Is It Legal For Police To Use Drug Dogs During A Traffic Stop?

Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2014). Episode 069 (Duration 16:58)

Gist: In Rodriguez v United States, a police officer conducts a drug dog sniff during a traffic stop after the business of the traffic stop was over. Was this legal or illegal?

Case Brief

IssueIs it legal or police to use a police K9 during a traffic stop?FactsCar is stopped after a minor lane infraction. After the business of the stop hand ended officer returns ID to car occupants. The officer then asks Defendant for permission to conduct a drug sniff around the car. Defendant says “no.” At that point, the officer detains the driver and passenger so that the drug dog could sniff the car. The K9 alerted, and police found over 50 grams of methamphetamine in the car.AnalysisThe critical question is not whether the police dog sniff occurs in a reasonable amount of time, nor whether the dog sniff occurred before or after the ticket is written, but instead the critical question is whether conducting the sniff adds time to the stop. Police must always be moving the business of the traffic stop forward.Holding It appears the officer may have unreasonably prolonged the traffic stop just to give his K9 time to sniff. That is unconstitutional.Related CasesIllinois v. Caballes, 543 U.S. 405 (2005). (K9 drug sniff is not considered a search for 4th amendment purposes); Florida v. Jardines, 133 S.Ct. 1409 (2013) (drug dog brought to front stoop of a house); Florida v. Harris, 133 S.Ct. 1050 (2013) (drug dog reliability is determined by a totality of the circumstances)

Rodriguez v. U.S.

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Issue

Does the Fourth Amendment tolerate a police dog sniff during traffic stop after completion of the reason for the stop?

Facts

See People v. Gaytan, 2015 IL 116223 (May). Episode 073 (Duration 21:40)

It turns out that a traffic stop based on reasonable mistake of law is not illegal. What happens when a police officer stops a car based on the officer’s mistaken interpretation of a traffic law?

Can an officer’s mistaken interpretation of the law support a seizure?

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The United States Supreme Court case of Heien v. North Carolina, 135 S. Ct. 530 (2014), held that “reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition.” Heien, 135 S. Ct at 536.

What Happened in Heien?

That case involved a cop …

* Pulling over a car

* With one working taillight

* Car was searched and

* Defendant was convicted of trafficking in cocaine.

That traffic law, however, was also found to be ambiguous.

The Supreme Court specifically found that when a police officer pulls over a car based on an “objectively reasonable, although mistaken, belief” that a traffic law was being violated the fourth amendment is not violated. Id.

The court went on to say that:

“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some, mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’ Id. citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

Reasonable Mistakes of Law

The Court went on to explain that:

*** Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.” Id. at 135 S. Ct. at 536.

The Illinois Supreme Court Follows Suit

Well,

See People v. Geiler, 2015 IL App (5th) 140423 (February). Episode 055 (Duration 14:27)

Pro se defendant files motion to dismiss his speeding ticket based on a violation of Illinois Supreme Court Rule 552. This private citizen uncovered a pattern of chronic rule violations by his local police department. He tried to reveal it to the State’s Attorney’s Office, but they rebuffed him.

So he took it to court and won!

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Facts

Defendant was issued a speeding ticket by the City of Troy in Madison County, Illinois for driving 15 miles per hour over the posted speed limit.

This ticket was filed with the circuit clerk 4 days later. So Defendant files a pro se motion to dismiss based on this violation.

But Dude did his homework, and he knew the law. 

Illinois Supreme Court Rule 552

The Illinois Supreme Court Rules say that police departments should file tickets with 48 hours after a ticket is issued. Specifically, the language of the rule says, in part that: 

“…The arresting officer shall complete the form or ticket and, within 48 hours after the arrest, shall transmit the portions entitled “Complaint” and “Disposition Report” and, where appropriate, “Report of Conviction,” either in person or by mail, to the clerk of the circuit court of the county in which the violation occurred…”

Illinois Supreme Court Rule 552.

How To File A Motion To Dismiss

In A Criminal Case

See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.

But The Case Law Says…

This Defendant knew there was more to the story than just the rule. 

First, the rule exists “to ensure judicial efficiency and uniformity as well as ‘to expedite the handling of traffic cases’”. ¶ 9 citing People v. Hanna, 185 Ill. App. 3d 404, 408 (1989); quoting People v. Roberts, 113 Ill. 4 App. 3d 1046, 1050 (1983).

