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Dogs: A Search vs. a Sniff

What makes you more likely the target of a drug cop on the Interstate? Texas Officer Tracey Freeman says,

[he]targets the drivers who go 5 mph over the speed limit, or who change lanes without signaling first. He checks to see if people's license plates are lighted, or whether they're wearing seatbelts.

So where do the dogs come in?

After stopping a car for a minor violation, Freeman, Gregg County's crime interdiction officer, walks up to the front passenger's window. He checks insurance and driver's license, studies the car's occupants to see if they're nervous, and he smells for marijuana. He introduces himself and asks where they're headed.

If Freeman thinks they're hauling drugs, he'll ask to search the car. In three years fewer than 10 people have refused. But if they do, or if he can't find anything and is still suspicious, he brings in Luctor the drug dog.

The Supreme Court is set to deliver a decision on drug dogs this term.

Though Freeman says he doesn't use Luctor unless he's seen indicators of illegal activity, some law officers use drug dogs during routine traffic stops. That practice is before the Supreme Court, and justices will decide whether people who have given police no reason to suspect illegal activity have a constitutional protection against dog searches.

At issue:

The Supreme Court has tried in recent years to better define people's right to be left alone in their homes and vehicles. In this case, it must clarify earlier opinions that found that the use of drug-sniffing dogs is not necessarily a search that falls under the Fourth Amendment ban on unreasonable searches or seizures.

"A sniff is not a search," Illinois Attorney General Lisa Madigan told the justices. Chicago attorney Ralph Meczyk, representing Caballes, countered: "It is accusatory. It is profoundly embarrassing."

Justice Souter got it right at the oral argument:

"We're opening a large vista for dog intrusion," he said, adding that he was worried about officers canvassing garages and neighborhoods with animals. Police "can take a dog to a front door and ring the bell and see what happens."

Just like they do in "knock and talks." I can picture it now, my first Motion To Suppress Knock and Sniff.

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  • Re: Dogs: A Search vs. a Sniff (none / 0) (#1)
    by Talkleft Visitor on Mon Jan 10, 2005 at 04:03:52 AM EST
    here in russell county, kansas, our trusty police force just bought a couple of new cruisers with property stolen from drug runners. seems like this new source of income is available for a bag of kibblepeace

    Re: Dogs: A Search vs. a Sniff (none / 0) (#3)
    by pigwiggle on Mon Jan 10, 2005 at 07:41:35 AM EST
    It is entirely clear to me that using a dog to search the ‘surrounding air’ of a vehicle is simply an unwarranted search of that vehicle. The war on drugs continues to poison the liberties of all, not just folks who want to get high.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#4)
    by wishful on Mon Jan 10, 2005 at 07:49:26 AM EST
    nemo, Bingo! By George, I think you've got it. And the Supremes also said it's ok to ask for identification. "I vant to zee your papaz!"

    Re: Dogs: A Search vs. a Sniff (none / 0) (#5)
    by Ernesto Del Mundo on Mon Jan 10, 2005 at 08:15:51 AM EST
    But if they do, or if he can't find anything and is still suspicious, he brings in Luctor the drug dog. Still suspicious = Mexican-looking occupants

    Re: Dogs: A Search vs. a Sniff (none / 0) (#6)
    by Patrick on Mon Jan 10, 2005 at 08:25:01 AM EST
    For it to be a search under current law, there must be intrusion into an area where there is a reasonable expectation of privacy. A dog sniffing the scent from an area around is no search, and I think that's how they will rule. Now if you want to talk unreasonable detention while waiting for the dog to arrive, then you may have an argument.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#7)
    by kdog on Mon Jan 10, 2005 at 09:41:13 AM EST
    Somebody is always looking for a loophole to get around our pesky civil rights. Reminds me of Gonzalez/Bush looking for loopholes to torture. All the while freedom dies a slow death.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#8)
    by scarshapedstar on Mon Jan 10, 2005 at 09:54:39 AM EST
    "A dog sniffing the scent from an area around is no search" Why not? Are we to believe the cop is just passing through?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#9)
    by Patrick on Mon Jan 10, 2005 at 09:58:44 AM EST
    Scar, Because there can be no REASONABLE expectation of privacy

    Re: Dogs: A Search vs. a Sniff (none / 0) (#10)
    by Talkleft Visitor on Mon Jan 10, 2005 at 10:10:52 AM EST
    What if the dog is not a cat lover? or maybe he can't stand people, what a joke of a so called system, can we say third world.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#11)
    by Patrick on Mon Jan 10, 2005 at 10:30:46 AM EST
    Can we say medication, and lots of it...

