Must You Submit To Canine Sniff During A Traffic Stop?

 

 

You’re driving on a quiet residential street and you fail to come to a complete stop at a stop-sign before turning right.  A police car pulls out of a side street and pulls you over.  The police officer asks for your license.  Then he asks if you mind waiting around a bit so he can call a K-9 unit to sniff your car before you leave.

The K-Nine Unit

The BEST answer:  Say something like, “I have nothing to hide but I have places to be today and I’d like to be on my way when we’re done discussing the traffic stop.”

The OK answer:  Tell him you don’t want the dog near your car and won’t wait around for it.

The WRONG reaction:  Tell him sure, you don’t mind if the dog sniffs.

When a police officer pulls you over for a legitimate (even though very minor) traffic violation, the traffic stop is legal.  The police officer in this case is clearly interested in using a drug-detecting canine to search for marijuana, cocaine, or other contraband.  So, we would probably be correct to assume that the reason he pulled you over for rolling through the stop sign is not because he cared about the fact that you went slowly through a stop sign in a quiet neighborhood, but because he wanted to search for drugs.  But his private motivation for pulling you over, whatever it may be, is irrelevant.  Legally, all that matters is the fact that he had a valid legal reason for stopping you – the stop sign violation.

However, since he stopped you for the stop sign violation, the traffic stop has to be limited to the activities that are connected with investigating and acting upon that violation.  That is, the officer can reasonably write you a ticket, or write you a warning, or issue a verbal warning.  He can check your license status and do other things typical to a traffic stop.  He can even ask some questions that are not related to the traffic stop if he keeps it brief.  What he cannot do, however, is detain you unreasonably on the pretense of the traffic stop while really conducting a protracted investigation on other matters.  To do that, he would need your permission.  Do not give it to him.

This is why the WRONG reaction is wrong, it gives him permission to extend the traffic stop in order for a drug-detecting dog to come to the scene and sniff your car.  If you don’t give your permission, the officer will have to let you go after he is done writing the ticket, or warning you, or whatever he intends to do.  Once the traffic stop is over, he has no more reason to hold you and if the dog has not arrived by then, you are free to leave and the dog will not have a chance to sniff your car for drugs.

The OK answer is mostly correct because it lets the officer know you do not consent to the traffic stop being lengthened in order to allow for the drug dog to come.  However it also incorrectly gives the impression that you have a right to refuse to allow the dog to sniff your car.  The fact is, when a drug-detecting dog sniffs your car, it is not legally considered a search.  Courts assume that the only things a drug-detecting dog detects are illegal drugs which, the courts say, a person has no right to keep private.  Thus, legally, it’s not considered a search – more like a test with only two outcomes –  “drugs present” or “drugs not present.”  In short, you can prevent the officer from extending the duration of the traffic stop in order to allow time for the drug detecting dog to arrive.  But you cannot refuse to allow the dog to sniff your car if the dog arrives on the scene while the traffic stop is still ongoing.  So the thing to do is to make sure the traffic stop is short and ends before the drug dog arrives.

Thus, the BEST answer is to politely explain to the officer that you have nothing to hide but you have places to be and do not want to wait around for the drug dog if you have a choice in the matter.  This has to be handled delicately and politely because, if you give the impression you have something to hide, the officer may try to find other things to investigate in order to legitimately delay the traffic stop and allow more time for the drug dog to arrive.  For example, an officer who is not suspicious of your explanation that you have places to be and do not want to wait for the drug dog, may just issue a written warning and send you on your way.  An officer who is suspicious however, may choose to check your criminal history through a number of databases or on the radio with dispatch.  He may decide that, for officer comfort and safety, he needs you to step out of your car and join him in his cruiser.  He may decide that he needs to check on your residency status in order to verify that your license status is accurate.  Or he may take a long time writing the ticket.  In short, there are a number of at least semi-legitimate avenues an officer can use to prolong a traffic stop to give the drug-dog a chance to travel to the scene.  Thus, the BEST answer is the one which makes clear that you do not consent to wait around for the drug-dog but does not arouse the officer’s suspicion that you have something to hide.

If you are under investigation, or have been arrested by any Columbus law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.

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