OH9: Dog sniff during normal incidents of traffic stop not unreasonable

A dog sniff during the normal incidents of a traffic stop isn’t unreasonable. An arrest outside of an officer’s jurisdiction in violation of statute also thus violates the state constitution but not the Fourth Amendment. State v. Duran, 2016-Ohio-5459, 2016 Ohio App. LEXIS 3353 (9th Dist. Aug. 22, 2016):

[*P14] Mr. Duran also argues that the search was not done in furtherance of any governmental interest. He notes that in Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 191 L. Ed. 2d 492 (2015), the United States Supreme Court noted that a dog sniff is not an ordinary incident of a traffic stop. Id. at 1615. It explained that a dog sniff does not assist a law enforcement officer in determining whether to issue a traffic ticket, but instead is a measure aimed at detecting ordinary criminal wrongdoing. Id. Even so, that does not establish that a dog sniff that is conducted during the duration of an otherwise lawful stop infringes on an individual’s right to privacy.

[*P15] In his reply brief, Mr. Duran argues that there is a substantial difference between a random passerby approaching a vehicle when it is stopped on the street and a law enforcement officer conducting a dog sniff of that vehicle. Although he concedes that “no one has a privacy interest in the exterior of his car,” he argues that a dog sniff is just the first step in an invasive search of the interior of the vehicle, which does implicate privacy interests. He also argues that new studies have shown that dog sniffs are unreliable and result in a number of false positives. Because Mr. Duran did not make these arguments in his initial brief, however, they are not properly before us. State v. Newman, 9th Dist. Summit No. 23038, 2006-Ohio-4082, ¶ 6 fn.1.