NMA E-Newsletter#328: SCOTUS Ruling May Limit Use of Drug Dogs

The U.S. Supreme Court’s record on motorists’ rights has been a mixed bag lately, so we’re pleased with the court’s latest pro-motorist decision in Rodriguez v. U.S.

In Rodriguez, handed down last week, the court ruled that police may not prolong a routine traffic stop to search for evidence of crimes unrelated to the purpose of the original stop. The case stems from an incident in which a Nebraska police officer pulled over a motorist for driving on the highway shoulder. After writing the driver a warning ticket, the officer asked to run his drug dog around the exterior of the vehicle. The driver refused, but the officer proceeded with the sniff after calling a second officer to the scene for backup. The sniff turned up methamphetamine, and the driver was subsequently sentenced to five years in prison.

At issue was the extra seven or eight minutes it took for the second officer to arrive as well as for the actual dog sniff. Writing for the majority, Justice Ruth Bader Ginsburg said, “Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.”

Ginsburg pointed out that an officer’s mission during a traffic stop, beyond determining whether or not to issue a ticket, includes routine checks for outstanding warrants, proof of registration and insurance. She said police authority over the stop ends when the mission has been—or reasonably should have been—completed.

“These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly,” she wrote. “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”

It’s important to note that the Rodriguez ruling will not curb all dog sniffs. The court has previously ruled that dog sniffs are constitutional, even without reasonable suspicion, as long as they don’t unduly lengthen the duration of the stop. This is welcome news for police agencies around the country that rely on drug dogs to justify questionable vehicle searches that ultimately lead to civil forfeitures.

Here’s how the scheme works. A police officer pulls over a driver for a routine traffic stop, becomes “suspicious” of possible illegal activity (usually drug-related) and asks if he can search the vehicle. If the motorist refuses, the officer calls for a trained drug dog to sniff around the exterior of the vehicle.

Invariably, the dog alerts to something, which gives the officer probable cause to search the vehicle. The problem, though, is that drug dogs are not very reliable and can be trained to alert to their master’s cue, even if no drugs are present. No matter, the search and seizure ensue, subjecting many innocent drivers to the abuses of civil forfeiture.

And civil forfeiture is big business. The U.S. Justice Department took in a record $4.2 billion in civil forfeitures in 2012—much of it thanks to the hard work of local and state police agencies around the country. With so much at stake, law enforcement will not easily give up such an effective, valuable tool (the dog sniff). Police officers are nothing if not resourceful and will likely find workarounds to Rodriguez like calling for the dog earlier in the stop just to keep the duration down to a “reasonable” level.

If a police officer pulls you over for a routine traffic stop and asks to search your vehicle, politely refuse. If he wants to run a dog around your car, politely object. He’ll likely do it anyway. Track the duration of the various steps of the stop and the total elapsed time of the stop. If you have to wait for the dog, note how much time that takes; ask if you are being detained and if you are free to leave. Keep asking.

The police cannot detain you indefinitely. If the delay extends beyond the time it would normally take for the officer to perform his routine duties, the use of the dog becomes constitutionally suspect. The key is to assert your rights throughout the stop. It may not prevent a search of your vehicle, but it may protect you down the road and lead to a better outcome in the courtroom.

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