In recent weeks in Northern Arizona, we have seen a surge of constitutionally questionable dog sniff cases, or “drug detection canine” cases.
The common scene is a person driving on I-40 or I-17 near Kingman, Seligman, Williams, Flagstaff, Winslow, or Holbrook (major target areas for drug dog cases). The officers pull the person over for trivial traffic violations, such as: illegal lane usage, speeding (sometimes 1 mph over the speed limit), unsafe following distance, or other trivial Arizona traffic law that is rarely enforced. The officers make the driver get out of the vehicle. The officers issue a “warning” for the bogus traffic violation and begin asking questions about drugs and illegal activity. The officers note nervousness or other “indicia” of drug trafficking. The officers then make the driver wait while they run a drug detection canine around the vehicle. The canine will breath heavily, snap its head around, bark, or claw. And with that, the cops grab your keys, open up your vehicle, invade your privacy, and pour through every personal item in your vehicle. If they find any contraband, you’ll be arrested on the side of the highway and jailed. This police process is ripe with constitutional violations.
And we love to fight back. Here are some things you should know.
Practical tip from Griffen & Stevens Law Firm, PLLC: If you are stopped for a trivial traffic violation, be polite, having your ID, registration, and insurance ready, and don’t be nervous. If the officer writes you a ticket or a warning, do not agree to speak about anything. Remain silent, but be cooperative. Do not agree to answer any questions about drugs or illegal activity. Once you have your ticket or warning and/or your ID back, ask the officer, “Am I free to leave?” If you are, then go. If he says no, exercise your right to remain silent. Do not consent to any search of your person or your vehicle.
A “sniff” by a drug detection canine of the air outside of a vehicle is not a search for purposes of the Fourth Amendment to the U.S. Constitution. United States v. Place, 462 U.S. 696 (1983). Nevertheless, Arizona prosecutors still have the burden of establishing probable cause for the warrantless search and seizure.
In another major drug dog case, Illinois v. Caballes, 125 S.Ct. 834 (2005), the Supreme Court held that the sniff of the exterior of a vehicle by a “well trained” drug detection canine during a “legitimate” traffic stop does not constitute a constitutionally cognizable intrusion upon legitimate privacy interests. But is the dog reliable? Why is a dark barking sufficient reason for the government to invade your private world against your will? Well, the State has to prove the dog is reliable and that the dog actually alerted to contraband. We have won “canine sniff” cases on several bases, including: handler cueing of the dog, bad alert, insufficient reliability of the dog, residual odor alert (which does not establish probable cause), lack of record-keeping on the dog, and many other factors.
Officers in Arizona cannot use dogs as a “free pass” to search any vehicle they want. But that’s what they are doing. To stop this unconstitutional behavior, we fight the validity of the traffic stop (bogus traffic violation), we demand information about the accuracy of the dog, and we challenge the actual dog alert and search in the court of law. The constitution may mean nothing on the side of the highway, but in court, your rights rule the day. And we’ll keep it that way.