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K-9 searches and probable cause
Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 8:45 PM on 07.16.09 |
->> Hey gang,
I have a scenario to share and need the opinions of the SS.com legal community.
This is fairly simple. A man was observed by police driving a Chevy Yukon without wearing his seatbelt. The police pulled him over for that reason. While he was pulled over, apparently for the hell of it, the cops asked the driver for permission to search the vehicle. He granted permission. The cops did not indicate there was any smell of marijuana they could detect, they just asked for permission anyway.
The officer brought out the drug sniffing dog and it alerted his handler there was contraband in the car. The police recovered one marijuana cigarette and arrested him. (Small town)
I told a co-worker that the driver should have refused to grant permission to search on the basis the cops had no probably cause to search the vehicle, and the only way to do a search was to get the OK of the driver.
My co-worker says even if the driver refused to grant permission, the police still could have walked the dog around the SUV. I say that would have been an illegal search since the driver refused permission in the first place, the dog being just like the police. They would have had to have a reason to remove the dog from the back of the police car. What do you guys say? |
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Chuck Liddy, Photographer
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Durham | NC | USA | Posted: 8:58 PM on 07.16.09 |
| ->> Not a lawyer but I would have said no (because I wouldn't have had any contraband). They could have held you there until they got a warrant...then torn the car apart. But I guess with a really good lawyer you could cook the cops for ripping your car apart....however, if you DO have stuff in your car.... |
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Joseph Zimmerman, Photographer
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 9:16 PM on 07.16.09 |
| ->> How is walking a dog around the outside of the vehicle any different than a cop looking in the window? The dog hitting on the car I presume would be what was used to form the basis for the actual search - when the car was entered. |
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Kevin Novak, Photographer, Assistant
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Bel Air (Baltimore) | MD | USA | Posted: 9:17 PM on 07.16.09 |
->> Jeff,
Some more details might be needed but, generally, the following holds for vehicle searches:
1. Expectation of privacy. One has a much-diminished expectation of privacy while wilfully driving about in the public view. Much less than one would enjoy in their home.
2. Reasonableness of the detention. Was the detention longer than a reasonably objective officer would require to complete the checking of a license thu dispatch or on-board computer and the issuing of any violation notices.
3. If the K9 is nearby and the scan can be accomplished within a reasonable time, then it is constitutional--provided the dog has a proven track record, regardless of consent.
4. Concerning the willful consent--did the driver feel he was coerced or did he feel he was free to leave. Generally, police will not ask for consent until after the completion of a traffic stop and the issuing of violation notices. Doing so prior to that point is indicative of coersion.
These are just very brief pointers on the issue based on my 27+ years of experience in law enforcement. Keep in mind that entire semesters of law school are likely devoted to each item above.
Kevin |
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Scott Serio, Photo Editor, Photographer
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Colora | MD | USA | Posted: 9:28 PM on 07.16.09 |
->> OK, here you go. The facts. And, honestly, I am an expert on this.
1.) You are right, he could have refused to let them search.
2.) Once you grant consent, you can also revoke consent, but if you don't, the cops can search whatever they want.
3.) If you do refuse, the police cannot coerce you saying "if you don't let us search we will get a dog." That is coercion and any contraband found will be considered fruits of an illegal search
That being said, just because you say no doesn't mean the dog can't go around the car. Police are allowed only to detain someone they stop for as long as it takes to investigate and conclude the original "investigation" for the original traffic stop. This can include, driver's license checks, registration checks, insurance checks, warrant check and inquiries about origin, destination and nature of travel.
Police also can extend the "time clock" on this if they have other indicators that criminal activity is afoot during the car stop and they are allowed to confirm or dispel their beliefs. The police do not need probable cause for this, only "reasonable articulable suspicion" based on the totality of the situation. (US v Arvizu and a ton of others)
Now for the K-9. If you refuse the consent search and they dog happens to be there - the "search" of the exterior is fair game as long as they either do not extend the stop or are working under reasonable articulable suspicion.
Now the search is not a search. The Supreme Court considers it a "free air sniff" as the dog is not sniffing the car, but the air that is escaping from the vehicle that is stopped. That "air" is in the public domain and no longer protected under privacy rules. If the dog alerts to the free air, the police now have probable cause to search the vehicle.
I think that covers it and it is based on current case law. |
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Ian L. Sitren, Photographer
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Palm Springs | CA | USA | Posted: 9:36 PM on 07.16.09 |
->> This is a very new Supreme Court decision that may have relevance in these types of cases in the future.
http://www.msnbc.msn.com/id/30328976/ |
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Jason Myers, Photographer
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West Palm Beach | FL | | Posted: 9:50 PM on 07.16.09 |
->> I just watched the video above and while it was entertaining and informative, it is concerning that every example showed how to get out of doing something considered against the law. Drugs in the car, vandalism, drugs and underage drinking in a home etc... While I have always had a problem with authority and the rare power hungry police officer, the police in these videos accomplished exactly what they are being paid to do. If the actors in the video were doing nothing wrong, consent still could have been refused and their rights were still intact.
