In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the United States Supreme Court significantly limited the scope of a traffic stop. It is almost exactly two years since the ruling, and appellate court opinions throughout the country are still proliferating. And so have our faculty’s blog posts: Jeff Welty has written relevant posts here, here, here, here, and here, Alyson Grine here and here, Shea Denning here, Phil Dixon here, and my posts are here, here, and here. This post summarizes Rodriguez and three North Carolina Court of Appeals rulings that are currently before the North Carolina Supreme Court. Continue reading
Tag Archives: dog sniff
Status of North Carolina Court of Appeals Cases Before the North Carolina Supreme Court on the Scope of a Traffic Stop under Rodriguez v. United States
Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005). Continue reading →
Yesterday, the Supreme Court decided Florida v. Harris, holding that when a trained and certified drug dog alerts on a vehicle, that normally provides probable cause to search the car, even if there are no records proving that the dog has previously performed well at detecting drugs in the field. I mentioned Harris in my Supreme Court preview, here, and in a long prior post about the reliability of drug-sniffing dogs, here, so I have been awaiting the opinion.
Facts. The case arose when a Florida K-9 officer executed a routine traffic stop on the defendant’s truck. The defendant appeared nervous and there was an open beer can in the vehicle, so the officer asked for consent to search. The defendant refused. The officer walked his drug dog around the vehicle and the dog alerted. The officer searched based on the alert; he found no drugs but did find 200 pseudoephedrine pills, 8,000 matches, and other ingredients for manufacturing methamphetamine. The defendant was arrested and charged based on possession of those ingredients. Later, while the defendant was out on bail, the officer stopped him again for a traffic violation, the dog alerted again, and the officer searched again, but found nothing of interest in the vehicle.
Motion to suppress. In court, the defendant moved to suppress the pseudoephedrine and other items found in the initial search. The state showed that the dog had completed a 120-hour police-run training course; that the dog had previously been certified by a private dog training and testing outfit, though this certification was not required by law; and that the officer and the dog undertook various refresher training from time to time, during which the dog performed well.
The defendant argued that while the dog may have been trained in drug detection, his certification had expired and his performance in the field was poor, as reflected in his two alerts on the defendant’s narcotics-free vehicle. Thus, the defendant maintained, the dog’s alerts did not provide probable cause to search. The officer admitted that he did not keep complete records of the dog’s field performance, but argued that the dog likely alerted to the defendant’s vehicle based on a residual odor of methamphetamine.
Lower court rulings. The trial court denied the motion and, after the defendant pled no contest and appealed, an intermediate appellate court affirmed. The Florida Supreme Court reversed, ruling that records reflecting how often the dog “alerted in the field without illegal contraband having been found” were necessary to determine whether the dog’s alert provided probable cause.
Supreme Court ruling. The United States Supreme Court granted certiorari and again reversed. The Court unanimously held that:
- Probable cause must be assessed using common sense and under the totality of the circumstances
- Requiring a checklist of particular evidence, such as a dog’s field performance records, is the inconsistent with a totality-of-the-circumstances approach
- Field performance data is imperfect because it may understate a dog’s false negatives (as the dog’s failure to alert usually will result no search being conducted and so no drugs will be found even if they are present) and may overstate a dog’s false positives (because, for example, a search based on an alert may fail to reveal drugs that are present but well hidden)
- Controlled testing of dogs is a “better measure” of their reliability, so if the state can show that a dog performs well at detecting drugs in a controlled setting, and a defendant fails to contest that showing, that is enough to show that the dog’s alert provides probable cause
- The defendant may contest such a showing by contesting the training and testing standards, by presenting fact or expert witnesses, or by contesting the particular alert (for example, by showing that the officer cued the dog to alert)
- In this case, the state’s evidence about the dog’s training and proficiency in finding drugs amply supported a finding of probable cause, and the defendant’s response was focused on only two alerts, which may have been explained by residual odors and were, in any event, hindsight
Further litigation? I suspect that the Court’s opinion will spark litigation about drug dogs, because it provides a framework for presenting and analyzing challenges to dog alerts. And the Court’s opinion leaves plenty of questions unanswered. For one thing, it refers to training or certification conducted by a “bona fide” organization without explaining how to know whether an organization is “bona fide.” How extensive must the organization’s testing be? How realistic? How much experience must the organization have? My understanding is that the field of drug dog training and testing isn’t regulated or standardized, so there may be great variability between programs.
