PLW: The Fourth Amendment and the Role of Drug-Sniffing Dogs

Matthew T. Mangino
The Pennsylvania Law Weekly
May 12, 2015
In 1968, the U.S. Supreme Court carved out a new legal standard of proof. "Reasonable suspicion" is a product of the landmark decision in Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion is less than probable cause—the standard for arrest and obtaining a search warrant—but more than a seasoned police officer's "hunch," according to the opinion.
Reasonable suspicion must be based on "specific and articulable facts ... taken together with rational inferences from those facts." In other words, the police must believe that a person has committed, is committing, or is about to commit a crime, and a reasonable belief that the person "may be armed and presently dangerous."
A Terry stop does not violate the Fourth Amendment ban on unreasonable search and seizure. Reasonable suspicion does not provide grounds for arrest; however, an arrest can be made if facts discovered during an investigatory stop provide probable cause to arrest the suspect for a crime.
Terry and its progeny bring context to the court's decision last month regarding the Fourth Amendment and drug-sniffing dogs.
Fifteen years after Terry, the U.S. Supreme Court decided United States v. Place, 462 U.S. 696 (1983). Place held that a sniff by a trained police dog is not a "search" under the Fourth Amendment. The court reasoned that the sniff of a dog is intended to reveal only the presence or absence of narcotics. Because a dog sniff is so limited, the court carved out an exception from the broad category of searches for which a warrant is generally required.
Nearly 20 years later, the court revisited the dog-sniffing issue. In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court limited the power of the police to conduct a search without suspicion for purposes of drug interdiction. The court ruled that a vehicle checkpoint for drugs was itself an impermissible seizure. However, the court refused to say a dog sniff is a search. The court held, "The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search."
Only about five years later, the court was again going to the dogs. In Illinois v. Caballes, 543 U.S. 405 (2005), the court held that the Fourth Amendment is not violated when the use of a drug dog during a routine traffic stop does not unreasonably prolong the length of the stop.
Just when it appeared that drug-sniffing dogs would have free reign, the Supreme Court tamed the dogs a bit in Florida v. Jardines, 560 U.S. ___ (2013). The court held that a sniff by a police-trained dog on the front porch of a private residence is a search under the Fourth Amendment and, absent consent, requires probable cause and a search warrant.
Last month, the court further restricted drug dogs in Rodriguez v. United States, 13-9972. In 2006, a Nebraska police officer saw a vehicle driven by Denny Rodriguez weaving on the highway just after midnight, according to the opinion. The officer performed a routine traffic stop, questioning Rodriguez and his passenger, and ran a record check. He then issued Rodriguez a written warning.
The officer then detained Rodriguez until a K-9 officer arrived to have the vehicle scanned by a drug-sniffing dog. Approximately 29 minutes into the stop, Rodriguez was arrested for having methamphetamine in his vehicle. He sought to suppress the search as a violation of the Fourth Amendment.
The case made its way to the Supreme Court. During oral argument, Justice Sonia Sotomayor raised concerns. She suggested that the Supreme Court's recent Fourth Amendment jurisprudence was "flying off the rails" due to its pro-police deference, according to Reason magazine.
"We can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not ... incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper."
Last month, the court ruled that police officers violated Rodriguez's constitutional rights when they extended a completed traffic stop to allow time for a drug dog. The 6-3 majority said police officers must let a driver leave unless they have reasonable suspicion that the car is carrying contraband.
"A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures," Justice Ruth Bader Ginsburg wrote.
Ginsburg, who wrote a dissent in Caballes, said that decision had merely "tolerated certain unrelated investigations that did not lengthen the roadside detention."
"An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop," she wrote. But, she added, "he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual."
Justices Clarence Thomas, Samuel A. Alito Jr. and Anthony Kennedy dissented. Thomas' dissent suggested that the stop's total duration of about 29 minutes was reasonable, so any delay regarding the dog did not violate the Fourth Amendment.
Alito, in a separate dissenting opinion, suggested that the majority opinion could encourage officers to endanger themselves by conducting a dog-sniff search without waiting for backup.
However, he said, according to Politico.com, the more likely result was that officers would intentionally sequence the activities involved in a traffic stop so that the license check and citation were not completed until a dog sniff was done.
"Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement," Alito wrote, adding, "I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops." 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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