How, then, can it be possible for you to be pulled over for a minor traffic infraction, such as a broken taillight, and suddenly discover that a trained canine is circling your vehicle and sniffing for drugs without your consent? Unfortunately, many police departments in Tennessee, and throughout the United States, routinely use drug dogs in this questionable matter by employing some subversive tactics and with a little help from a few Supreme Court decisions.
In Rodriguez v. United States (2015), the Supreme Court ruled that that police cannot hold you in a traffic stop any longer than is necessary to perform the routine tasks of checking your registration, writing a citation, or issuing a warning. In other words, unless you agree or there is probable cause of criminal activity, the police cannot make you wait for a canine unit to arrive. The Court held that if an officer unnecessarily prolongs the stop, your Fourth Amendment protection against unreasonable seizure has been violated. However, as previously stated, many police departments have instituted subversive procedures to get around the Court’s decision. For example, a certain geographical location may be targeted for supposed drug activity. Officers may be instructed to pull over vehicles for any minor infraction that might have been otherwise ignored. The twist to this scenario is that a canine drug unit is stationed and waiting very close by. Thus, the drug dog could arrive on the scene quickly. Since the original officer did not need to prolong the stop to wait for the drug dog, the Court’s decision tells us that this is not on unreasonable seizure and thus does not violate the Fourth Amendment.
Alright, you might say, the police have figured out how to use drug sniffing dogs without being guilty of “unreasonable seizure,” but the Fourth Amendment also protects me against “unreasonable search” and surely a drug dog sniffing around my car simply because I forgot to use my turn signal is obviously an “unreasonable search,” right? Common sense dictates that you would be correct. The Supreme Court, however, has ruled otherwise.
In the 2005 case of Illinois v. Caballes, the Court held that a drug dog sniff during a routine traffic stop is not a search under the Fourth Amendment. Thus, your Constitutional protection against “unreasonable searches” does not apply. The logic is difficult to follow but to simplify the Court’s opinion, official conduct that does not violate your “reasonable expectation of privacy” is not a search under the Fourth Amendment. The possession of contraband, the Court wrote, is not a situation in which you can reasonably expect privacy. The Court relied upon a 1983 decision, United States v. Place, which reasoned that a dog sniff would not require you to open your luggage (or in this case, your vehicle) and thus would not expose non-contraband items. Thus, if you do not have contraband, your expectation of privacy was not violated, and if you do have contraband you had no reasonable expectation of privacy in the first place.
So where does that leave us? It leaves us with very little protection during the actual traffic stop. If wish to refuse a search or you don’t want to consent to have your car sniffed by a drug dog, say so clearly, and then ask for permission to leave. If your traffic violation has already been fully addressed, then it is likely you are being unlawfully detained. Please take note of the time you were pulled over, the duration of the stop, and the precise sequence and timing of events. This is not the time to challenge the authority of the law enforcement officer. If the officer refuses to allow you to leave and a drug dog gives a positive indication, it will be your defense attorney’s job to challenge the lawfulness of your arrest or to suppress any evidence seized as a result of such violations. Here is a link to some of the possession/ drug cases that I have handled in Montgomery County General Sessions Court, some of which are cases in which the officer did not respect the Defendant’s Fourth Amendment rights, and as a result I was able to have their cases dismissed.
What are your thoughts on this topic? Specifically, do you agree or disagree with the Supreme Court decisions above or the police tactics discussed? Do you think a drug dog sniffing your car without probable cause or your consent should constitute a “search” under the Fourth Amendment?