The Supreme Court has given us another reminder of why individuals should never consent to anything when approached by law enforcement conducting investigations.
Police all too often look for reasons to extend a legitimate traffic stop to allow time for canine unit to arrive to conduct dog sniff of vehicle. In April, The United States Supreme Court addressed this issue head on and held that absent reasonable suspicion, delaying a traffic stop longer than is necessary to complete the mission of the traffic stop violates the Forth Amendment.
James Walker, the former director of the Sensory Institute at Florida State University, has said that a dog’s sense of smell is “10,000 times better” than humans. The canine’s legendary sense of smell is why law enforcement has for years used them to track fleeing fugitives, alert to the scent of drugs, detect bombs or bomb-making materials, and ferret out of host of other forms of contraband. The drug sniff dog has become a fixture in the nation’s law enforcement’s war on drugs.
But how accurate are these drug dogs?
Traffic stop data from the Springfield, Illinois Police Department revealed that the police found drugs in just 25 percent of the 51 vehicle searches conducted in 2012, following an alert by the drug dog. A 2011 study conducted by the Chicago Tribune and reported by Dan Hinkel & Joe Mahr found that in one Illinois police precinct dogs erroneously alerted for drugs 56 percent of the time with the error rate among Hispanics being worse, 73 percent, begging questions of dog handler’s suggestion, manipulation and fabrication.
This evidence notwithstanding, the U.S. Supreme Court in 2005 in Illinois v. Caballes held that a dog sniff during a lawful traffic stop does not violate the Fourth Amendment’s prohibition of unreasonable searches. Two years ago, however, the Supreme Court in Florida v. Jardines held that the police cannot use drug dogs to trespass on real property (land/home) without probable cause. Why the difference? Essentially, because a vehicle is considered movable personal property that does not enjoy the elevated privacy protections as land and dwellings.
The Court, however, recently qualified Caballes in Rodriquez v. United States.
In March 2012, just after midnight, police officer Morgan Struble observed a vehicle swerve onto the shoulder of a Nebraska highway. The vehicle remained on the shoulder for a brief one or two seconds before being jerked back onto the highway. This was a violation of Nebraska traffic laws sufficient to warrant a traffic stop by officer Struble who is a K-9 officer with the Valley Police Department. The officer’s canine, Floyd, was in the vehicle with him at the time the stop was initiated. The officer discovered two men in the Mercury Mountaineer: Dennys Rodriquez, the driver, and Scott Pollman, a passenger.
The officer identified himself after approaching the vehicle on the passenger side. When asked why he swerved onto the shoulder, Rodriquez responded that he was trying to avoid a pothole. After gathering Rodriquez’s personal information, officer Struble asked him to accompany the officer to his patrol car. Rodriquez asked if he was required to do so, and was informed by the officer that he was not. Rodriquez elected to remain in his vehicle.
After conducting a background check on Rodriquez, officer Struble returned to the Mountaineer and requested Pollman’s personal identification. He began to question the two men about where they had been and where they were going. Pollman informed the officer they were returning from Omaha where they had looked at a Ford Mustang for sale and were going to Norfolk. Officer Struble returned to his vehicle. After conducting a background check on Pollman, the officer summoned for backup assistance. Struble then began to write a warning ticket to Rodriquez.
Some 22 minutes after the stop, officer Struble returned to the Mountaineer and gave Rodriquez the warning ticket and all the documents he had taken from him and Pollman. The officer would later testify that at that point, he had gotten “out of the way” the reason for the initial traffic stop. The officer said he did not consider Rodriquez free to leave and asked Rodriquez for permission to walk his dog around the Mountaineer. Rodriquez complied. At that point, a second officer arrived on the scene—some 28 minutes after the initial stop, and some six to seven minutes after officer Struble had given Rodriquez the warning ticket. The police dog alerted to drugs and the two officers found a large bag of methamphetamines during an ensuing search.
Rodriquez’s was convicted. The illegal search issue ultimately reached the Supreme Court. On April 21, the court held that absent a reasonable suspicion, the extension of a lawful traffic stop to conduct a dog sniff violates the Fourth Amendment’s prohibition against unreasonable searches. The Court reasoned that while the Fourth Amendment may permit investigations unrelated to the traffic stop so long as they do not extend the stop, a traffic stop becomes intolerable when it is extended beyond the time it reasonably takes to complete the purpose of the stop. A dog sniff, the court said, is not part of an officer’s mission during a traffic stop like securing vehicle registration, licenses and background checks.
The Court rejected the Government’s argument that an officer who “completes all traffic-related tasks expeditiously should earn more time to pursue an unrelated criminal investigation.” The Court reaffirmed its position in Caballes that a “prolonged” extension of a traffic stop, without reasonable suspicion, beyond its initial mission is unlawful. “The critical question,” the court said, “is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.”
If it does, the dog sniff is illegal.
So take heed drivers. Never give consent for a dog sniff, especially when the request is made after the officer has issued a ticket or warning. Had Rodriguez consented to the detention and search in this case, the result would have been completely different.