    Re: Dogs: A Search vs. a Sniff (none / 0) (#12)
    by Talkleft Visitor on Mon Jan 10, 2005 at 12:56:55 PM EST
    The reasonable expectation of privacy I have in the air outside my car when a dog is used to "investigate" it is the same reasonable expectation of privacy I have in the air outside my home when police use a thermal scanner to investigate its temperature. See Kyllo Both are tools used to determine the contents of an area when the police could not otherwise examine without a search warrant. If you're interested, I did a series of posts about this a while back which are now referenced on my blog as Canine Searches 1, 2, & 3.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#13)
    by Patrick on Mon Jan 10, 2005 at 01:04:46 PM EST
    Ken, Except the air around you car contains scent particles which are different from heat waves. We'll see. I've given my prediction, and there are many cases which support it in the lower courts.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#14)
    by Patrick on Mon Jan 10, 2005 at 01:51:15 PM EST
    ...and a vehicle is quite a bit different from a residence...no?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#15)
    by kdog on Mon Jan 10, 2005 at 01:58:32 PM EST
    Why does Tracey Freeman want to get in everyone's business anyway? Unless they are fleeing a crime scene, or are driving erratically, leave them the hell alone. Is that too much to ask?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#16)
    by Patrick on Mon Jan 10, 2005 at 02:49:41 PM EST
    Kdog, Drug INTERDICTON. That's why. Whether you agree with it or not, aome drugs are currently illegal.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#17)
    by Talkleft Visitor on Mon Jan 10, 2005 at 03:00:43 PM EST
    Ken and Patrick - you lost me... If the officer's suspicions are aroused in any way (even profiling), then the officer has PROBABLE CAUSE to search your vehicle. Once probable cause is invoked, what difference does the dog search make except as one more form of search?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#18)
    by Patrick on Mon Jan 10, 2005 at 03:23:07 PM EST
    Suspicion does not always equate to an extended detention. There has to be more than just a gut feeling. You need specific articulable facts to allow an extended detention. We just disgree on whether a K-9 sniff is a search under the law. I don't think it is and I think the courts will side with me.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#19)
    by Talkleft Visitor on Tue Jan 11, 2005 at 06:04:53 AM EST
    Patrick, Sadly, I think you are right about how the Supreme Court will rule. And I agree that, with the exception of the 5th and 9th Circuit rulings that sniffing the air around a person is a search, lower appellate courts have allowed this abuse. However, the fact that it is supported by caselaw does not mean it is supported by logic. The statement that dogs are sui generis cannot be substantiated; they are tool just like the one in Kyllo - the fact that the tool is biological should not differentiate it from technological tools. And yes, much to our discredit the courts have abrogated a great deal of the 4th Amendment if we ever leave our homes.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#20)
    by kdog on Tue Jan 11, 2005 at 06:11:07 AM EST
    That's fine Patrick, let them get a warrant, instead of harassing free Americans w/o just cause. Not wearing a seat belt is not just cause to search for drugs, or at least shouldn't be.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#21)
    by Talkleft Visitor on Tue Jan 11, 2005 at 06:21:16 AM EST
    mfox, Police are allowed very limited contact (in theory) based merely on suspicion. The most they are supposed to do is pull someone out of his car and pat him down for weapons if they suspect he is dangerous. Of course, at least in my jurisdiction, they push this limit. Stopped because he has an air freshener on his rear view mirror (obstructing the view of the road) the driver will be patted down, asked if he has drugs on him or in the car, the officer will ask to search the car, and the drug dog will run past him and his car. Assuming there no agreement to a search, the usual reasons for the search are the driver's statements, something in plain sight, or the dog reacting. These are the things which establish probable cause, not the original suspicion. The issue that has become the focus of late is the one Patrick discusses: whether the amount of time spent waiting for a dog is an unconstitutional seizure. However, in my jurisdiction this would not be of much help because the street drug unit travels in a pack and the dog is there when the officer makes the stop. So, while the first officer is using the world's slowest computer to check the driver's license, the dog is run around the car and driver. Thus no seperate seizure, only a stop for that dangling air freshener.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#22)
    by kdog on Tue Jan 11, 2005 at 06:46:42 AM EST
    That's what I meant by loopholes. I know mj is illegal, but is it so terrible that it's worth eviscerating the Bill of Rights?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#23)
    by Talkleft Visitor on Tue Jan 11, 2005 at 07:22:18 AM EST
    the fact that the tool is biological should not differentiate it from technological tools. Well... not exactly. If an officer lawfully stops a vehicle for a traffic infraction and sees a joint on the passenger seat in plain view while issuing a ticket, the officer then has pc to search the vehicle, justifying an extended detention. Likewise, if the officer smells dope while writing the ticket, the plain smell exception to the warrant requirement, as well as the limited expectation of privacy in vehicles on a public roadway, would justify a search of the car. So if while the officer is writing the ticket, the officer's dog smells dope and alerts, the officer has pc to search the car, and this does not result in any greater intrusion on the driver's expectation of privacy. The dog's nose is no more a technology than the officer's eyes. So, unfortunately, drug-smelling dogs will be routine in traffic stops, at least where the driver is latin or black.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#24)
    by Patrick on Tue Jan 11, 2005 at 08:15:28 AM EST
    1538.5 (Nice name, haven't lost too many of those) So, unfortunately, drug-smelling dogs will be routine in traffic stops, at least where the driver is latin or black. Nice, inflammatory language. I suspect that your familiar with the California criminal justice system based on your name...So you must know that focusing your attention on only latinos or blacks would limit your success rate tremendously.... Ken, People v. White made in illegal to stop a vehicle in California for an air freshner hanging from the rear view mirror. Also, you need more than just suspicion for a "Terry" search. You need specific articulable facts that support your decision, otherwise you'll face a 1538.5 motion...