I find it interesting the ACLU former Executive Director seemed more concerned about the rights of the people committing illegal activities and helping them get out of trouble than reinforcing how people should follow the law by not committing these crimes and not have anything to worry about in the first place.
Just my opinion on the matter |
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Nick Morris, Photographer
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San Marcos | CA | United States | Posted: 10:06 PM on 07.16.09 |
| ->> Scott... well put. I just finished a photo project with the local police K9 units and your exactly right. While shooting one Friday night the K9 handler I was with received a call regarding a traffic stop and I had prior knowledge of this exact situation and called her on it. She stated that if she could get there before the other unit was finished it was all legal. I'm personally glad we made it because there is now one less heroin dealer in San Diego and I wound up with some great shots. |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 10:24 PM on 07.16.09 |
| ->> Okay Scott, the dog has to be retrieved from the car by the officer is where my thinking is on this. If a motorist declines to give permission, isn't getting the dog out of the car to "sniff" of the illegal fruit? |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 10:36 PM on 07.16.09 |
| ->> Jason, a defense attorney doesn't have the privilege most of the time to view a video involving their clients' activities. So who is to say who is right and who is wrong? The attorney would be doing what he is getting paid to do, and that is to defend his/her client. |
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Clay Begrin, Photographer
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Petaluma | Ca | USA | Posted: 11:18 PM on 07.16.09 |
| ->> I need not say anything other than Scott correctly described the law and consent/probable casue to search the car. |
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Mike Brice, Photographer
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Ogden | UT | USA | Posted: 11:29 PM on 07.16.09 |
->> Scott's post is spot on with Ohio law.
If the dog can walk around the car during the time it takes for the original stop, than it is legal. If the dog hits, that's probable cause for a full search.
Often, the Ohio State Highway Patrol will run radar with two units - one a regular unit, and the other a unit with a drug dog. While the first officer is conducting the traffic stop, the second officer walks the dog around.
Of course, this is often done when there is a tip that a drug shipment will be passing through. |
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David Harpe, Photographer
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Louisville | KY | USA | Posted: 11:31 PM on 07.16.09 |
->> One "trick" I read about with respect to this involves getting out of your car voluntarily and locking the keys in the car. Most of the basis for police searching a vehicle involves issues of safety (i.e. guns, etc.) or destruction of evidence (i.e. getting rid of something you aren't supposed to have). By getting out of the vehicle and locking it up, the vehicle is out of the equation...they're basically left with what you have on your person. This doesn't mean they can't still get a warrant and search your car, but it does mean any grey-area justifications for search are off the table and they have to go through the full monty to do the search.
I'm not a lawyer and this shouldn't be construed as legal advice...but I'd love to hear what others who might be involved in law enforcement or the legal profession think of that approach. |
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David Harpe, Photographer
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 11:54 PM on 07.16.09 |
| ->> David, the Indiana Bureau of Motor Vehicles' handbook clearly states motorists should remain in their vehicles and wait for the officer to come to you. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 12:07 AM on 07.17.09 |
->> David -
Getting out of the car is a bad idea, imo - it's unexpected, and the officer approaching would have no idea why you are doing so. Seems to invite an unwelcome response if you ask me - and immediately locking yourself out seems to scream suspicious.
Beyond that - you are seriously suggesting that I lock myself out of my car as a routine matter? Really? I'm not inclined to consent to unwarranted search simply on principle. But stranding myself for 2 - 3 hours and incurring a fee for getting lockout service makes no sense to me. Furthermore, if you are on an interstate - where pedestrians are prohibited, it would seem to invite the officer to stay with you for your own safety. So, if you locked it up because you thought it would prevent a search...well now the vehicle is stranded for a considerable amount of time, in which the K-9 can circle to its heart's content and establish reasonable cause. Sort of defeats the purpose of locking yourself out doesn't it? |
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Scott Serio, Photo Editor, Photographer
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Colora | MD | USA | Posted: 12:09 AM on 07.17.09 |
->> Wow...
1. If you lock your vehicle and leave it. You do in fact have a right to privacy for everything INSIDE the vehicle. The dogs are sniffing the air that escapes the vehicle into public space. If you want to get out and give the cop more time to get a drug dog there to do what they have every right to do, go ahead.
2. The declination for a search, as above, is for the interior of the vehicle, not the air that escapes into public space. You just can't extend the car stop (as outlined above).
