       Use of Department of Defense Drug-Detecting
         Dogs to Aid in Civilian Law Enforcement

Lending Department of Defense drug-detecting dogs to civilian law enforcement officials
  and training the officials to handle the dogs is permitted by the Posse Comitatus Act.

The use of Department of Defense personnel to search, but not seize, materials is permissi­
  ble if there are no persons present with whom a confrontation might arise.

The restrictions of 10 U S.C. § 375 are inapplicable to the Navy and the Marine Corps.
  Therefore, the use of Naval and Marine drug-detecting dogs lies within the discretion of
  the Secretary of the Navy and the Secretary of Defense.

                                                                             June 23, 1989

               M e m o r a n d u m O p in io n   fo r the   A ttorney G en eral


   You have asked for a brief summary o f the laws pertaining to the use o f
drug-detecting dogs owned by the Department o f Defense ( “DoD”) and
handled by DoD personnel in civilian law enforcement. In particular, you
have asked us to address the extent to which the Posse Comitatus Act, 18
U.S.C. § 1385, as amended, may limit the ability o f the military to lend
such assistance to civilian law enforcement officials.
   The Secretary o f Defense may lend “equipment” to “ law enforcement
official[s] for law enforcement purposes.” 10 U.S.C. § 372. The Secretary
o f Defense is also authorized to assign personnel to train civilian law
enforcement officials in the operation and maintenance o f loaned equip­
ment. 10 U.S.C. § 373. If the dogs were capable o f being loaned without
their handlers or if training were a practical alternative, we would have
no difficulty in concluding that drug-detecting dogs are “equipment” that
may be loaned to civilian law enforcement officials, who may then be
trained by DoD personnel to handle the dogs. We are informed, however,
that these dogs can only be used with their DoD handlers. Therefore, we
must consider as well the restrictions upon the use o f DoD personnel.

  Congress has directed the Secretary o f Defense to

        prescribe such regulations as may be necessary to ensure
        that the provision o f any support (including the provision
        o f any equipment or facility or the assignment or detail of
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          any personnel) to any civilian law enforcement official
          under this chapter does not include or permit direct partic­
          ipation by a member o f the Army, Navy, Air Force, or
          Marine Corps in a search and seizure, an arrest or other
          similar activity unless participation in such activity by such
          member is otherwise authorized by law.

10 U.S.C. § 375. At first blush, the statute’s prohibition on participation in
a “search and seizure” may be thought to proscribe use o f drug-detecting
dogs and their handlers. The legislative history, however, indicates that
the purpose o f this provision is to avoid confrontations between civilians
and members o f the military.1 Reading this legislative history together
with the statute’s use of the phrase “direct participation,” we conclude
that the statute reasonably may be read to permit the use o f drug-detecting
dogs and their handlers with respect to a search as long as that search is
not conducted in conjunction with a seizure. Thus, we believe that drug-
detecting dogs may be used in searches o f packages and places in the
absence o f persons with whom a confrontation may arise, as long as the
actual seizure is made by civilian law enforcement personnel.
   Finally, we note that section 375 need not be read as limiting even the
direct participation o f Navy or Marine Corps personnel in supporting
civilian law enforcement efforts.2 The Posse Comitatus Act by its terms
does not apply to the Navy.3The purpose o f the 1981 Amendments was to
expand, and not contract, the existing “authority o f the executive branch
in the use o f military personnel or equipment for civilian law enforcement
purposes.” 10 U.S.C. § 378. Thus, we believe the Navy and the Marine
Corps continue to be exempt from the Act’s restrictions, notwithstanding
the reference in section 375. By regulation, however, the Navy has accept­
ed the restrictions o f the Posse Comitatus Act. See 32 C.F.R. § 213.10(c)
(1988). That regulation may be waived, abrogated, or amended by the
Secretary o f the Navy to provide for the participation o f drug detection
personnel in civilian law enforcement operations. With such a change to
the regulation, Navy and Marine Corps drug-detecting dogs and their han­
dlers may be used fully in the civilian enforcement o f the laws.


 1See, e g., Posse Comitatus Act. Hearings on H.R. 3519 Before the Subcomm. on Crime o f the House
Comm, on the Judiciary , 97th Cong., 1st Sess. 28, 65, 538 (1981)
  2 OLC has been asked by the Hawaii Postal Inspector and the Navy whether Naval drug-detecting dogs
and their handlers may be loaned to the P o st Office to inspect packages. Even assuming that section 375
applies to the Navy, w e think the Navy may lend these dogs and their handlers to the Post Office A fuller
opinion on this issue is forthcoming.
  3The A ct provides1
      Whoever, except in cases and under circumstances expressly authorized by the Constitution
      or any A ct o f Congress, willfully uses any part o f the Arm y or A ir Force as a posse comitatus
      o r otherw ise to execute the laws shall be fined not m ore than $ 10,000 or imprisoned not more
      than tw o years, or both.
18 U.S C. § 1385


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   In sum, lending DoD drug-detecting dogs to civilian law enforcement
personnel and training them to handle the dogs is plainly permitted by the
Posse Comitatus Act, as amended. Use o f DoD personnel to search, but
not seize, materials is permissible in the absence o f persons with whom
a confrontation might arise. Finally, we believe that the restrictions o f 10
U.S.C. § 375 are inapplicable to the Navy and the Marine Corps, and there­
fore, that use o f Naval and Marine drug-detecting dogs lies within the dis­
cretion of the Secretary o f the Navy and the Secretary o f Defense.

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




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