to provide the Postal Inspector with the Navy dogs’ handlers, without whom the dogs would be useless.3 For two reasons, we conclude that section 375 does not bar the Postal Inspector’s use o f the Navy dogs and their handlers. First, in the 1981 enactment, Congress made clear that nothing in the new provisions was to be “construed to limit the authority o f the executive branch in the use o f military personnel or equipment for civilian law enforcement purpos­ es beyond that provided by law before December 1, 1981.” 10 U.S.C. § 378. Thus, Congress did not intend in 1981 to bar any military involve­ ment in civilian law enforcement that had been permissible under section 1385 and the Department of Defense regulations enacted thereunder. The Conference Report confirms this conclusion. It states that:

Section 378 clarifies the intent o f the conferees that the restrictions on the assistance authorized by the new chap­ ter [18] in title 10 apply only to the authority granted under that chapter. Nothing in this chapter should be construed to expand or amend the Posse Comitatus Act. In particular, because that statute, on its face, includes the Army and Air Force, and not the Navy and Marine Corps, the conferees wanted to ensure that the conference report would not be interpreted to limit the authority of the Secretary of Defense to provide Navy and Marine Corps assistance under, for example, 21 U.S.C. 873(b). However, nothing in this chapter was in any way intended to rescind or direct the recision o f any current regulations applying the policies and terms o f the Posse Comitatus Act to the activities of the Navy or Marine Corps.

H.R. Conf. Rep. No. 311, 97th Cong., 1st Sess. 122 (1981).4 Second, section 375 prohibits only the “direct participation” o f military forces in civilian law enforcement. Here, by contrast, Navy dogs and per­

3 Although 10 U S.C. § 373(1) would permit Navy personnel to train civilian Postal Inspectors to handle the dogs, we understand that substitution o f different human handlers is not practicable 4 The provision cited as an example by the Conference Report specifies that, upon a request by the Attorney General, “it shall be the duty o f any agency or instrumentality o f the Federal Government to fur­ nish assistance ... to him for carrying out his functions [concerning the control o f drug trafficking!.” 21 U.S C. § 873(b).

315

sonnel would merely identify packages containing drugs. As we under­ stand the proposal, the actual “search and seizure” o f the package would be performed by civilian Postal Inspectors.5 The legislative history o f sec­ tion 375 shows that Congress intended that provision to bar only the exercise o f military authority in direct confrontations with civilians.6 During the hearings on chapter 18, for example, Representative Hughes, the Chairman o f the Subcommittee on Crime, observed that:

I can understand where you might have to have military personnel, actually operate [in a law enforcement capacity] under given circumstances. I understand that. But that is a long way from giving them the authority to make an arrest or to make a seizure.

An assist, as opposed to a military person making an arrest or participating in a seizure is an important distinction.

Posse Comitatus Act: Hearing on H.R. 3519 Before the Subcomm. on Crime of the House Comm, on the Judiciary, 97th Cong., 1st Sess. 28 (1981). During the same exchange, William H. Taft IV, then-General Counsel o f the Department of Defense, concurred with Representative Hughes’s distinction by stating that:

I think that you have correctly identified the significance of the arrest and the seizure actions.... I think that it is the arrests and the seizures, and active — putting, really, into a confrontation, an immediate confrontation, the military and a violator o f a civilian statute, that causes us the great­ est concern.

Id. at 30.

These observations were by no means novel. The Appendix o f materi­ als before the Subcommittee contains an opinion by this Office noting that the Posse Comitatus Act does not prohibit military assistance to civilian law enforcement where “there is no contact with civilian targets of law enforcement, no actual or potential use of military force, and no military control over the actions o f civilian officials.” Id. at 540, reprint­ ing Letter for Deanne Siemer, General Counsel, Department o f Defense, from Mary C. Lawton, Deputy Assistant Attorney General, Office o f Legal

6 The precise relationship between constitutional doctrines o f “search and seizure” and the meaning o f the same terms in section 375 remains unclear The Supreme Court has held, however, that the use o f drug-detecting dogs to identify luggage containing drugs does not constitute a “search” for purposes o f the Fourth Amendment United States v Place, 462 U S. 696, 707 (1983).

GThis position is consistent with our earlier guidance concerning section 375. See OLC Memorandum, 13 Op. O.L.C at 186.

316

Counsel at 13 (Mar. 24, 1978).7 Accordingly, where, as here, the Navy dogs and personnel will not be used in direct confrontations with civilians, section 375 would not bar their use in civilian law enforcement efforts.

III. Conclusion

We conclude that the Secretary o f the Navy retains the discretion under the Posse Comitatus Act and Department of Defense regulations to authorize the use by the Postal Inspector o f Navy drug-detecting dogs and their handlers to identify packages containing illegal narcotics. The pro­ vision in 10 U.S.C. § 375 restricting the direct participation o f military per­ sonnel in civilian law enforcement efforts does not prevent the Secretary from authorizing the proposed use because (i) that provision does not limit the Secretary’s authority under Department o f Defense regulations to make exceptions to the application o f the Posse Comitatus Act and (ii) the proposed use o f the dogs and their handlers will not involve con­ frontation with civilians.

WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel

7 Subsequent congressional action with respect to section 375 confirms this understanding o f the 1981 legislative history In 1988, Congress amended section 375 by deleting from the list o f prohibited activities “interdiction o f a vessel or aircraft ” See 10 U.S C. § 375 note The Conference Report on the 1988 amend­ ments states that Congress took such action “because the term ‘interdiction’ has acquired a meaning that includes detection and monitoring as well as a physicaJ interference with the movement o f a vessel or aircraft.” H.R. Conf. Rep No. 989, 100th Cong., 2d Sess. 452 (1988). Congress thus clarified that such pre­ liminary law enforcement tasks as “detection” do not com e within section 375, whereas actual “physical interference” with a civilian remains barred by that provision’s reference to “seizure[s]." Id