Sniffing Around: Traffic Stops May Not Be Extended for Narcotics Dogs

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

It’s just after midnight on a Tuesday morning in March of 2013. A Nebraska police officer spots a vehicle driving along the shoulder of a highway in violation of traffic law. He pulls the vehicle over, checks the driver’s licenses of the operator and passenger, and issues a warning for the driving infraction. So far this is a typical Terry Stop that most readers of this blog have experienced. Then the police officer asked the driver if he can sign a consent form to search the car. When the driver refused the driver was detained until a dog showed up. The officer admitted that there was no other probable cause to continue the Terry stop or conduct any further investigation.

The dog was then walked around the vehicle until methamphetamine was found. This process took seven to eight minutes longer than the stop would have taken had the officer left after issuing the warning. The question of this case is whether Terry stops can be extended to include dog sniffs? The public policy considerations are enormous.

A Magistrate Judge denied a motion to suppress evidence even though he believed that reasonable suspicion ends when the stop is concluded. However because the extension of the stop was only seven or eight minutes the judge held that it was merely a minimal intrusion of Mr. Rodriguez’s Fourth Amendment rights. The District Court denied the motion and the Eight Circuit affirmed. Mr. Rodriguez was sentenced to five years in prison.

Justice Ginsburg delivered the opinion of the Supreme Court of the United States (SCOTUS) by referencing a 2005 case, Illinois v. Caballes which held that a dog sniff conducted during a lawful Terry stop does not constitute an unreasonable seizure. However, the issue here is whether, without any probable cause can an motor vehicle stop be extended for a dig sniff after the initial basis of the Terry Stop is concluded. The Terry Stop is concluded when the reasons for the stop are resolved.

In Rodriguez the officer testified that “I got all the reasons for the stop out of the way,” before he decided to conduct the dog sniff. The government justified this by arguing that an officer may “incrementally” prolong a stop in order to make a dog sniff feasible as long as they are also pursuing the original purpose of the stop. SCOTUS did not entirely agree with this point. If an officer can expeditiously complete a Terry Stop then the time that takes is the “reasonable” amount of time for that stop. SCOTUS held that the key question was whether the dog sniff prolonged the underlying Terry Stop? If it does then it is not permitted.

New Jersey Law and Terry Stops

The facts of this case happen thousands of times every day by the police and every municipality. Once they pull somebody over and they issue the motor vehicle summons they attempt to extend the motor vehicle stop. The police are allowed to walk around the car and smell around the car with their own noses in order to observe additional criminal activity. Many times the officers well allegedly see a bag of weed, weed on the floor, the butt of a knife, or any other alleged criminal activity. The officers then testify that they had heightened concern for their safety or observed criminal activity which require that the occupants of the vehicle be asked out of the car. In New Jersey once individuals are ask out of the car the police are allowed to pat down them for their safety. However if they put them in the back of the cruiser the police must then obtain a warrant to search the vehicle or impound same and obtain a warrant. This is pursuant to the New Jersey Supreme Court case State v. Pena-Flores.

Federal law is different in this regard. Now, in New Jersey and across the country, the police are not allowed to extend a simple motor vehicle stop without the appropriate probable cause in order to create a fishing expedition by way of threats and coercion any asking for “consent” while on the side of the highway.

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