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Five years ago, the U.S. Supreme Court made clear that the use of a well-trained, narcotics-detection dog during a lawful traffic stop generally doesn t implicate legitimate privacy interests in violation of the Fourth Amendment to the Constitution. Today s article revisits the Cabelles decision and discusses its application in a variety of circumstances.
Illinois v. Cabelles
InCabelles,an Illinois state trooper initiated a traffic stop on a vehicle for speeding. Upon hearing the trooper s announcement of the traffic stop over the police radio, a second trooper responded to the scene with his narcotics-detection dog. When the canine team arrived, the driver of the vehicle was seated in the first trooper s vehicle waiting for the issuance of a written warning ticket. The canine officer walked his dog around the driver s car and the dog alerted on the trunk. Based on that alert, the officers searched the trunk, located marijuana and arrested the driver. The entire incident lasted no more than 10 minutes.
The driver was convicted and sentenced to 12 years imprisonment and a $250,000 fine. The trial judge denied the driver s motion to suppress and quash his arrest, holding that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct a search.  The appellate court affirmed, but the Illinois Supreme Court reversed because the canine sniff was performed without any specific and articulable facts to suggest drug activity, [and therefore] the use of the dog unjustifiably enlarge[ed] the scope of a routine traffic stop into a drug investigation. 
The matter went up to the U.S. Supreme Court on the narrow issue of whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. 
The Supreme Court reiterated that a seizure that s lawful at its inception can nevertheless violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. 
For example, a seizure that s justified solely by the interest in issuing a traffic citation to the driver can become unlawful if it s prolonged beyond the time that s reasonably necessary to complete the task. The Supreme Court found that a dog sniff doesn t change the character of a traffic stop that s lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff in itself infringes on a constitutionally protected interest in privacy. The court found that precedence didn t establish such an infringement.
Indeed, [o]fficial conduct that doesn t compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment.  For example, any interest in possessing contraband cannot be deemed legitimate, and thus governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.  As such the use of a well-trained narcotics dog one that does not expose noncontraband items that otherwise would remain hidden from public view during a lawful traffic stop, generally does not implicate legitimate privacy interests. 
Applying the law to the facts of the case, the court found that the dog sniff was conducted on the exterior of the car while the driver was lawfully seized for a speeding violation. It also found that any intrusion on the driver s privacy expectations didn t rise to the level of a constitutional violation.
In sum, a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess, does not violate the Fourth Amendment.  In other words, there s no privacy interest in the odor that emanates from even a closed container because that odor is available to the public. Besides, drug sniffs do not involve the opening of containers; they merely indicate the presence or absence of drugs.
That said, if a dog sniff is performed in an area where neither the dog nor the police officer who s handling the dog is entitled to be, any subsequent alert and search will be deemed unlawful. In these situations, the person who is the subject of the search generally has a heightened expectation of privacy. But, because most dog sniffs occur in public places and are directed at vehicles or luggage, the searches are minimally intrusive and, therefore, not in violation of the Fourth Amendment.
The issue that causes officers problems in the area of canine sniffs isn t the sniff itself, but the amount of time it takes after the traffic stop is performed to get the canine to the scene to perform the sniff of the vehicle. As stated earlier, a constitutionally permissible traffic stop can become unlawful if it s prolonged beyond the time it takes to complete the necessary steps of the traffic stop.
Generally, during a traffic stop, an officer may detain the occupants of the vehicle while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation. The tasks include asking for the driver s license, the vehicle s registration, as well as inquiring about the occupants destination, route and purpose. If complications arise during these routine tasks, the vehicle may reasonably be detained for a longer duration than when a stop is strictly routine. Whether a traffic stop is reasonable in length is a fact-intensive question, and there s no per se time limit on all traffic stops. That is, each case will be evaluated on the circumstances of that particular case.
In the absence of reasonable suspicion of criminal activity, dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions on the defendant s Fourth Amendment rights.  [W]hen a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigative procedure, it does not violate the Fourth Amendment to require that the offending motorist s detention be momentarily extended for a canine sniff of the vehicle s exterior. 
On the other hand, if during the traffic stop the officer develops reasonable suspicion of criminal activity outside of the basis for the original traffic stop, they may detain the vehicle for a reasonable length of time to perform a dog sniff. The motorist can be detained well beyond a de minimus time frame. What s considered a reasonable length of time is the topic of much debate. The Supreme Court is reluctant to set rigid time limitations or set bright-line rules. Instead, and the lower courts agree, the real focus isn t so much the time of the detention, but the diligence of the police officers in requesting a canine for a drug sniff.
Following is a list of cases holding a lengthy detention reasonable while officers were waiting for a canine:
- United States v. Lebrun,261 F.3d 731, 734 (8th Cir. 2001): 20 minutes waiting for drug dog was not deemed unreasonable;
- United States v. Orsolini,300 F.3d 724, 730 (6th Cir. 2002): 35 minutes waiting for the canine unit to arrive was not deemed unreasonable;
- United States v. Davis,430 F.3d 345, 354 (6th Cir. 2005): police had reasonable suspicion to detain suspect for 30 45 minutes to wait for the first drug-detection dog to arrive;
- United States v. Alpert,816 F.2d 958 (4th Cir. 1987): upholding 50 minute detention; and
- United States v. White,42 F.3d 457, 460 (8th Cir. 1994): finding delay of one hour and 20 minutes for arrival of drug dog reasonable.
The Bottom Line
Police officers would be prudent to document the events of the traffic stop and resulting canine sniff in a police report. Some might argue it s a little much to require actual written documentation in a police report when the traffic stop concluded and/or a canine unit was called to the scene, particularly when these types of incidents aren t uncommon. At the very least, I suggest recording the times of the events by communicating to the dispatcher. This is useful if the dispatch tapes are saved and not recorded over.
Laura L. Scarryis a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986 1992. Contact her firstname.lastname@example.org.
- Illinois v. Cabelles, 543 U.S. 405, 409 (2005).
- Id. at 407.
- Id. (citing United States v. Jacobsen, 466 U.S. 109, 124 (1984)).
- Cabelles, 543 U.S. at 409 (citation omitted).
- Id. at 410.
- United States v. Alexander,448 F.3d 1014, 1016 (8th Cir. 2006).
- United States v. $404,905.00 in U.S. Currency,182 F.3d 643, 649 (8th Cir. 1999) (holding a two-minute delay to conduct a canine sniff is a de minimus intrusion on the driver s personal liberty);Alexander, supra(four minute detention between conclusion of stop and drug dog s alert was de minimus detention).
- See, e.g., United States v. Sharpe,470 U.S. 675 (1985).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.