KY: Use of drug dog during stop unjustified and suppressed

Defendant was stopped for weaving. Before the stop, however, other officers and this officer had discussed defendant being involved with drugs. That played a part in following defendant, but he did, in fact, weave. After defendant passed field sobriety tests and a portable breath test, the officer asked for consent and it was refused. Then he ran his drug dog for two minutes, and the dog alerted. The search of the car based on the dog alert is suppressed because the use of the drug dog extended the stop without justification because there was no indication the dog would find anything related to the traffic offense. [Note, there is no discussion of when the “normal incidents” of a traffic stop of checking the DL and LPN were complete]. Davis v. Commonwealth, 2016 Ky. LEXIS 99 (March 17, 2016):

We agree with the trial court that Officer McCoy lawfully stopped Appellant’s vehicle after witnessing it cross the center line. This observed violation, supported by the observation of the open beer can in the car, provided reasonable suspicion that Appellant may have been driving while intoxicated. Accordingly, McCoy was authorized to detain Appellant for the routine purpose of determining his state of sobriety and his ability to drive. This lawful detention properly extended throughout the time required to administer the two field sobriety tests. The critical question is whether, after the field sobriety tests and McCoy’s personal observation of Appellant substantially eliminated a legitimate concern about Appellant’s sobriety, it was lawful to prolong the detention to enable Chico to perform the sniff search.

“Although an officer may detain a vehicle and its occupants in order to conduct an ordinary traffic stop, ‘any subsequent detention … must not be excessively intrusive in that the officer’s actions must be reasonably related in scope to circumstances justifying the initial interference.”‘ Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013) (quoting United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005) (citation omitted)). “Thus, an officer cannot detain a vehicle’s occupants beyond completion of the purpose of the initial traffic stop unless something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot.” Id. (citations and internal quotations omitted); see also United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998).3 If the traffic stop is prolonged beyond the time required for the purpose of the stop, “the subsequent discovery of contraband is the product of an unconstitutional seizure.” Epps v. Commonwealth, 295 S.W.3d 807, 811 (Ky. 2009) (citation omitted).

In Epps, we explained that a canine sniff search for drugs itself does not necessarily implicate Fourth Amendment concerns because a vehicle owner has no reasonable expectation of privacy that this mode of narcotics detection will not be used during a legitimate traffic stop. Id. at 810. As long as the sniff search is conducted during the course of a lawful traffic stop, including any lawful extensions of the traffic stop, the search is proper and does not violate the Fourth Amendment. Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App. 2005) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (“Investigative detention [in relation to a narcotics canine sniff search] must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”).

. . .

The problem with this reasoning is that, in addition to passing two sobriety tests, no evidence suggests that Appellant’s speech, demeanor, or behavior otherwise exhibited any characteristics associated with drug or alcohol intoxication from which an officer might reasonably believe further investigation was necessary. Moreover, a sniff search of the vehicle by Chico could not possibly serve the purpose of the traffic stop by showing whether Appellant was driving under the influence of any substance. The only reason for the sniff search was to discover illegal drugs in Appellant’s car, which adds nothing to indicate if the driver is under the influence and is clearly beyond the purpose of the original DUI stop. The evidence unequivocally established, and the Commonwealth agrees, that McCoy had concluded his field sobriety investigation. It is obvious that his purpose then shifted to a new and different purpose. With no articulable suspicion to authorize an extended detention to search for drugs, McCoy prolonged the seizure and conducted the search in violation of Rodriguez and Appellant’s Fourth Amendment protections. Consequently, we conclude that the fruits of that search must be suppressed.

I don’t entirely know what to make of this case. It omits mention of the check of the driver’s license and other paperwork and focuses on the use of the drug dog as having a relation to the purpose of the stop.