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.

Is stinking of pot enough of a reason for police to search someone’s car?

The Nebraska Supreme Court didn’t quite come up with an answer today, but the case that started in Aurora, Neb. gives police a little more leeway. 

In 2011 Roger Dalland and his girlfriend were at the law enforcement center at Aurora talking to police about something completely unrelated to drugs.  The police couldn’t help but notice Dalland’s clothes reeked of marijuana smoke.  (As the Court of Appeals judge summarized it: “Given that the odor remained on Dalland the entire time he was at the law enforcement center, we can ascertain that the odor lingered on his person for a substantial period of time.”)   

A search of his car out in the parking lot turned up syringes that later tested positive for meth.  Arrested, convicted, and sent to jail, Dalland appealed claiming the smell of pot is not reason enough to trigger the search of his vehicle, so the needles never should have been allowed in as evidence. 

The Court of Appeals took Dalland’s side.  The judge wrote:  “while Dalland may have encountered it in his vehicle, he may have encountered it any number of ways and in any number of locations throughout the day.”

In today’s ruling, the Nebraska justices did not come flat out and say the smell test was grounds for a search.  (Read the whole opinion here.) There was also testimony from an Aurora police officer, Cpl. Chad Mertz, who said he did the search only after following Dalland out to his car.   

There were conflicting versions of whether Mertz was aware there were syringes to be found before the search (giving plenty of probable cause for the search) or after he’d found them (which means the pot smell was the main reason to poke around car.)

By accepting Mertz’s assurance that he did the search because of the needles AND the pot smell, the Nebraska Supreme Court said the search of Dalland was legal and his conviction stands. 

“Because we find probable cause for the search based on the combined facts that Dalland smelled of burnt marijuana and that he admitted prior to the search of his vehicle to having needles in the vehicle, we do not reach the question whether the odor of marijuana emanating from Dalland was sufficient to establish probable cause.”

The Supreme Court’s closing take on the case seems to leave unresolved the most interesting question:  If you show up at the police department smelling like pot, is that reason enough to bring on a search?

NET News did quite a bit of reporting on the new legal landscape involving marijuana.  Check out our documentary Marijuana Crossroads and links to our radio stories HERE.