    Re: Dogs: A Search vs. a Sniff (none / 0) (#25)
    by Talkleft Visitor on Tue Jan 11, 2005 at 08:32:49 AM EST
    Thanks Ken and Patrick. However, as the dog is not the officer who makes the stop(although technically an officer??)under what premise is he brought to the scene? I would think that, if he walked by the scene accidentally and alerted, it would be acceptable. However, if he is brought out of his vehicle and invoked as a "tool" (similar to a breathalizer), why wouldn't that use of a search tool require my consent? If the dog is brought to the scene and allowed to smell, why can't an officer with a head cold hold me until an officer who can smell better arrives?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#26)
    by pigwiggle on Tue Jan 11, 2005 at 08:51:33 AM EST
    “The dog's nose is no more a technology than the officer's eyes.” This is ridiculous. The dog is used to extend the officers limited senses. It is simply a method to search a car from the outside without first obtaining pc. It is bad law.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#27)
    by Patrick on Tue Jan 11, 2005 at 08:54:58 AM EST
    Pig, Except that according to most courts, a dog sniff is not a search, but what it does do is give the Officer probable cause, and with the vehicle exception, no search warrant is required. We'll see if it's bad law.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#28)
    by pigwiggle on Tue Jan 11, 2005 at 09:19:15 AM EST
    “We'll see if it's bad law.” It forces some arbitrary distinction. A dog is ok, but a mechanical replica of a dog nose may not be. Or, perhaps a dog breed with a ‘super’ nose is ok, but one genetically modified isn’t. It seems more rational to either allow an extension of the officers senses or not, rather than defining arbitrary boundaries for every new technology.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#29)
    by Patrick on Tue Jan 11, 2005 at 09:59:27 AM EST
    Does it force and arbitrary distinction or is it a de facto search? I disagree on both counts, but feel free to keep trying. There are already mechanical devices that detect alcohol.....If it emits from you car and can be detected by any means, natural or technological, I believe you have no standing to object.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#30)
    by pigwiggle on Tue Jan 11, 2005 at 10:24:45 AM EST
    “Does it force and arbitrary distinction or is it a de facto search?” Both; it allows the officer to indirectly inspect the interior of the car when he would otherwise be unable to. Why not allow x-ray imaging if it was as convenient as the dog’s inspection? “If it emits from you car and can be detected by any means, natural or technological, I believe you have no standing to object.” Are we arguing about the expectation of privacy or the use of technology? How would you feel if, in place of a car, this was someone’s home?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#31)
    by Patrick on Tue Jan 11, 2005 at 11:04:03 AM EST
    Both; it allows the officer to indirectly inspect the interior of the car when he would otherwise be unable to. I disagree. It does not allow any inspection of the interior of the vehicle other that what would normally be observable to the officer who makes contact with the violator. A dog smells scent particles which are OUTSIDE of the vehicle. As to your second point, it does not matter. If I'm having a loud conversation in my home and a nosey neighbor or the local police listen in, shame on me for not being more discreet. Now if what they hear rises to the level of probable cause for a search warrant, they should be able to go obtain one. The difference is the courts have ruled that probable cause alone is good enough to search a vehicle because of it's inherent mobility. The same is not true with a home and I completely support that....