Second, Illinois Supreme Court rules are never “discretionary”. In other words a rule by the big boys and women is meant to be followed. Lower courts, litigants,

See People v. Olson, 2015 IL App (2d) 140267 (June). Episode 077 (Duration 17:22)

Does every DUI discovery violation result in suppression of evidence? When is it appropriate for a trial judge to exclude field sobriety tests?

 

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The sky has been declared to be falling because of a case where the appellate court reversed the trial court’s suppression of field sobriety tests.

What Happened?

As with many DUI cases, this one began with a traffic stop by a state trooper.

Eventually, the trooper has the driver perform field sobriety tests. The squad car was equipped with a video camera. Although the camera was actually rolling and recording, the Defendant’s performance on the field tests was not captured.

The squad was not positioned so that the officer and Defendant were within the field of view! The officer explained that the location was tricky, and it was just safer to do the tests off camera.

The Law

It turns out, there is this State Police law that says that troopers:

“…shall record activities outside a patrol vehicle whenever (i) an officer assigned a patrol vehicle is conducting an enforcement stop; (ii) patrol vehicle emergency lights are activated or would otherwise be activated if not for the need to conceal the presence of law enforcement; or (iii) an officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose…” 20 ILCS 2610/30(c).

Defense Argument

The defense attorney argued at the trial level that a “discovery violation” has occurred because the trooper had an obligation under the law to record the field tests, yet he failed to do it.

This in turn deprived the defendant of a fair trial because a video of defendant’s performance on the tests would have clearly revealed he was not inebriated.

A Law Without a Remedy

The appellate court looked at the statute mentioned above.

The court noted that the statute did not describe the consequences for non-compliance. In other words, the statute does not say what should happen in cases where the state police do not record a traffic stop.

This is very important.

See People v. Thomas, 2014 IL App (3d) 120676 (October). Episode 043 (Duration 12:04).

Police dog sniff set-up procedures may be ordered by the police. Listen to podcast episode 043 of the Criminal Nuggets Podcast to discover what the heck it means to “prep” a car for a dog sniff.

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Facts

Defendant was a passenger in a car being driven with its bright lights. Unfortunately, for Defendant it was a canine unit that stopped Defendant.

The officer ordered the occupants turn the heat on and roll the windows up while the dog sniffed around the outside of the car. 

The police dog alerted to the presence of drugs in the car. The officer removed the occupants.

“As defendant got out of the car, two prescription Vicodin pills fell off of his coat and onto the ground.” ¶ 5

Defendant put them in his mouth. Another officer then –

 Forced defendant to the ground

* Ordered defendant to open his mouth, and* Choked defendant until he passed out* Defendant awoke the following day in a hospital.

In any event, during a search of the vehicle, officers discovered cocaine between the driver and passenger seats.

Defendant was convicted of possession of a controlled substance.

Police Dog Set-Up Procedure

The police dog sniff set-up procedure was the part where the police officer ordered the car occupants to –

* Turn the car on* Turn Heater on High* Blow Air Through the Vents* Roll Up all the Windows

A car set-up like this if ripe for the sniffing.

Issue

The issue in this case was whether the  dog sniff and the officer’s order to prepare the car for the s...

What Is The Exclusionary Rule?

The exclusionary rule is when a court prevents the prosecution from using any evidence it believes was obtained in violation of the constitution.

The exclusionary rule is the principal judicial remedy courts use to deter Fourth Amendment violations.

When a court applies the exclusionary rule society pays a significant cost.

After all, the exclusion of evidence means:

* Ignoring Reliable Often Trustworthy Evidence* Setting a Criminal Loose Back Into the Community* Interfering With Functions of a Judge or the Jury

Like many things in the law, there is a balancing of competing interests that must be weighed before the exclusionary rule can be applied.

Society Pays A Heavy Price For The Exclusionary Rule

The significant costs of the exclusionary rule have led courts to apply it only where its deterrence benefits outweigh its substantial social costs.

Application of the exclusionary rule must be limited to those “unusual cases” where it can achieve its sole objective of deterring future fourth amendment or constitutional violations.

The Good Faith Exception Says…

Evidence will not be excluded where police acted with an objectively reasonable good-faith belief that their conduct was lawful. This is called the good faith exception to the exclusionary rule.

The idea is that when police act in good faith there is no illicit conduct to deter. Police who relied on binding appellate precedent are not subject to the exclusionary rule.

In Illinois the exclusionary rule and the good faith exception are applied the same way as in the federal system.

Suppression of evidence has always been the last resort, not a court’s first impulse.

