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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)