3. Gant is an interesting ruling regarding search incident to arrest, but that doesn't touch this. Say the person above is stopped for a seatbelt violation and they happen to have a suspended license and get arrested. Gant says police can't go back into the vehicle to do a search incident to arrest. What Gant doesn't say is that while waiting for a tow truck that police can't bring a K9 to the scene to do the free air sniff. Then you have the probable cause hit and subsequent search.
What I find most interesting about all of these discussions is that we are talking about how people who are doing illegal things can find a way to conceal their illegal activities, controvert the law and get away with a crime. You never really hear about law abiding people wondering if their is a way to keep the police from finding their heroin (feelings about drug laws notwithstanding...there is debate there).
How all of this applies to photography, I fail to see... |
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Clay Begrin, Photographer
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Petaluma | Ca | USA | Posted: 1:27 AM on 07.17.09 |
->> I once again agree with Scott. David, the officer needs consent, probable cause, or a search warrant to search the car. If you lock the car, all you do is make him force entry (if he probable cause) and you would pay for the damages, not the officer or agency. Again, Scott hits it on the head...If you have done nothing wrong, what's the big deal? If you are doing something wrong, then obviously you need to educate yourself on the laws of search and seizure. If you have done nothing wrong and deny consent to search and the officer does in fact search, then go talk to a supervisor and determine if filing a complaint is appropriate. The mass majority of cops are doing the right thing, however as with any occupation, some may not be doing the right thing. Cops get very little recognition for what they do as a whole for our communities...I will agree that there are cops that are unethical, treat people wrong and do bad things, but as a whole I feel most are here to help us, not hurt us. I think no matter what occupation you look at, you will find some people who are unethical or don't do the right things.
I feel if I have done nothing wrong and I have nothing to hide, then I have nothing to keep me up at night. |
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David Harpe, Photographer
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Louisville | KY | USA | Posted: 4:20 AM on 07.17.09 |
->> I'm not saying the lock your keys in the car is the best approach, just an approach.
Scott/Clay - there are numerous examples of innocent people going to jail for various reasons...simple mistakes being one. You are much better off exercising your rights to the fullest versus trusting a complete stranger to do their job correctly. You may think you have no reason to fear a search, but you really do not know until after it's done. Something in your car that you didn't know about? Is it a rental car with who knows what inside? Something on the side of the road next to your car that the officer thinks you threw out the window?
It's not that police are out to get you, but they stop people for a reason. By the time they make a traffic stop, it's no longer a question of whether they think you're innocent. They don't stop innocent people and ask to search their car just for kicks.
So now you are face to face with a person who has the ability to deprive you of your freedom. They already think you are guilty of something, otherwise you wouldn't be in this situation in the first place. In their mind you are already a criminal, now it is just a matter of degree. Does it make sense to give them opportunity to find you guilty of even more stuff, even if you are completely innocent?
Here's a pair of videos recorded by a law school professor that covers the topic of why innocent people should never talk to the police - and by extension why you should know your rights and not be afraid to exercise them. The first is from an attorney, the second is from a police detective / law student. Each video is 20-30 minutes long, but well worth a view:
http://www.stefanhayden.com/blog/2008/07/28/innocent-people-should-never-ta... |
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Eric Canha, Photographer
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Brockton | MA | United States | Posted: 9:50 AM on 07.17.09 |
->> Scott as to item #3.....
You've made an arrest for s suspended license, tags, etc. Once the car is secured, the element of danger is quelled. Bringing in a dog doesn't further the investigation pertinent to your arrest, ie the moving violation. Thus the dog becomes part of the fishing expedition. Probable cause isn't a way around obtaining a warrant.
If an officer were to do what you suggest, in the face of the ruling, I'd suspect that the defense will have ample grounds for their motion to suppress. It's interesting in that the common reason "I smelled xxxxxxxx" goes out the window unless the officer can state that he smelled TNT or some other agent that posed an immediate danger. Maybe that means that a lot more cars are going to start getting impounded pending getting a warrant, I don't know.
How the lower courts interpret and apply the ruling is what will really matter. |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 12:37 PM on 07.17.09 |
->> My whole point here was to put this out there to get some opinions and perhaps facts that would be associated with a story like this. The cops found it within themselves to fax the information to our paper for publication. Since I was on duty last night when it came in, I chose not to publish it. Being arrested for possession of 1 joint is not newsworthy.