Further reading. Perhaps along similar lines, professor Orin Kerr’s reaction to the opinion is that “the Court . . . said there is no particular test [for probable cause] and then created a particular test: Certification from a ‘bona fide’ organization . . . or ‘recent and successful’ completion of a training program creates a presumption of probable cause.” SCOTUSBlog’s summary of the case is here. The Washington Post covers it here.
The Court has not yet ruled on the other drug dog case it heard this Term, Florida v. Jardines, involving the use of a drug dog to sniff the front door of a residence. Stay tuned.
Last August, the court of appeals in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120, temp. stay granted, __ N.C. __, 731 S.E.2d 179 (mem.) (2012), decided an issue of first-impression related to a drug dog alert and the reasonableness of an ensuing Fourth Amendment search. Since we haven’t yet blogged about Smith, which is doubtless of interest to folks interested in North Carolina criminal law and is fresh in my mind as a result of my recent preparations for a fall criminal law case update, I thought I’d pen a few words about the case.
The defendant in Smith and two other men were standing outside a 1972 Chevrolet in a gas station parking lot around 11 p.m. on September 11, 2010, while the driver of the car, Leach, pumped gas. The defendant stood next to the right front passenger door and another passenger, McCray, stood by a rear passenger door. Officer McDonald of the Winston-Salem Police Department approached the car—not to ask the question on my mind – “Who is your mechanic?”―but instead to tell Leach that the music playing inside the car was too loud. McCray apologized, reached into the vehicle, and turned the music down. Officer McDonald asked for Leach’s driver’s license and the vehicle registration, returned to his patrol car, and requested an additional unit. Two other officers arrived and asked the passengers for identification. Officer McDonald checked the defendant’s criminal history and found “‘an extensive local record which included numerous drug offenses,’ including possession of marijuana in June 2010.” Based on the criminal histories of all three men, Officer McDonald requested the assistance of a K-9 officer. He then began to prepare a citation for a noise ordinance violation. At this point, Leach and McCray “became verbally aggressive with the officers,” and were warned about their conduct. Defendant remained calm. McCray left the gas station.
The K-9 officer and drug dog arrived after Officer McDonald had returned Leach’s driver’s license and the vehicle registration and had begun to explain the citation. At this point, twenty minutes had expired since the officer first approached the men. Officer McDonald placed Leach and the defendant at the back of his patrol car while the dog sniffed the outside of Leach’s car. The dog alerted at the driver’s door.
Officer McDonald then searched the car, finding an open container of alcohol in the back seat but no drugs. The other officers searched Leach and the defendant. An officer discovered cocaine on the defendant, and the defendant grabbed the cocaine and threw it. The defendant was indicted for felony possession of cocaine and for resisting a public officer.
The defendant moved to suppress the drugs as the fruit of an unlawful search of his person. The trial court granted the motion and the State appealed, arguing that the drug dog’s alert to the motor vehicle provided probable cause to search the vehicle and its recent occupants for the source of the odor. Noting at the outset that the search of the motor vehicle following the drug dog’s alert was proper, the appellate court characterized the issue of whether a drug dog’s positive alert provided probable cause to search the person of a recent passenger of the vehicle who was outside the vehicle at the time of the alert to be a question of first impression.
The court distinguished the first authority cited by the State, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), in which the Tenth Circuit held that a positive alert given by a drug dog followed by a negative search of the vehicle provided probable cause to arrest the defendant-driver. The Smith court noted that Anchondo did not specify whether the defendant was inside or outside of the vehicle at the time of the search. In addition, the positive alert in Anchondo was made on the defendant’s own motor vehicle, unlike the alert in Smith, which was an alert for a vehicle in which the defendant merely had been a passenger. The North Carolina Court of Appeals noted that several other state courts had rejected Anchondo, including the Supreme Court of Kansas in State v. Anderson, 136 P.3d 406 (Ka. 2006), which concluded that officers lacked probable cause to arrest the driver of a vehicle after a drug dog alerted and no drugs were found in the vehicle.
