A Sniff in Time

Jacob Sullum | November 19, 2004

The Missouri Supreme Court has unanimously ruled that detaining a motorist who is stopped for a traffic violation so his car can be checked by a drug-sniffing dog violates the Fourth Amendment. The case is similar to one in which the U.S. Supreme Court heard oral arguments last week, involving an Illinois motorist who was convicted of drug trafficking after a dog detected marijuana in his car.

In the context of public places such as airports and bus stations, the Supreme Court has held that the use of drug dogs does not constitute a "search" within the meaning of the Fourth Amendment. But detaining someone for the purpose of a canine exam may be a different story. In the Missouri case, the driver, Jose Granado, was held longer than necessary for the traffic violation, while the cop who pulled him over waited for the dog to arrive. "At the time the patrolman began the search," the Missouri Supreme Court ruled, "the purpose of the traffic stop already was complete, and a search could not be conducted without new and articulable suspicion that Granado had committed a crime." In the Illinois case, by contrast, the dog arrived while the cop was in the middle of writing a warning ticket.

In short, our Fourth Amendment rights may hinge on a dog's punctuality.

Comments

|11.19.04 @ 10:47AM|#

Is a sniff a search? The SC ruled against the use of thermal imaging devices without a warrant. One would think that this case is almost identical. I'm surprised the SC even wanted to hear it.

|11.19.04 @ 11:04AM|#

Now you know why I opposed Ronnie White for the federal bench. Look at how he's corrupted the MO supreme court! The federal judiciary is no place for a state supreme court chief justice that chooses the terrorists and the drug dealers over the security of our nation!

|11.19.04 @ 11:05AM|#

I think the thermal imaging case dealt with a search of the home. These cases involve traffic stops, which makes all the difference under 4th Amendment jurisprudence. I wouldn't be surprised if Jacob's take on it proves to be correct.

|11.19.04 @ 11:10AM|#

It is unbelievable how many people don't even know they can refuse an officer's request to search, and if they do so, the officer is required to get a warrant. At which point the cops will usually try to intimidate, lie, and stomp their feet, and when that fails, they'll go home.

|11.19.04 @ 11:33AM|#

If you ever take an evidence course you'll quickly realize that evidence seized in violation of the Fourth Amendment - even when it is "excluded" at trial - gets into a trial in a number of ways - especially if the defedant dares to testify. They use the illegally seized evidence to impeach him, and then the judge gives a limiting instruction which informs the jury that they may only use the extrensic evidence to judge the credibility of the witness (in this case the defendant) and not to judge the merits of the case in chief. Yeah right.

|11.19.04 @ 11:36AM|#

Trainwreck,
I think it goes something like this when the cop speaks, "Just tell us what you're hiding and everything will be cool. Bad things only happen to those that lie. The harder you make it on us, the harder it will be on you. Now tell us and everything will be alright."

|11.19.04 @ 11:45AM|#

Technically, I think the legal point is that the arrest can last only as long as required by the circumstance that led to the arrest. When the police stop someone for a bad tail light, they can only detain the person so long as it takes to write the fixit ticket. To justify longer detention, they must show probable cause for a search existed when the car was first stopped.

|11.19.04 @ 11:49AM|#

"You must remember this, a sniff is just a sniff, a smile is just a smile..."

|11.19.04 @ 12:14PM|#

IMO, tainted evidence should never be excluded. Yes, I can hear your wailing and screams. :-)

If you want cops to stop doing that stuff you have to make it personal. As it stands, when the cop pulls that kind of crap little to nothing comes of it. If, OTOH, a cop was facing criminal or civil charges, dismissal, big fines, or demotion he/she might think twice.

There really are two separate issues. One, the law should be concerned with getting at the truth of a criminal case. The suppression of tainted evidence sometimes precludes that. Two, if a cop searches your car illegally he should be punished for doing so (irrespective of your guilt or innocence). That puts the responsibility squarely where it belongs and the cop decides if it's worth illegally tossing some crackhead's car when faced with a year in the slam and/or getting fired outright.

But the worse thing about this is the glaring red light exposing how cavalier we have become about the issue of car searches. There was a time when a cop pretty much had to have a warrant to search an automobile. We've forgotten that and our bar is much lower than it ought to be.

|11.19.04 @ 12:40PM|#

Haven't these guys ever heard of Tupperware? Completely airtight.

|11.19.04 @ 12:40PM|#

TWC,
I agree with you completely. Furthermore, I think that if a murderer is let back loose on the streets because of a technicality, when it was evident that he is guilty, the judge bears some of the responsibility for any future murders (though not in the eyes of the law).

Also, if a person is pulled over for a traffic ticket, the cop has no reason or need for a drug sniffing dog. I think regardless of the puntuality of the dog, or even if the dog guy pulls you over, he should need a seperate cause to have his dog search the vehicle.

|11.19.04 @ 1:01PM|#

Yeah, if the dog is considered a police officer (which it is when, say, the dog is shot and killed in the line of duty), then a warrant should be required for the dog to search. That should include searching with their extra-human sense of smell.

|11.19.04 @ 1:17PM|#

"Haven't these guys ever heard of Tupperware? Completely airtight."

