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Dog-Sniff Search Policy Allowed Under Massachusetts Law, but APA Procedures Required

The Massachusetts Supreme Judicial Court held on April 19, 2018 that the Massachusetts Department of Correction (MDOC) had authority to implement a policy that requires prison visitors to be subject to drug-detecting dogs. However, the Court also found the MDOC had failed to meet the requirements of the Administrative Procedure Act (APA).

In early 2013, Massachusetts prison officials announced they would begin subjecting prison visitors to searches by drug-detecting dogs. They announced the new policy via videos played in prison lobbies, on YouTube and on the MDOC’s website.

Michael Carey, Gatewood Wert and Brenda Frazier filed suit seeking declaratory relief that the new policy was not authorized by the MDOC’s existing regulations, plus an injunction enjoining the MDOC from implementing the policy as it had not been promulgated pursuant to the APA.

Two separate Superior Courts denied relief. On its own motion, the Supreme Judicial Court assumed jurisdiction over the appeal. The plaintiffs argued the dog-sniff search policy was contrary to existing regulations that only allow searches similar to metal detectors and personal searches.

The Court disagreed in a unanimous ruling. It saw “nothing in the language of the general regulation that precludes a canine search. On the contrary, by using ‘shall,’ the regulation mandates that the search procedure be effective in preventing smuggling of contraband into correctional facilities.”

On the question of whether the MDOC was required to follow the APA’s procedures to implement the new policy, the Court held the policy was not exempt from the APA. While the Court typically gives great deference to an agency’s interpretation of its own regulations, it does not defer to its interpretation of the APA.

Such deference applies to internal management alone, and the dog-sniff policy at issue “substantially affects the procedures available to visitors to correctional facilities.” The MDOC’s decision to broadcast information about the policy evidenced that it was applicable to members of the public, including visitors, and not directed toward its employees.

As such the MDOC’s dog-sniff policy was allowed by its regulations, but the Supreme Judicial Court directed the Superior Court to declare the department was required to follow the APA in implementing that policy. It also ordered, in light of the security concerns involved, that the case be stayed for 180 days so the MDOC could follow the APA, although prison officials were allowed to enforce the policy in the interim. See: Carey v. Commissioner of Correction, 479 Mass. 367, 95 N.E.3d 220 (Mass. 2018). 

Additional source: The Boston Globe

Related legal case

Carey v. Commissioner of Correction


 

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