    Re: Dogs: A Search vs. a Sniff (none / 0) (#32)
    by pigwiggle on Tue Jan 11, 2005 at 11:22:28 AM EST
    “If I'm having a loud conversation in my home and a nosey neighbor or the local police listen in,” What if I could come up with a device that could hear normally inaudible conversations from the exterior of the house? It isn’t unreasonable to expect future technology that will enable officers to ‘see’ any activity in a home that would otherwise be hidden. To be safe from the prying eyes of the law should I hermetically seal my house and shroud it in lead so that no radiation escapes? A reasonable limit on police is one that allows them to use only what an average person inherently has. I shouldn’t need to take extraordinary measures to protect my privacy.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#33)
    by Talkleft Visitor on Tue Jan 11, 2005 at 12:49:39 PM EST
    Patrick, In Virginia (where I practice) stopping a car for the car freshener is used often and sanctioned by the courts. Also, I wish you'd swing by and explain to my local judges that the magical words "for officer safety" all by themselves aren't enough to justify the pat-down. Heaven knows, we can't seem to get that point across to them.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#34)
    by Patrick on Tue Jan 11, 2005 at 01:00:02 PM EST
    Ken, Use people v. white. I think it's California Supreme court decision, but it's out of Humbolt County. It is right on point with respect to the air freshner. Can you cite law from other states? I see we could probably disagree on many issues, but I appreciate the dialogue.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#35)
    by Talkleft Visitor on Tue Jan 11, 2005 at 01:08:10 PM EST
    1538.5, The extension of an officer's senses argument is not good law and not what the dog exception is based upon. The thermal imaging device in Kyllo extended the officers' range of vision; in Katz the listening device extended the officers' range of hearing. In neither case was it constitutional. At its heart, the dog exception is based upon an assertion that there can be no expectation of privacy in an illegal act and faith that the dog will only react to an illegal item. Courts have accepted this despite demonstrable error rates of up to 40%. See United States v. Limares, 269 F.3d 794 (7th Cir. 2001).

    Re: Dogs: A Search vs. a Sniff (none / 0) (#36)
    by Patrick on Tue Jan 11, 2005 at 01:19:22 PM EST
    Patrick, The Virginia Court of Appeals slapped down a trial court's ruling that an air freshener stop was unconstitutional in Commonwealth v. Bryant, No. 0076-04-1 (Va.App. 06/15/2004). It's unpublished but it is the law as enforced in the trial courts (and was before the decision).

    Re: Dogs: A Search vs. a Sniff (none / 0) (#37)
    by Talkleft Visitor on Tue Jan 11, 2005 at 04:31:39 PM EST
    I'm afraid that my original question has not yet been answered as to when a detention without an arrest is authorized. If a motorist stands on his or her Fourth Amendment right to refuse an unwarranted search of person and vehicle, what authorization does the officer performing the detention-without-arrest have to do so? Especially if the drug dog is in another vehicle, and that vehicle is some distance away, and it will take time to arrive, what is the justification used to detain the motorist for refusing an unwarranted search? If they are not under arrest, why are they being held? This can't help but give the impression of penalizing someone for knowledgeably exercising their rights as citizens.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#38)
    by Patrick on Tue Jan 11, 2005 at 05:28:12 PM EST
    Absent valid consent, probable cause or a fourth waiver such as probation or parole, there is nothing the officer can do to lawfully search the motorist or the vehicle. If the officer can articulate reasonable suspicious (Which is a lower burden than probable cause) that there is other criminal activity taking place outside the initial reason for the traffic stop, the officer can detain a reasonable amount of time to satify the suspicion. If you want to know how long is reasonable, you'd have to take into account all the possible variables, and understand that there is no set time limit, the court would make a determination on a case by case basis. If your an advocate for the defense, that reasonable amount of time will be less than if your an advocate for the prosecution. If the court agrees with the officer the detention will be considered lawful, if not, evidence will more than likely be supressed and the case will probably be dismissed.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#39)
    by Talkleft Visitor on Tue Jan 11, 2005 at 06:39:13 PM EST
    Thank you, Patrick. That clarifies it somewhat for me. But the problem here is still one of how much power to detain is vested in the hands of the officer on-site...and what effects that power has on the detainee's rights. And since the individual is the foundation of society, society's rights as well. The balance must be struck, but where? Don't get me wrong; a drunk driver killed a cousin of mine many years ago. He was struck by some inebriated fool who swerved onto the shoulder and hit him as he was helping an elderly couple change a tire. As far as I am concerned, we ought to return to public whippings for impaired driving. But as I also pointed out in another comment, I have seen what a police state looks like, and no amount of "It's to save the kiddies!" justifies that kind of monstrosity. My main fear has been that for all the best of reasons, we have been inching towards a similarly ugly place, and this issue of the dogs is a mile marker along that route.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#40)
    by Talkleft Visitor on Tue Jan 11, 2005 at 07:45:27 PM EST
    Pat, if you are saying racial profiling does not exist, then I am making up the phrase "racial profiling" and hallucinating the the record in my client's case. ... Ken, the reliability of the dog's alerts does not affect whether the dog's senses constitute a "search" or whether the driver has an expectation of privacy in "waste smoke." (NOOOOOOO!) Then again, an officer's viewing an object in plain view ain't a search. And I haven't read kyllo or katz in a while, but didn't the court look at the fact that extraordinary technology was used by the cops to extend their perception took that perception out of the plain view (or hearing) exception? Honestly don't recall, but dogs have been sniffing out bandits for ages. Nemo, if you're in California, see People v. McGaughrin and progeny: they say an officer who has lawfully stopped a vehicle for a traffic violation may detain the driver for the time it would (otherwise) take to write the ticket, and have upheld detentions even though the officer never actually wrote a ticket (having found drugs in the time it would have taken to write the ticket.) I suspect we'll see more drug dogs in Chips vehicles -- how long will it take for the cop to drag Fido with him when he comes up to the window and says, "Can I see your license?"

