The United States Supreme Court has denied the petition for certiorari in an Illinois case involving deployment of a K9 during a routine traffic stop. Sorry for the delay on the update-I know I made several posts concerning this case in the spring. The training pace here at USMC Quantico has kept me busy...

In December 2002, the Illinois Supreme Court handed down its decision in People v. Anne Cox (http://www.state.il.us/court/Opinions/SupremeCourt/2002/December/Opinions/Html/90759.htm). Basically, the opinion questioned the duration of the stop, finding that the officer had improperly extended the stop in order to wait for the K9 to arrive. This constituted an improper seizure.

However, the court went on to insert very dubious language about whether the officer had reasonable and articulable facts building suspicion that warranted deployment of the dog. (This part is in the last paragraph of the majority opinion.) The problem with that analysis is the fact that courts have always held that a sniff is not a search, thus does not require suspicion of any kind. In fact, there is an enormous body of case law on the subject, almost all of which is in complete agreement. The only question normally analyzed is whether the reason for, and duration of, the original stop were appropriate.

This deviation from proper "sniff analysis" caused alot of hubbub in Illinois. At the time, I was working for the Attorney General's office, and participated in the drafting of our briefs for the Illinois and United States Supreme Courts. Our position was that the officer didn't need any suspicion to deploy the dog. However, many defense lawyers argue that the language of the case requires reasonable suspicion for K9 deployment. I would argue that the case only applies to situations where the duration of or reason for the stop are bad.

However, the U.S. Supreme Court disagreed. On 13 June 2003, they denied the petition for certiorari without comment. I do not know if Illinois has filed a motion to reconsider. This decision, if interpreted incorrectly, could have a severe impact on K9 use at traffic stops in Illinois. The effect could spread if attorneys in other states transfer that incorrect analysis as persuasive authority in their arguments. I think that K9 officers and the prosecutors with whom they work should be aware of it, and prepared to defend against this type of argument.

Semper Fidelis,

2nd Lt PEDDEN, I.D.
USMC

The hyperlink didn't transfer on the previous post. Here it is.

http://www.state.il.us/court/Opinions/SupremeCourt/2002/December/Opinions/Html/90759.htm

Originally posted by Iain Pedden:
The hyperlink didn't transfer on the previous post. Here it is.

http://www.state.il.us/court/Opinions/SupremeCourt/2002/December/Opinions/Html/90759.htm Early on, back when US v place was decided one of the justices called the canine snif a search, but one that did not rise to the level of being in violation of the 4th amendment. It was cdalled specific and unhopbtrusive yet still a search. I don't recall the exact quote from the decision in Place but it appears that this thought process of a snif is a search but an acceptable one has come back to haunt us.

Originally posted by Iain Pedden:
I would argue that the case only applies to situations where the duration of or reason for the stop are bad. It seems to me if the reason is bad to begin with then it is a non-issue and we already know the outcome of this one.

My question to you Iain being the Legal Beagle here: Would you not agree it is the definition of what a reasonable detainment is for the use of a K9?

Also if there is such a case out that defines reasonable dertainment could you point us to it?

Thanks.

The argument, as explained to me by our legal beagles and others involved in interdiction is really the same argument dressed in different clothing. One of the most prominent issues has always been the length of detention. The answer has pretty much always been the same. The length of detention is in direct proportion to the amount of articuable suspicion, based on fact. We've all seen the instances where 90 minutes was upheld yet 30 minutes was too long. It's when you actually discuss the case with the officers involved and see first hand the amount of articulable suspicion they were able to testify too that made the difference.

DFrost

The Pennsylvania Supreme Court has also ruled that a K-9 sniff is a search under our state Constitution. We are limited to an exterior sniff of the vehicle only upon developing reasonable suspicion. Our courts have held repeatedly that 20 minutes is a "reasonable" duration for a traffic stop. Unfortunatly we are not permitted, based on the above, to sniff empty cars in parking lots and the like. Needless to say, it has hampered drug interdiction in our high crime areas greatly.