The Smith court found the logic of Anderson and of the Virginia Supreme Court in Whitehead v. Commonwealth, 683 S.E.2d 299 (Va. 2009), more persuasive than Anchondo. The defendant in Whitehead was right rear passenger in car stopped for traffic violation. While the Whitehead defendant and others were in the car, a drug dog led around the car alerted. When the search of the vehicle turned up empty, the officers searched the occupants. Whitehead had drugs on his person. The Virginia Supreme Court held that, absent some additional incriminating factors, a positive canine alert as to motor vehicle on its own does not establish probable cause sufficiently particularized as to a passenger to allow the search of his or her person. Relying upon United States v. Di Re, 332 U.S. 581 (1948), and Ybarra v. Illinois, 444 U.S. 85 (1979), Whitehead ruled this sort of mere proximity to criminal activity insufficient to establish probable cause.
The court of appeals in Smith similarly concluded that defendant’s having been a passenger in a motor vehicle as to which a drug dog alerted and which was found to contain no contraband did not, without more, provide probable cause to conduct a warrantless search of the defendant’s person. Thus, the court of appeals affirmed the trial court’s ruling granting the defendant’s motion to suppress.
It is not clear how Smith applies to facts that differ even in relatively minor ways from its own. For example, could the officers have searched the defendant had he been inside the vehicle when the dog alerted? I’m doubtful that a post-Smith court would find such a search supported by probable cause, absent additional particularized suspicion, but Smith does not squarely address this issue. On the one hand, Smith cites as support Whitehead, a case in which the Virginia Supreme Court found that a drug dog’s alert to an occupied motor vehicle did not, standing alone, establish probable cause to search a passenger who was in the motor vehicle. On the other hand, without intimating disagreement with the Virginia Supreme Court’s reasoning, Smith characterizes Whitehead as creating a “stronger case for probable cause” than existed in Smith.
What if the defendant in Smith had been the driver of the vehicle? Would the dog’s alert, the search that came up empty, and the defendant’s control of the car have provided probable cause to search his person? Smith does not answer this question. Perhaps the Smith court’s reliance upon Anderson, a case in which the Kansas Supreme Court concluded that the search of a driver was unsupported by probable cause where it rested merely upon the fact that a drug dog alerted to the driver’s car and no drugs were found in the vehicle, indicates that it too would find such a search unlawful. Yet the Smith court’s repeated references to the defendant’s status as a passenger in the vehicle make it clear that the court left this question unresolved.
A few weeks after Smith was decided, the state supreme court granted the State’s request for a temporary stay. Stay tuned to see if the state’s high court agrees to review the case.
May an officer prolong a routine traffic stop for four and a half minutes to allow a drug dog to sniff the exterior of the vehicle–even if the officer lacks reasonable suspicion to believe that drugs are in the car? Yes she may. The court of appeals held this week in State v. Sellars, No. COA11-1315 (August 7, 2012), that such a delay is de minimis and does not violate a person’s Fourth Amendment rights.
Two police officers from the Winston-Salem Police Department stopped the defendant in Sellars as he was traveling on Interstate 40 after seeing him twice weave out of his lane. The officers, one of whom was a detective, were patrolling together with a drug dog in the back of their car. The detective determined immediately after stopping the defendant that he was not impaired. The detective asked the defendant for his driver’s license and noticed that the defendant’s hand was shaking when he handed the license to him. The defendant’s heart also was beating fast. The detective told the defendant he would not be cited for the traffic violation, and asked the defendant to accompany him to the police car. When the detective entered defendant’s information into his computer, he found an “‘alert’” posted by the Burlington Police Department indicating that the defendant was a “‘drug dealer’” and a “‘known felon.’” After seeing the alert, the detective decided to have the drug dog sniff the defendant’s vehicle.
The detective returned the defendant’s driver’s license and issued a warning ticket. While the defendant was still sitting in the police car, the detective asked the defendant whether he had drugs or weapons in his car. The defendant said he did not. The detective then asked for consent to conduct an “open-air drug dog sniff” of the vehicle. The defendant refused. The detective nevertheless directed the defendant to stand near the other officer while the dog sniffed the exterior of the defendant’s vehicle. Four minutes and thirty-seven seconds later, the dog alerted. The detective then searched the car and found cocaine.
