Drug Dogs and Checkpoints

I’ve had several questions about the role of drug dogs at motor vehicle checkpoints. The details are below, but a quick summary of the law is as follows:

(1) Officers can’t lawfully run drug dogs around every vehicle stopped at a checkpoint

(2) Officers can lawfully run drug dogs around cars that are pulled out of line for additional investigation, so long as the use of dog doesn’t substantially lengthen the stop

A checkpoint must have a proper motor vehicle purpose. A checkpoint is constitutional only if it has a valid “primary programmatic purpose,” which needs to be related to motor vehicle enforcement, like checking licenses or for impaired drivers. General crime control or drug interdiction aren’t valid purposes. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Using a drug dog on every car would strongly suggest an improper purpose. Courts consider how a checkpoint is actually operated when determining its purpose. If officers were to deploy a drug dog on every vehicle, a court would likely conclude that the primary purpose of the checkpoint was drug enforcement, not license verification or impaired driving detection. Cf. State v. Kincer, 208 N.C. App. 279 (2010) (unpublished) (finding that a judge correctly ruled that a checkpoint had a proper motor vehicle purpose in part because an officer testified that “there were no drug dogs present”).

An out-of-state case on point is Com. v. Buchanon, 122 S.W.3d 565 (Ky. 2003), which ruled that a checkpoint was invalid:

The presence of the drug dog at a roadblock held in the mid-afternoon operated by only one officer trained to detect drunk drivers, coupled with the testimony of [an officer] that the purpose of the roadblock was “to detect any violation of the law,” indicates that the primary purpose of the roadblock was general crime control, or more specifically, the interdiction of illegal narcotics.

See also State v. Groome, 664 S.E.2d 460 (S.C. 2008) (affirming trial court’s ruling that a checkpoint lacked a valid purpose when it was purportedly established as a license checkpoint but “a K–9 team with a drug dog was assigned to the road-block” and “[t]he dog and his handler walked up and down the line of cars as they were stopped at the checkpoint”; even though the dog did not sniff the defendant’s car until it was pulled out of line, the court found the entire checkpoint and stop unconstitutional); State v. Hicks, 55 S.W.3d 515 (Tenn. 2001) (finding that a checkpoint had an improper purpose in part because “the record shows that at least one officer on the scene possessed and used a drug dog”); United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992) (ruling that officers violated the Fourth Amendment by conducting a checkpoint at which a drug dog routinely sniffed vehicles during license checks, where the chief of police acknowledged “that the real reason for the roadblock was to interdict drug traffic”).

Using a drug dog on cars that are pulled out of line for additional investigation is OK. If there is reasonable suspicion that a motorist is impaired, unlicensed, or engaged in a crime, that motorist may be pulled out of line for additional investigation. Deploying  a drug dog at that point likely would not call into question whether the primary purpose of the checkpoint is proper, and the dog sniff itself is not a Fourth Amendment concern under Illinois v. Caballes, 543 U.S. 405 (2005).

The court of appeals has commented favorably on such a procedure, in State v. Branch, 177 N.C. App. 104 (2006):

[T]he officers’ detention of defendant [at a checkpoint] to verify whether her driving privileges were valid was reasonable under the circumstances. . . . And once the lawfulness of a person’s detention is established, Caballes instructs us that officers need no additional assessment under the Fourth Amendment before walking a drug-sniffing dog around the exterior of that individual’s vehicle. . . . Thus, based on Caballes, once [a driver] was detained to verify her driving privileges, [officers] needed no heightened suspicion of criminal activity before walking [a drug dog] around her car.

A dog was also used on vehicles that had been pulled out of line in State v. Nolan, 211 N.C. App. 109 (2011) (finding that a checkpoint had a proper purpose despite the presence of a drug dog; the dog was used on the defendant’s vehicle only after the defendant was detained for sobriety tests). Cf. McCray v. State, 601 S.E.2d 452 (Ga. Ct. App. 2004) (ruling that a checkpoint had a valid motor vehicle purpose despite the presence of five dogs, but also noting that the dogs sniffed only a handful of cars and that the defendant’s car was sniffed during a somewhat prolonged stop necessitated by his presentation of a tattered license).

The mere presence of a drug dog is not a problem. If a dog may be deployed on a car that is pulled out of line, it follows that the mere presence of a dog on the scene does not itself render the checkpoint unlawful. See, e.g., Lujan v. State, 331 S.W.3d 768 (Tx. Ct. Crim. App. 2011) (ruling that a checkpoint had a valid primary purpose despite the presence of a dog and stating that “the K–9 officer and his dog were part of the interdiction unit . . . [that was] assigned to work . . . the checkpoint for license and insurance checks,” so “the K–9 officer was also there for that reason and not to do general criminal enforcement”; in other words, “[t]he fact that the K–9 officer had his dog with him does not render the checkpoint illegal”).

Duration and delay. Even when a driver is pulled out of line, a drug dog can’t be used if it would lengthen the stop by more than a few minutes, see generally, e.g., State v. Brimmer, 187 N.C. App. 451 (2007), or perhaps lengthen it at all if the dog isn’t already on the scene, see State v. Cottrell, __ N.C. App. __, 760 S.E.2d 274 (2014). The exception to that rule is that if the reason that the driver is pulled out of line is based on reasonable suspicion of a drug offense, then a reasonable delay to obtain and deploy a drug dog would be permitted.