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 

Department o f Defense regulations to authorize the United States Postal Inspection 

Service to use Navy drug-detecting dogs and their handlers to identify postal packages 

containing illegal narcotics

October 10, 1989

M e m o r a n d u m O pin io n f o r t h e A s s is 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 drugdetecting dogs, guided by Navy handlers, to identify postal packages containing illegal narcotics. Upon review of the provision of the Posse 

Comitatus Act contained in 18 U.S.C. § 1385, as well as related provisions 

in title 10, we conclude that the Secretary of 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 enforcement during the Reconstruction era. In its current form, the central provision of the Act provides that:

Whoever, except in cases and under circumstances expressly 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 of 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 of the 

Posse Comitatus Act. The use o f military dog 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 of the Navy, Re Request for Loan of 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 of 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)

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willfully uses any part of 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 of Navy was a drafting oversight but conceding that Navy 

actions would not violate the letter of the Act).

As a matter of 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 of 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 of the U.S. Code to provide for certain types 

of military cooperation with civilian law enforcement officials. In particular, chapter 18 provides that the Secretary of Defense “may ... make 

available any equipment... of the Department of Defense to any Federal, 

State, or local civilian law enforcement official for law enforcement purposes.” 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 purposes of 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 

of military power that is regulatory, proscriptive, or compulsory in nature” require the advance approval 

of the Secretary of Defense, as well. 32 C FR. § 213 10(c)(2)

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In section 375, however, Congress provided that the provision of equipment to civilian law enforcement personnel under section 372 does not 

permit “direct participation by a member of 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 (emphasis added). Thus, some question 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 of 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 of the executive branch in the use 

of military personnel or equipment for civilian law enforcement purposes 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 involvement 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 of the conferees that the 

restrictions on the assistance authorized by the new chapter [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 of any current regulations applying the policies 

and terms of 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” of military 

forces in civilian law enforcement. Here, by contrast, Navy dogs and per3 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 of any agency or instrumentality o f the Federal Government to furnish assistance ... to him for carrying out his functions [concerning the control of drug trafficking!.” 21 

U.S C. § 873(b).

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sonnel would merely identify packages containing drugs. As we understand the proposal, the actual “search and seizure” of the package would 

be performed by civilian Postal Inspectors.5 The legislative history of section 375 shows that Congress intended that provision to bar only the 

exercise of military authority in direct confrontations with civilians.6 

During the hearings on chapter 18, for example, Representative Hughes, 

the Chairman of 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 of 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 of a civilian statute, that causes us the greatest concern.

Id. at 30.

These observations were by no means novel. The Appendix of materials 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 of civilian officials.” Id. at 540, reprinting Letter for Deanne Siemer, General Counsel, Department of Defense, 

from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal

6 The precise relationship between constitutional doctrines o f “search and seizure” and the meaning of 

the same terms in section 375 remains unclear The Supreme Court has held, however, that the use of 

drug-detecting dogs to identify luggage containing drugs does not constitute a “search” for purposes of 

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.

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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 of the Navy retains the discretion under 

the Posse Comitatus Act and Department of Defense regulations to 

authorize the use by the Postal Inspector of Navy drug-detecting dogs and 

their handlers to identify packages containing illegal narcotics. The provision in 10 U.S.C. § 375 restricting the direct participation of military personnel 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 of Defense regulations 

to make exceptions to the application of the Posse Comitatus Act and (ii) 

the proposed use of the dogs and their handlers will not involve confrontation with civilians.

WILLIAM P. BARR

Assistant Attorney General

Office of 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 amendments 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 of a vessel or 

aircraft.” H.R. Conf. Rep No. 989, 100th Cong., 2d Sess. 452 (1988). Congress thus clarified that such preliminary law enforcement tasks as “detection” do not come within section 375, whereas actual “physical 

interference” with a civilian remains barred by that provision’s reference to “seizure[s]." Id

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