Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors At Law
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Dog Searches: Can Two Police Officers Do What One Cannot?

The use of dogs to sniff out contraband remains one of the most frequent methods by which police discover contraband in vehicles traveling on the highway. The Supreme Court has allowed such searches in limited circumstances, but only in those instances where there is not a delay between the stop and the dog's arrival. Anything beyond a brief delay constitutes a seizure, which requires probable cause to be lawful. This "time-limiting doctrine" was firmly adopted by the Supreme Court in Rodriguez v. United States.

Despite this well-established rule, it is not unusual to see some police officers stretch it to its breaking point. Such is the case of United States v. Gorman. In Gorman, an officer pulled over a motor home for the stated purpose of issuing the driver a ticket. He held the driver for nearly half an hour, but released him without giving him a citation. During the stop, the officer unsuccessfully attempted to call a drug sniffing dog to the scene..

Unable to achieve his purpose and fully aware he lacked probable cause to search the vehicle, but believing that the vehicle was transporting "drug" money, the officer decided to be clever. After telling the driver he was free to go, the officer called ahead to an officer in the next county, advised him to have a dog available, and told the second officer to "watch" the vehicle for a second violation. Following these instructions, the second officer did precisely as instructed, and ultimately seized approximately $167,000.00, which the government sought to forfeit as illegal drug proceeds. The owner of the currency moved to suppress evidence of the second search.

On appeal, the Ninth Circuit concluded that the second stop was the result of the unconstitutionally prolonged first stop and, therefore, the seized money was "fruit of the poisonous tree" and should have been suppressed. In doing so, the court concluded that there was an indisputable "causal connection" between the driver's initial detention and the subsequent dog sniff. Additionally, the first officer "significantly directed" the actions of the second officer, such that the first officer's actions were part and parcel of the second stop. Indeed, the second officer made a special trip to the highway to locate the vehicle accompanied, of course, by the requested canine. The court noted, "[T]he facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gorman's detention." It was only because of the actions of the first officer that the second officer conducted his stop and search. The Court found that these actions constituted, "a single integrated effort by police to circumvent the Constitution by making two coordinated stops... An illegal police venture cannot be made legal simply by dividing it into two coordinated stops."

The tactics employed by law enforcement to search a vehicle can be quite devious. If you are stopped, promptly produce documents requested of you, be respectful, do not volunteer any information and refuse to consent to any search of your vehicle. Should you be requested to consent to a "brief delay" while a dog is requested, decline to do so. If you are told you cannot leave after you have been cited, or the officer has indicated he is not going to issue a citation, you have been seized for purposes of the Fourth Amendment. Do nothing to either supply probable cause to search, or otherwise agree to a search of your person or your vehicle. 

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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