Did Floyd The Drug Dog Violate the 4th Amendment of the Constitution?

Okay, it wasn't really Floyd.  It was his handler on the Valley, Nebraska Police Department.  And the question was how long Floyd had to wait in the car before he started sniffing around.  

The Eighth Circuit of the U.S. Court of Appeals had to figure out how long someone should wait to be searched after being pulled over by a K-9 unit suspicious about hidden drugs.  Is 20 minutes too long?  Ten minutes?  Even two?  

UPDATE! The United States Supreme Court overturned the 8th Circuit Court of Appeals ruling in this case. (Read the full opinion here). In a 6-3 decision the justices ruled police may NOT extend routine traffic stop to wait for drug dog to come and sniff. The majority wrote: "Absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution's shield against unreasonable seizures."

Using a drug dog is legal, but the courts have said you can’t make someone wait around forever for the search.  A Nebraska drug bust which made its way to the Court of Appeals caused a lot of chatter among cops and defense attorneys.  At the heart of the case were questions about whether the search was reasonable under the Fourth Amendment of the Constitution.  (That’s the one that guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”)  The ruling came down at the end of January. 

Floyd The Dog (Photo: Dean Jacobs, Fremont Tribune) 

Just after midnight on March 27, 2012 Dennys Rodriguez let his car drift off onto the shoulder while he drove through Valley. The sloppy driving caught the attention of Officer Morgan Struble, who had his drug-sniffing dog Floyd riding shotgun.  Struble handed the driver a warning ticket for the bad driving, but he also noticed the heavy smell of too many air fresheners and felt the driver and passenger were a little too nervous. It was a hunch, but Officer Struble was suspicious.  He radioed in for back up and asked Rodriquez if he could walk his dog around the car.  The answer was no.   

The second officer arrived about five minutes later.  Once Floyd the Dog hopped out of the car it didn’t take long for him to react.  Floyd found a big bag of meth.  Rodriquez and his passenger were charged by the U.S. Attorneys office and later convicted.  According to the Court of Appeals ruling "all told, seven or eight minutes had passed from the time Struble had issued the written warning until the dog indicated the presence of drugs."

Rodriguez tried to get his conviction thrown out in part “because the stop was unreasonably prolonged by the dog sniff in the absence of reasonable suspicion to continue his detention."  The three judge panel decided the traffic stop “was not unreasonably prolonged” by waiting for a second officer to arrive in the name of safety.  The conviction stood. Win one for Floyd the Dog and Officer Struble.

What’s the big deal?  As Orin Kerr, the legal writer for the Washington Post, pointed out in his Volokh Conspiracy blog  “this might seem like a really technical question. But it’s actually pretty important.”

In one sense that’s good news for K-9 officers, since the court acknowledged that waiting for another officer to be on hand was a legitimate reason for making someone wait.  In another sense it can be pretty darn confusing these days. The Floyd the Dog case has said one length of time was okay.  In other Federal Court of Appeals districts other times have been acknowledged as appropriate.  Some are longer.  Some are short.  What’s a K-9 officer to do?

Terry Fleck, a retired dog handler and deputy sheriff in California who writes extensively about drug dog legal issues, told me in an email that “handlers simply keep track of their U.S. Circuit's K-9 decisions and abide by their State's K-9 decisions as well.”  In other words, the patrol officers have slightly different rules depending on what court has ruled which way.  Could it take the U.S. Supreme Court to identify a national standard for putting dog sniffs on a clock?  Fleck says its possible, since just last year guidance came from the high court on when it was appropriate to use drug dogs for searches of residences. 

Meanwhile, Floyd The Dog has taken a new job with the Fremont Police Department.

Fed Court: Nebraska Can Deny Drivers License to Some Non-Citizens

It is legal for Nebraska’s Department of Motor Vehicles to deny drivers licenses to people brought into the U.S. Illegally as children.

The ruling came from the Federal District Court of Nebraska this afternoon. Mayra Saldana challenged the DMV’s rules in the lawsuit.  Her family moved her from Mexico to Lincoln, Neb. when she was two years old.  Twenty-two years later she wanted a driver’s license but was turned down more than once because she was not a U.S. Citizen with required documents.  Saldana felt the law had been misapplied and she was not being treated equally with other immigrants.

Sample Nebraska License

She lives in the U.S. legally, having been granted permission under what the Department of Homeland Security calls “deferred action.”  In effect, the U.S. has held off on making a decision whether to deport someone.  It’s often used in cases where kids are brought into the country by family who entered the country illegally.  The law does not recognize deferred status as legal citizenship.  

Saldana's case was dismissed with a summary judgement this afternoon by U.S. District Court Judge Laurie Smith Camp .  Judge Smith Camp, after reviewing Nebraska state law and DMV policy and procedures felt the state has a clear policy that does not treat people with differing immigration statuses in separate ways.  Camp wrote that DMV director Rhonda Lahm (the defendant in the case) treated non-citizens equally by issuing driver’s licenses only to applicants in the country lawfully.  

“Saldana is not similarly situated to persons having lawful status in the United States with respect to her qualification for a Nebraska driver’s license, and Lahm has not denied Saldana equal protection of the law,” Judge Smith Camp wrote in her order. 

 

Nebraska Attorney General Jon Bruning said in a prepared statement after the ruling was released: “We’re pleased the court dismissed the case and recognized illegal immigrants don’t qualify for Nebraska driver’s licenses.”  

You can get a permit to drive in Nebraska if you aren't a citizen.  You do need to provide one of the following:

• A valid Resident Alien Card or Permanent Resident Card.
• A valid Temporary Resident Identification Card.
• A valid Employment Authorization Card.

Read Judge Smith Camp’s order here. 

No Jail Likely In Deadly Cantaloupe Case

Eating cantaloupe made six Nebraskans very, very sick. 

One 81 year-old-man from Chadron died.  

The Colorado farmers who grew fruit tainted with Listeria will be in Federal District Court in Denver later this month for sentencing.  The brothers who own Jensen Farms, Eric and Ryan Jensen, were charged with six criminal counts of selling an adulterated food in 2011.  

According to TheGrower.com, a news site for the produce industry, the Jensen brothers struck a deal with the U.S. Attorney that will keep the farmers out of jail.  They could have been sentenced up to six years in federal prison.

Distribution of cantaloupe food poisoning cases. (Map: CDC)

The food poisoning outbreak prompted a massive investigation by the Centers for Disease Control to trace the source of the bacteria that killed 33 people and sickened another 147 in 28 states.  The CDC traced it back to melons grown on the Jensen's Colorado farm.

(Read the summary of the investigation here) 

Among the dead was George Drinkwater of Chadron, Neb. who ate the tainted melon for breakfast a couple of days in a row.  TheGrower.com reports there are currently 66 civil lawsuits pending across the country, filed by victims and their family members against the Jensens, distributor Frontera Produce, a food safety auditing company, PrimusLabs, and grocery stores that sold the cantaloupe, including WalMart. 

The Jensens filed their own lawsuit against Primus claiming they would not have shipped their fruit if the auditor had done its job and reported back that their operation was not up to standards.