Open Air Dog Searches: A Sniff Too Far in a Criminal Case
We’ve all seen it on the TV show Cops or in a movie before…a car is stopped by the police for speeding or swerving, panicking people inside the car start sweating profusely as they watch the mirrors, and a K-9 officer slowly walks a dog around the vehicle searching for drugs or weapons. All of the people in the vehicle watch nervously, hoping that the dog won’t “hit” on any of the drugs or weapons they are hiding in and around the car. Inevitably, the dog always smells something, and everyone gets arrested while decrying the constitutionality of the dog sniff search.
Have you ever stopped to wonder if that really happens in real life and/or if those types of searches are legal? The answer to both questions is yes it does, and yes it’s legal in limited circumstances. Given more and more people call our office having been arrested after an open air dog sniff search, so the Indianapolis Criminal Defense Attorneys at Banks & Brower felt it necessary to address the topic in a blog.
Traffic Stop Reasoning: Before evaluating the constitutionality of any dog search or sniff, any good attorney will first look to see if the reason for the original traffic stop was valid. The legal standard for being able to stop a motorist is referred to as “reasonable suspicion.” In so defining reasonable suspicion, the courts have long held that so long as an officer has a good faith/reasonable belief that a motorist has committed a traffic infraction, then the stop will almost always be upheld. (Even if it is later determined that the officer was mistaken that a traffic infraction had actually taken place.) (see Kolyann Williams v. State). However, if the stop can be determined to be invalid for some legal reason, anything that is found in or around the vehicle thereafter will be suppressed and can’t come in as evidence against a defendant. That’s why it’s always important to address the validity of the stop first, prior to looking into the open air sniff as well.
Dog Sniff Case Law: Historically, in order for there to be a claim that an open air dog search is not valid as to violate someone’s constitutional rights, a defendant must prove one of two things: (1) there was no reasonable suspicion that criminal activity was afoot to prolong the original reason for the stop, and (2) that once the reason for the traffic stop has been completed they were detained for an unreasonable amount of time to effectuate the open air dog sniff/search.
- Did the Officer Have Reasonable Suspicion to Believe Criminal Activity Was Afoot?: Once the original stop is over and the officer has no further reason to detain the individual (i.e. the ticket was written and issued, a warrant check came back clean, etc.), the only way that a stop can continue is if the officer has reasonable suspicion that criminal activity is afoot. In layman’s terms, the officer has to have reason to believe that something else criminal is occurring and they need to evaluate the situation more. It’s important to note that mere, generalized suspicion is not enough. Rather, the suspicion must be demonstrable and articulable as to something specific, something unambiguously criminal. Bush v. State, 925 N.E.2d 787 (Ind. Ct. App.).
- Was the Detention Length Reasonable?: The Indiana Supreme Court has held that a warrantless canine sniff of a vehicle conducted during the original traffic stop does not violate the search and seizure provisions of the federal Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. Myers v. State, 839 N.E.2d 1146, 1154 (Ind. 2005.). Therefore, so long as the sniff is done during the original stop, before the officer has completed the necessary steps to conclude that stop, then the sniff will be held constitutional. However, the Court in Meyers ruled, “a traffic stop that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”
As anyone can see, these cases often come down to specifics. That’s because every single traffic stop and dog search is different factually. Yet, that leads to many questions. Like, what does a reasonable length of time mean? 10 min? 1 hour? It depends according to case law. What about reasonable suspicion that criminal activity is afoot? Is someone being nervous enough? No. Is someone reaching around in their car feverishly enough? It can be. What about a suspect’s story not adding up when answering questions to the police during the stop? Perhaps. It would be impossible for this blog to cover every specific example of what is and is not allowable under the law. However, any good defense attorney can talk you through your specific situation and can give you an idea of what to expect.
Should you or a loved one face a criminal charge stemming from an open air dog search, give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC, a call today at 317.870.0019. Or, email us at info@banksbrower.com. We are available 24/7/365.