Page 11 - Dallas Vol 5 No 1

Criminal Law
The Fourth Amendment and K-9 Searches
By Danny Clancy
We’re all familiar with the saying “dog is man’s best friend,” and use this com- mon colloquialism to de- scribe the companionship o ered by our furry friends. While this notion may hold true with our own pets, one may view the expression di erently if confronted by a K-9 o cer.
Picture this scenario: police pull you over for speeding and request your license and registration. Next, the o cer proceeds to his vehicle seemingly to issue you a cita- tion for the tra c violation. e o cer re- turns to your car a er a few moments and informs you that he has called for a K-9 to conduct an open-air search of your vehicle. Can the o cer detain you, and wait for a K-9 to arrive to search? No, unless the of- cer has “reasonable suspicion” to believe that other criminal activity is occurring or has occurred.
e Supreme Court has held that a seizure justi ed only by a tra c violation becomes unlawful when prolonged beyond the time reasonably required to conduct the tra c stop. Rodriguez v. United States, 135 S. Ct. 1609 (2015). Typically, a tra c stop is con- cluded once the o cer has issued the citation, and con rms no outstanding warrants exist. To continue a detention beyond this point there must be reasonable suspicion of crimi- nal activity apart from the tra c violation.
To have reasonable suspicion, an o cer must have speci c, articulable facts that would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. ese articulable facts only justify an in- vestigative detention if they support more than a mere hunch or intuition of criminal activity. ey must clearly show unusual activity, evidence connecting the detainee to the unusual activity, and evidence that the unusual activity relates to crime. Lastly, these facts “must be su ciently distin- guishable from that of innocent people un- der the same circumstances as to clearly, if not conclusively, set the suspect apart from them.” Wade v. State, 422 S.W.3d 661, 670 (Tex. Crim. App. 2013).
In determining what facts support rea- sonable suspicion, Texas courts have found that acting nervous and changing of the driver’s story alone are insu cient to jus- tify a prolonged detention. While nervous and evasive behavior can be relevant, such behavior is not particularly probative in determining reasonable suspicion for a prolonged detention because most citizens with nothing to hide will nonetheless man- ifest an understandable nervousness in the presence of a police o cer. Even further, “the more accusatory the questions that an o cer asks, the more nervous a citizen legitimately becomes.” Id. at 671. Addition- ally, refusing to consent to a search of the vehicle cannot form any part of the basis for reasonable suspicion as consideration of such refusal would violate the Fourth Amendment. So other factors must be ar- ticulated by o cers. ese additional fac- tors can include a prior criminal record or arrests for drug o enses, presence in a high-crime area late at night, or strong smells of drugs or other odors commonly used to hide the odor of drugs.
Lastly, the Supreme Court has issued an explicit warning to o cers not to use tra c stops as simply a means to conduct “ shing expeditions.” Ohio v. Robinette, 519 U.S. 33, 41 (1996). O cers must evaluate the rea- son for and scope of the initial detention so that once the original purpose for the stop is completed, police may not further detain drivers solely in hopes of nding evidence of another crime.
It is clear that an o cer cannot unrea- sonably prolong a tra c stop in order to conduct a dog sni without the requisite
reasonable suspicion, but this then begs the question, how long is too long? While there is no speci c time limit for the reasonable length of a tra c stop, such a stop may not be used as a shing expedition for evidence of an unrelated crime. Courts vary in what they deem to be a reasonable prolongation of a tra c stop based on the facts and cir- cumstances of the individual case. If a dog arrives on the scene before the initial stop is complete or an o cer establishes rea- sonable suspicion, courts will likely nd the stop was not unreasonably prolonged. It is important to note though that courts have found dog sni s that occur just 15 to 19 minutes into a stop have been deemed a violation of the Fourth Amendment when an o cer cannot support his reasonable suspicion to detain with articulable facts.
In all, it is clear that an o cer may not further detain a driver a er the completing a tra c stop without su cient reasonable suspicion that the driver has committed or is committing another crime. Dogs may in fact be man’s best friend, but in the event of a traf- c stop, followed by a K-9 search, maybe not.
Can the o cer detain you, and wait for a K-9 to arrive to search?
No, unless the of cer has ‘reasonable suspicion’ to believe that other criminal activity is occurring or has occurred.
Daniel Clancy, a criminal defense attorney in North Texas, maintains a practice focused on federal criminal offenses, as well as felony and misdemeanor state offenses. A native Texan and a 1991 graduate from Mississippi College School of Law, Danny holds licenses in Texas and in both the Northern and Eastern Districts. Having been a county prosecutor and crimi- nal district court judge, Mr. Clancy has seen the courtroom from every view possible and has tried or presided over hundreds of criminal cases. For more information, visit www.daniel- clancy.com or call (214) 740-9955.
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