The defendant was indicted on drug charges. He moved to suppress the evidence found in his car. The trial court suppressed the evidence on the basis that the police lacked reasonable suspicion to detain the defendant after issuing the warning ticket and returning the defendant’s license. The State appealed, arguing that (1) the officers had reasonable suspicion to extend the stop of defendant after he was issued the warning ticket and his driver’s license was returned; and (2) regardless of whether the officers had reasonable suspicion, any prolonged detention was de minimis and did not violate defendant’s Fourth Amendment rights. The court of appeals agreed with the State’s latter argument and reversed on that basis, declining to consider whether reasonable suspicion supported the defendant’s continued detention.
The court acknowledged seemingly contradictory statements in its earlier opinions about whether an extended detention, of any duration, of a defendant beyond the scope of the initial traffic stop need be supported by reasonable, articulable suspicion. Compare State v. Falana, 129 N.C. App. 813, 816 (1998) (holding that “[o]nce the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion to justify further delay”) and State v. Jackson, 199 N.C. App. 236, 240 (2009) (holding that officer lacked the reasonable, articulable suspicion that was required to extend the stop for the purpose of asking a handful of questions unrelated to the traffic stop) with State v. Brimmer, 187 N.C. App. 451, 455 (2007) (holding that prolonging a defendant’s detention for an additional minute and a half to allow a dog to sniff around the vehicle does not extend a traffic stop so as to require reasonable, articulable suspicion of criminal activity). The court characterized these opinions as evolving from two lines of cases: Falana—decided before the U.S. Supreme Court ruled in Illinois v Caballes, 543 U.S. 405 (2005), that a dog sniff of the exterior of a defendant’s vehicle is not a search subject to the Fourth Amendment; and Brimmer—decided after the U.S. Court of Appeals for the Eighth Circuit held in United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), that the artificial line marking the end of a traffic stop does not foreclose dog sniffs that occur within a short time following the completion of a traffic stop if they constitute only de minimis intrusions on the defendant’s Fourth Amendment rights. The court concluded that the de minimis rule of Brimmer applied, notwithstanding post-Brimmer jurisprudence to the contrary. Noting that Brimmer held a one-and-a-half minute delay to be de minimis and Alexander found a four-minute delay de minimis, the Sellars court concluded that the four minute and thirty-seven second delay in that case also was de minimis.
While Sellars addressed a delay associated with a drug dog sniff, its analysis almost certainly applies to allow a de minimis extension of a traffic stop for the purpose of questioning that is unrelated to the basis for the stop. Indeed, in holding that the Fourth Amendment does not require separate justification before an officer may inquire about matters unrelated to the basis for a lawful seizure, the U.S. Supreme Court characterized Caballes as instructive. See Muehler v. Mena, 544 U.S. 93, 101 (2005); see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”) Two of the cases cited by Sellars in the Falana progeny that it characterized as superseded by Brimmer–State v. Jackson, 199 N.C. App. 236 (2009) and State v. Myles, 188 N.C. App. (2008)–involved traffic stops that were held to have been unlawfully prolonged by questioning unrelated to the stop. And other courts have applied the de minimis doctrine in this context. See, e.g., United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012) (explaining that a traffic stop is not “measurably” extended by extraneous questioning even when such questioning undeniably prolongs the stop to a minimal degree).
Sellars does not identify an outer time limit at which the delay for investigation unsupported by reasonable suspicion gains constitutional significance. Is a five-minute delay de minimis? How about a ten- or fifteen-minute delay? Cf. United States v. Peralez, 526 F.3d 1115, 1119-20 (8th Cir. 2008) (delay of approximately thirteen minutes caused by questioning unrelated to the stop unconstitutionally prolonged the detention). For its part, the U.S. Court of Appeals for the Fourth Circuit has rejected the notion that only the duration of the extended stop is relevant, adopting in its place an approach that examines whether the police diligently pursued the investigation of the justification for the stop. See United States v. Guijon-Ortiz, 660 F.3d 757, 766 (4th Cir. 2011). Under the Fourth Circuit’s formulation, the Fourth Amendment is violated by a search or seizure that occurs when an officer, without reasonable suspicion, abandons the prosecution of a traffic stop and “embark[s] on another sustained course of investigation.” See id. (internal citations omitted); see also United States v. Digiovanni, 650 F.3d 498, 511 (4th Cir. 2011), as amended (Aug. 2, 2011) (discussed in this earlier post).
Stay tuned to see how Sellars and the revived and restored Brimmer play out in our state’s appellate courts.