Tulsa Attorney BlogPolice Cannot Delay Drivers While Waiting for Drug Dogs

Drivers Cannot Be Detained Without Suspicion

drug dogs in traffic stopsBreaking stride from a streak of opinions that carved away Fourth Amendment search and seizure protections, a new U.S. Supreme Court decision says traffic stops are over when they are over.

When a routine traffic stop is completed and police have no other reasonable suspicions, police cannot legally require a driver to wait for drug dogs to arrive. In the courts April 21, 2015 Rodgriquez v. United States decision, a 6-3 majority excluded evidence seized in such a scenario.

One might think the matter had been settled 10 years ago. Apparently not. In Illinois v Caballes, 543 U.S. 405 (2005), the court held that police could deploy drug sniffing dogs in traffic stops as long as the traffic stop was not “prolonged beyond the time reasonably required to complete the mission.”

Courts had nonetheless split hairs over how long a driver could be detained after a traffic stop to allow police to ramp up further investigation. In Rodriguez, the Eight Circuit had opined that a delay of seven or eight minutes was an “acceptable de miminis intrusion” on a driver’s personal liberty.

The Caballes court had already stretched its imagination to conclude there would be any reason to deploy drug dogs during a traffic stop. The Caballles court’s vivid imagination relied on previous cases.

In U.S. v Place 462 U.S. 696 (1983) and City of Indianapolis v. Edmond, 531 U.S. 32 (2000) the court decided a drug dog sniff in a public place is not a search when the trained dog’s smell test is conducted at a time and place where a person otherwise has no reasonable expectation of privacy.

In the new Rodgriquez decision, the court put a leash on drug dogs – or a least on the armed police officers who use them as witnesses. The Rodriguez decision said an eight minute delay to wait for a drug dog to arrive after a police officer finished a traffic stop comprised an unlawful seizure. If they want to use any evidence they find in a subsequent search, police cannot force a driver to wait until the drug dogs arrive.

For defense attorneys, for drivers accused of drug crimes and for anybody stopped for a traffic violation, it counts as a big win. And one might think this latest decision would finally settle the matter, once and for all. Now, police need at least a pretext of a reason to hold a driver long enough for drug dogs to sniff out justification for search. Or do they?

Unfortunately, we cannot expect one big win to stop police from using any trick in the book to lure drivers into consenting to a search. Police will most likely continue using cop tricks cajole drivers into waiting long enough for police to bring in the dogs.

As things now stand, we have a few indicators from the court when dogs can or cannot be deployed. In Florida v. Jardines 569 U.S. ___ (2013) the court said police need a warrant to bring a drug dog onto someone’s front porch. And now we know police cannot use evidence obtained after requiring a driver to wait for drug dogs – if they have no other reasonable suspicion upon which to base an investigation.

Other recent cases provide police latitude to develop reasonable suspicion around the thinnest of pretexts. In Navarette vs. California 572 U.S. ___ (2014), the Supreme Court said an anonymous tip can provide sufficient reasonable suspicion to initiate an investigation.

In Florida v. Harris, 568 U.S. ___ (2013), the court asserted a dog’s training and testing record can establish reliability. The Harris court concluded a defendant can challenge a dog’s training and testing records, but field records of the dogs performance are not required to establish a dog’s reliability. The court presumed the alert of a trained, tested dog could provide probable cause for a search.

And police will like continue to bend and blur the line. What about the cop who just spends a little too long looking for cracks in a tail light, or cannot seem to get a quick response from dispatchers after calling in for a license check? Or what about evidence seized after one of those dogs lurking around the entrance of a music festival sat, barked, whimpered or raised a paw?

As some cops have been known to say, you can tell your story to a judge and they can tell their story. It can become a case of who has the best story.

That is when you need a good defense lawyer. A defense attorney can discover evidence, examine details and present arguments about what is reasonable.

In its decision, the Rodriguez court noted that a lower court had declined to consider whether the officer had reasonable suspicion to detain the driver after concluding the traffic stop.

Anything you say during a traffic stop might be construed as the basis for reasonable suspicion for further investigation. The Supreme Court in U. S. v Sharpe 470 U.S. 675 (1985) concluded a 20 minute delay to investigate an officer’s suspicions during a traffic stop was okay as long as it was no longer than necessary to investigate the suspicion.

People can be convicted because they did not exercise their rights just as well as they can be convicted when courts narrowly define constitutional rights. As a Tulsa defense attorney, I understand why it is important both to exercise your rights during investigations and to defend those rights in court.

You do not have to give police your consent to a search. You do not have to explain away anything police claim is suspicious. If you have been arrested, a good defense lawyer should represent to a court what your rights are. If you fail to raise those arguments, you may be surrendering rights guaranteed by law.

Free Consultation: Tulsa Criminal Attorney

If you have been charged with a crime, contact a Tulsa criminal defense lawyer to find out if your rights to be secure against unreasonable search and seizure was violated. For a free consultation with a Tulsa criminal attorney, call Wirth Law Office at (918) 879-1681 or send your inquiry using the form at the top of this page.

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