Several replies:

Dennis, there are lots of cases, and I wouldn't know where to begin. The bottom line in all cases, state and federal, is that these determinations are made on a "totality of the circumstances" basis. This means that in some cases, 30 minutes is good, and in others, 20 is bad. The court will weigh all information involved, so the more detailed the report the better. The officer on the scene should be aware that he needs to act efficiently, and be able to account for it later. Generally, if it's reasonable to a normal person that you would want to detain an individual for a short period of time to conduct a brief investigation or assure compliance with state traffic requirements like registrations, etc., that's OK. You only run into problems when you detain for the purpose of securing further information, and don't have articulabe suspicion for extending the duration fo the stop.

Also, as Ptrlmn Grubb noted, states have different rules. They can extend more protection under their constitutions that the fed does. Thus, states can require reasonable suspicion, whereas the US Supremes have stated that the fed constitution does not.

The mission for us is to continue to assert the "canine crossroads": first, that K9 dedployments are absolutely reliable. Obviously, this onvolves meticulous recordkeeping, training, and dog selection. Second, they are minimally intrusive (i.e., they ONLY indicate the presence or absence of contraband, whereas a visual search could reveal other items, like porn, underwear, or other private things.)

Stand by, all hands, for a bitter battle on this one. Meanwhile, I'm going to the USMC kennel, Quantico, to take some bites this weekend. I'm also observing their tracking training. As I understand it now, they are rewarding with a bite at the end of the trail in order tofacilitate speed in mantracking. The wife arrives down here Labor Day weekend. Hallelujia.

Part of the totality of the circumstances is the officer's experience in interdiction, either individually or second hand through direct observation. Schools like Desert Snow, Pipeline and others are priceless. Watching GOOD interdiction officers work is invaluable. When young or otherwise inexperienced officer "try their hand" at interdiction work, we all pay. I'd much rather see an officer unsure of what to or how to do on an interdiction stop turn a load loose than generate bad case law.

Here in Northern Arizona, I have detained for over an hour due to the availability of resources. Efficency is also key here; was every reasonable effort made to acquire a certified narcotics detection dog team for that stop made? I have requested a certified detection dog from another agency when one was not available from my own, the wait was over an hour but I could articulate my reasons for detention and the time elapsed getting a dog team to the scene. It stood in the 9th circuit.

It bothers me as much as anyone else to let a load go. If consent is refused, a dog team not available and the level of probable cause ( which also fluctuates from officer to officer based on the same totality of circumstances with exceptional emphasis on experience) can not be met.....cut it loose!! Dope moves all day every day, another load will come your way, bad case law, as Kevn pointed out, will haunt us until it is reversed and we all know the likelihood of that!

Gordon,

Well said. Whether we like it or not, there are a set of rules we have to go by. What we do will always be subject to discussion and argument for years to come. Sometimes it's tough for us to have to make a split second decision, on the side of the road, sometimes under a hostile environment that will be discussed by individuals with access to all the law books, in an air conditioned room, with all the time they need. We have to make sure we are right, or at least convince the adjudicating authority that what we did was in good faith. There is much to much bad case law that could have been prevented.
By the way, I attended the DIAP Conference in Phoenix in August. Your organization hosted the conference and did a fantastic job. I really enjoyed your state and even got to see the "Big Unit" pitch a game.

DFrost

Gordon,

Well said. Whether we like it or not, there are a set of rules we have to go by. What we do will always be subject to discussion and argument for years to come. Sometimes it's tough for us to have to make a split second decision, on the side of the road, sometimes under a hostile environment that will be discussed by individuals with access to all the law books, in an air conditioned room, with all the time they need. We have to make sure we are right, or at least convince the adjudicating authority that what we did was in good faith. There is much to much bad case law that could have been prevented.
By the way, I attended the DIAP Conference in Phoenix in August. Your organization, along with EPIC, DEA hosted the conference and did a fantastic job. I really enjoyed your state and even got to see the "Big Unit" pitch a game.

DFrost