Unfortunately, not true. And those dogs have unbelieveably talented noses. Hide something in Tupperware and they might take it as an insult to their professional pride, and bite your ass out of spite.

|11.19.04 @ 3:45PM|#

TWC,

You do realize that most cops would never, ever be convicted under your scheme, right? Prosectors would be loathe to take such cases, juries would be unlikely to convict the cop, and of course cops would merely be resourceful in hiding the fact that the evidence was taken in violation of the Fourth Amendment. Talk about going from the frying pan and into the fire.

Mike H.|11.19.04 @ 4:14PM|#

You do realize that most cops would never, ever be convicted under your scheme, right? Prosectors would be loathe to take such cases, juries would be unlikely to convict the cop, and of course cops would merely be resourceful in hiding the fact that the evidence was taken in violation of the Fourth Amendment. Talk about going from the frying pan and into the fire.

Which is kinda the point of the 4th in the first place.

Wow, JB, I'm stunned. I actually...agree...with... you. :)

|11.19.04 @ 4:19PM|#

JB, points well taken, especially in today's useless system of justice. I remain convinced that somehow the offending law enforcement officer must be held directly responsible for illegal behavior. In some cases they are fired but all too often you have cases like the Tyesha Miller shooting in Riverside where the offending cop goes out on disability and ends up as a sheriff in Fresno while still drawing disability from Riverside.

|11.19.04 @ 4:54PM|#

TWC-

Here in CA there's also the phenomenon of senior CHP officers retiring because of alleged work-related ailments and then getting another job despite the alleged disability. They always get some sort of settlement for extra money above and beyond the generous pension provided to state employees. The best was the guy who quit CHP because of a heart condition brought on by the stress of working in law enforcement, and then got a job as head of security at the airport in San Francisco (not exactly a low-stress job in the era of the War on Terror).

|11.19.04 @ 5:52PM|#

Mike H.,

You probably agree with me more than you realize. I just have a very abrasive personality. :)

Watch the show Cops sometime. Note how long they question people before they Mirandize them. Those pre-Mirandize statements, or mere silence for that matter, get into court in any number of ways, even though most citizens would assume that they don't. Its only when you've been Mirandized that it is assumed unfair to count your silence, etc., against you; before that, your fucked. Thus cops milk that pre-Mirandize period for all they can.

For a real eye-opener, consider that there is case law, approved by the U.S. Supreme Court, where a defendant, after he was Mirandized and despite the fact that he asked for counsel, was interrogated and those statements got in to impeach his statements in court anyway. The courts have argued that they don't want to aid in perjury, and that's why they let such statements in to impeach, but there is no fucking a way a jury can keep such information out of their head when they are judging the case in chief.

IMHO, Miranda's scope of use is so minimal right now, and its effect so easily deflected in any number of ways, that its nearly dead letter.

|11.19.04 @ 5:54PM|#

thoreau,

What? A cop trying to cheat the retirement system? No way. :)

|11.19.04 @ 8:42PM|#

Thorow, that's why we love Californicate.

|11.19.04 @ 10:04PM|#

Here's the problem with Sniffy the Wonderdog. How do I cross-examine the dog? Perhaps he was trained to sit when he observes drugs. Or perhaps he was merely trained to sit, and the officer says, "aha, that means he smells drugs!" It doesn't matter whether or not you have drugs, or whether you have Tupperware�, it only matters that the dog's testimony cannot be cross-examined nor impeached.

|11.20.04 @ 12:54AM|#

Besides the fact that any human with the IQ of the smartest dog would be incredibly unfit to be a police officer. And yet some of the people they let be cops are almost that dumb...

|11.20.04 @ 7:35PM|#

Here's the best part: one of Rush Limbaugh's brothers (Steve, to be exact) is one of the Missouri Supremes.

|11.22.04 @ 9:40AM|#

"Here's the problem with Sniffy the Wonderdog. How do I cross-examine the dog? Perhaps he was trained to sit when he observes drugs. Or perhaps he was merely trained to sit, and the officer says, "aha, that means he smells drugs!""

Dude, I was just about to make the same brilliant statement before you beat me to it. How the fuck do we know that the dog actually smells something, or is just following unspoken cues from his/her master? As you said, you can't put the dog up on the fucking witness stand ("Okay, boy.. one bark for "yes", two barks for "no", and successive barks for numbers")

I'm definitely a "dog person", and find their use to persecute peaceful citizens to be abhorrant. They are being exploited.

|11.22.04 @ 5:45PM|#

...one of Rush Limbaugh's brothers (Steve, to be exact) is one of the Missouri Supremes. - huck

It is well-known that Clan Limbaugh is a notorious nest of lawyers. Rush, by dropping out of the local state college, taking the DJ career path, and never getting within the metaphorical mile of law school was the family black sheep, up until the time that he achieved syndication success. I'd be surprised if there aren't still some relatives who would prefer that he had taken the route his brothers did.

Kevin