But I did want to spark some discussion about the use of K-9's and the also discussion about your rights to decline a request to search, which is perfectly legal and should never be considered to be an implication of guilt. |
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Gavin Werbeloff, Student/Intern, Photographer
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Atlanta | GA | USA | Posted: 6:41 PM on 07.17.09 |
| ->> Guys, I'm studying for the bar exam. I come to the SS boards to take my mind off it and this is what I get???? Gee, thanks |
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Scott Serio, Photo Editor, Photographer
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Colora | MD | USA | Posted: 7:23 PM on 07.17.09 |
->> Eric brotha, you are off the mark. As for the towed vehicle. It takes quite some time for tow trucks to arrive, and I am fairly sure you could run that dog around the "frozen" vehicle. The only thing Gant said is no search incident to arrest outside of the original investigation. We haven't even talked about vehicle inventory, which is required before tow, to make sure there are there are no valuables in the vehicle. Drugs could be discovered during that inventory as well.
There are tons of things police can do legally, supported by case law, that don't infringe on Gant. And, again, the dog is not classified as a search. Also, per SCOTUS, a hit by a K9 established probable cause for an immediate search, without warrant, under the Carroll Doctrine exception, because of the inherent mobility of vehicle. Lots of stuff.
I smelled ____. Actually great probable cause. By law it is probable cause. I have been doing this for 16 years and I can tell you by smell that something is marijuana, cocaine, heroin and PCP. Notice I didn't say "smell like" because they don't. They each smell like themselves and only after you have smelled them do you know.
And, yes, know you rights. Personally, I think everyone should know their right and exercise them. If I were even brought in for questioning by the police - I WANT A LAWYER.
Even on a car stop..."Respectfully, I do not grant permission to search my vehicle." Whether I have contraband or not. Sorry, I am a cop and I know there are bad cops out there. Not many, but just enough to worry me. Most K9 officers aren't going to mess around with a false alert. Get some dishonest cop who pulled a dime bag off someone and want to drop it in your car...not good.
Reality is reality. From a cop. Listen to the directions of cops. Understand the difference between an order and a request. Don't give cops anything. Still, case law is case. K9 sniffs are not searches. If you are stupid enough to break the law and there happens to be a good K9 around, you might end up wearing bracelets.
Dammit, I just want to take photos. I do this stuff all week long. I am done talking about K9's, I want to take some photos of horses..... |
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Ronnie Montgomery, Photographer
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Houston | TX | USA | Posted: 8:14 PM on 07.17.09 |
| ->> I've never understood the argument that if I've got nothing to hide that I shouldn't mind a search. Since I've got nothing to hide, it's just going to be a waste of time for both the officer and me and I'd just as soon be on my way. |
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Chuck Steenburgh, Photographer
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Lexington | VA | USA | Posted: 8:36 PM on 07.17.09 |
->> "Not a lawyer but I would have said no (because I wouldn't have had any contraband)."
So Chuck...are you saying if you DID have contraband, you would have said yes? |
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Will Powers, Photographer
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Denver | CO | USA | Posted: 3:07 PM on 07.20.09 |
->> David H.
I finally got the opportunity to watch the videos you recommended. All I can say is WOW. I thought the cop would give an argument to to the law professor's "Never talk to the police, but with the opening statement of the cop saying the same thing, I was in shock. I always felt that that it was true, but that was strong proof that it is never a good idea to waive your Miranda protection. Thanks!
On another note, while traveling to Indiana from Arizona in a U-Haul box truck I was stopped for speeding in Kansas. The officer asked if he could look inside the truck. I gave him permission. He then called for a dog which took about 45 minutes to arrive. He put the dog in the box and it found nothing, then the officer decided not to give me a ticket because of the inconvenience. I asked him what his probable cause was for the dog search and he said it was because I was traveling from Arizona, by myself, on a drug route to the Chicago area. Things that I had told him were used against me. |
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Scott Serio, Photo Editor, Photographer
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Colora | MD | USA | Posted: 3:29 PM on 07.20.09 |
->> Yes they were. And, you were in a U-Haul. U-Hauls are a big target for interdiction officers who want to make big multi-kilo hits.
Granted, he had no probable cause, he barely had articulable suspicion. what he did have was your consent which, until you revoke it, is better than probable cause.
At any point in that 45 minutes, or before then, you could have asked as I suggested..."Am I free to leave?"
I think he reason I keep weighing in is that, as a cop and a photographer, we are always toting around locked Pelican cases and who knows what else. Stuff that draws attention, especially in airports. You might not be carrying anything illegal, but giving that consent to let an overzealous cop go through tens of thousands of dollars of expensive equipment is not a good idea. It can also take a 5 minute stop and turn it into an hour waste of your time.
Know your rights and exercise them respectfully. |
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Mike Brice, Photographer
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Ogden | UT | USA | Posted: 3:48 PM on 07.20.09 |
| ->> 45 minutes instead of a ticket for speeding - I'll take that trade any day. |
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