    Re: Dogs: A Search vs. a Sniff (none / 0) (#41)
    by Talkleft Visitor on Wed Jan 12, 2005 at 05:27:06 AM EST
    Thanks, 1538.5. Unfortunately, I don't live in sunny (well, not right now) California but chilly, wintery Virginia. I still maintain that to detain anyone beyond the initial encounter without arrest is infringing upon the rights of the detained, and thus setting a dangerous precedent for all of us. If it's (stupidly and painfully) obvious that the driver has been smoking cannabis (like roaches in the ashtray, smell of smoke in the cabin, sleepy red eyes, etc.) then probable cause isn't a question. But with no overt intoxicated behavior, why should refusal to relinquish your rights be treated with suspicion? And why should that suspicion be used to detain you when no arrest has occured? This is the classic 'slippery slope' that far too many citizens never seem to understand threatens the basic underpinning of the whole idea of 'inalienable rights' as the Founders put it. Let this slide, and the next turn of the screw will be worse.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#42)
    by Talkleft Visitor on Wed Jan 12, 2005 at 06:37:57 AM EST
    Nemo, you're correct that refusal to consent cannot supply probable cause to further detain or search. This is established law. And the cop does not need cause to believe the detainee is intoxicated. Last I checked, possession is still illegal. The question here though is whether a dog sniff of the exterior of the car during a lawful traffic stop, (within the time it takes to establish contact and identify the driver, run the plates, write the ticket) constitutes a search -- an intrusion into an area where the driver has a reasonable expectation of privacy. Is use of a dog akin to use of infrared scopes and/or wiretaps/other listening device, or is it more like observing something in plain view? And does a driver have any less of an expectation of privacy in the airspace around the car than a resident has in the airspace immediately surrounding the home? If so, isn't the cop intruding on that airspace just by approaching the window, such that he is not in a lawful position to view (or smell) the contents?

    Re: Dogs: A Search vs. a Sniff (none / 0) (#43)
    by Talkleft Visitor on Wed Jan 12, 2005 at 06:41:42 AM EST
    Whoops. I mean, If not, isn't the cop. ..

    Re: Dogs: A Search vs. a Sniff (none / 0) (#44)
    by Talkleft Visitor on Wed Jan 12, 2005 at 11:28:45 AM EST
    1538.5, if no visibly intoxicated behavior is occuring, if there is no contraband visible, and there is no humanly detectable scent of illegal activity emanating from the car, then how is possession of contraband determined without a search...when the motorist has refused to allow an unwarranted one? Under what Constitutional provision may a law enforcement officer detain someone who is not, repeat, not under arrest without violating that person's rights? I still maintain that holding them until a drug dog arrives when they are not under arrest is the crux of the matter here. I contend that if the Supremes uphold such behavior, then we might as well have stayed a colonial outpost of the British Empire.

    Re: Dogs: A Search vs. a Sniff (none / 0) (#45)
    by Patrick on Wed Jan 12, 2005 at 11:34:09 AM EST
    Pat, if you are saying racial profiling does not exist, then I am making up the phrase "racial profiling" and hallucinating the the record in my client's case. I'm not saying it doesn't exist, there is too much evidence to the contrary. I'm stating that officers who practice it are limiting their chance at success. The Officer in this article said it best, criminals come in all shapes colors and sizes.