See People v. Turner

See People v. Turner, 2018 IL App (1st) 170204 (February). Episode 462 (Duration 9:30) (Good faith exception saves this warrantless blood draw.), quoting Davis v. United States, 564 U.S. 229, 241 (2011).

See Also People v. LeFlore

People v. LeFlore, 2015 IL 116799 (May). Episode 075 (Duration 25:16)

Issue

The issue that the Illinois Supreme Court was reviewing was whether the good-faith exception to the exclusionary rule is applicable under the circumstances of this case?

Facts

Defendant was convicted of aggravated robbery for holding up a gas station with a cane wrapped-up to look like shot-gun.

Procedural History

While this case was pending on appeal, the United States Supreme Court decided United States v. Jones, 132 S. Ct. 945, 948-49 (2012).

This case held that police need a warrant if they are going to use a GPS tracking device on a car. This case was not out when police used a GPS

Search & Seizure Resource Page

To see more

Illinois Search And Seizure Resources and case law go here.

Holding

See People v. Burns, 2015 IL App (4th) 140006 (January). Episode 699 (Duration 11:44)

A police dog sniff of apartment door is going to require a warrant. It turns out there is no open invitation to the public that says they are free to bring their narcotics trained dog named “Hunter” to an apartment building to conduct a forensic investigation in the middle of the night in the hopes of discovering incriminating evidence.

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Facts: Police Dog Sniff of Apartment Door

The police brought their drug dog to Defendant’s apartment building so that the drug dog could sniff the Defendant’s apartment door. The dog alerted to the presence of narcotics. The police and the dog left.

When they came back to search the apartment they had a warrant.

Charge

Defendant was charged with unlawful possession with intent to deliver more than 500 grams but not more than 2,000 grams of cannabis under the Illinois Cannabis Act, 720 ILCS 550/5(e).

Issue

Did the police violate the Fourth Amendment by obtaining a warrantless sniff of Defendant’s front door?

Law

The relevant case is Florida v. Jardines, 133 S. Ct. 1409 (2013). I discuss this case in my “Police Dog Case Law Summary” article. You can find it HERE.

Remember, this is the one where police brought a police dog to the front door of a single family home so the dog could get a sniff.

The United States Supreme Court said that was unconstitutional.

Defendant, in this case argued Jardines is not limited to those individuals who live in a single-family residence, because the opinion did not include this information.

“Because Jardines protects against a warrantless dog sniff of a home’s entrance,

It’s all about the DUI breathalyzer machine and BAC procedures this time. We are back talking with DUI Expert witness William Pelarenos.

He breaks it down and lays it all out for us. You’ll find out what type of breathalyzer William liked best and why.

William Pelarenos

William Pelarenos has nearly 30 years in law enforcement.

He was part of a Cook County Sheriff’s Department unit that focused on DUI enforcement. William was also an Illinois State certified standard field sobriety test instructor. He taught other police how to properly conduct field sobriety tests.

Today, William is a DUI expert witness. He educates attorneys, judges, juries and anyone else who is interested in the complicated subject of modern DUI criminal litigation.

He has also obtained thousands of breathalyzers samples. He was a state certified breathalyzer operator.

William has experience with

* Preliminary Breath Tester (PBTs)* Recording Breath Tester (RBTs) (this one is portable)* ECIR Breathalyzer

William not only does live presentations for the eager to learn, he also wrote a book. “DUIs Decoded” can be found on Amazon.

Types of DUI Breathalyzer Machine

There are three types of DUI breathalyzer machine used by law enforcement. In Podcast Episode 035 of the Criminal Nuggets Podcast, our guest tells us all about the variety of DUI breathalyzer machine.

The PBT

The preliminary breath test breathalyzer (PBT) is typically used before the arrest. It is part of the probable cause that an officer uses to make a formal arrest.

These devices also happen to be extremely portable. They are hand held units often carried in a squad car.

The PBT is non-evidentiary in nature. That just means, that although the measurement from a PBT can be used to establish probable cause for a DUI arrest, the results are not admissible in evidence in the DUI trial of the person arrested.

PBTs are less reliable than the other machine. That is why they are non-evidentiary in nature.

The PBT must be certified every 92 days by the Illinois State Police.

Recording Breath Tester

The recording breath tester (RBT) is also a portable breathalyzer. This machine is larger than the PBT discussed above.

This machine, however, is evidentiary in nature. This means, unlike the the PBT, the recording breath tester will yield a BAC result that can be admitted in court.

The RBT must be certified every 62 days by the Illinois State Police.

The ECIR

This is the standard breathalyzer that we generally are thinking of when we imagine a police breathalyzer.

This unit is generally not portable. It is larger than the other machines described above. It is permanently located in the police station, in or near the lock-up or booking area.

The ECIR is evidentiary in nature.

The ECIR must be certified every 62 days by the Illinois State Police. Improper or non-existent certification may lead to inadmissibility of any BAC results obtained from an incorrectly calibrated or certified machine.

From the Podcast

Check These Quotes from the podcast!

Episode 034 (Duration 17:23). DUI expert witness, William Pelarenos, sat down with me to chat about DUIs.

Any defense attorney who handles DUI cases needs to sit down with an expert. I learned so much in so little time with William. 

Who is William Pelarenos?

William Pelarenos is a retired police officer from the Cook County Sheriff’s Department. He had over 30 years of law enforcement experience. His last assignment was part of a DUI unit that primarily focused on DUI arrests.

William was also an Illinois State certified standard field sobriety test instructor. He taught other police how to properly conduct field sobriety tests.

William has obtained thousands of breathalyzers samples. He was a state certified breathalyzer operator.

William has experience with

* Preliminary Breath Test Tests (PBTs)* Recording Breath Tester (RBTs) (this one is portable)* ECIR Breathalyzer

William’s Book, “DUIs Decoded” can be found on Amazon and Barnes and Noble.

From the Podcast

Click to tweet the following:

 – “I charge you nothing to come to your office and look at the case real briefly.” – “I was teaching police officer classes, when I retired I opened it up to everybody.” – “Everything is based on errors and omissions.”

For Example

In one of William’s last consultations, he didn’t even have to testify as an expert. He was able to help prepare the defense attorney for cross examination of the arresting officer during a motion to suppress.

With William’s guidance, the attorney was able to demonstrate to the court that the results of the field sobriety tests in that case were so unreliable that in essence no probable cause existed for the arrest. Defense counsel one that motion. The case was dismissed. William never had the chance to take the stand as a DUI expert witness.

In other cases, much of the consultation can focus on the errors, omissions or problems with the case. For example –

* Improperly Administered Field Sobriety Tests* Incorrect or Missing FST Directions* Directions Out of Order* Rushed HGN* No FSTs At All

DUI Expert Witness

One of the most important ways a DUI expert witness can be helpful is to provide an opinion to counter the other opinion the judge or jury will hear in the case.

That’s the cop telling the court that in their opinion your client was wasted the night he was arrested.

Sometimes, a DUI expert can sift through case file and formulate an opposite opinion,

Additionally, a DUI expert witness may be able to educate a jury. Lets face it some DUI cases can get complicated and technical. Why wouldn’t you want an experienced expert in your corner helping you explain complicated issues to the jury (and sometimes a judge)?

Guess What? The Cops Making These Arrests Aren’t Experts

One big takeaway I developed after spending some time talking to William was that the very officers making all these DUI arrests, themselve, are not in any meaningful way experts in the DUI field.

 “A DUI investigation is a scientific investigation.” – William Parenos

The season for DUI Checkpoints is approaching fast. Episode 036 (Duration 32:16).

Here we lay out the foundations in the law authorizing DUI checkpoints. Once, this roadmap is established common questions about DUI checkpoints can be answered.

DUI Checkpoint Legal Foundations

People v. Ray

People v. Ray, 327 Ill.App.3d 904, 764 N.E.2d 173 (5th Dist. 2002), citing City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447 (2000).

The defendant in People v. Ray was stopped in a drug interdiction checkpoint.

The law enforcement purpose for the traffic stop was to specifically search for and detect illegal drugs. After police dogs “indicated” (positively sniffed) on Ray’s car, he was further detained. His car was searched. Drugs were discovered.

The court said that the police cannot use a traffic checkpoint for this type of generalized crime control.

Generalized crime control, in this context, was defined as situations that specifically target the drivers. The driver’s themselves were being investigated and scrutinized.

Yes, controlling drugs in society is an important state interest. However, the privacy interests of each individual driver was weighed more heavily. If this kind of traffic checkpoint were allowed, there would be no practical restraint on the police.

Police would be to create any number of traffic roadblocks for any reason. Giving police unfettered control over when and where they could set up roadblocks against individual liberty is itself unreasonable.

Illinois v. Lidster

Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885 (2004).

This case reminds us that not every traffic checkpoint is illegal.

In this case, the United States Supreme Court held that a traffic checkpoint set up to gather information on a homicide was permissible. In this type of a situation, the balancing of the interests falls on the side of law enforcement. The state interest was in seeking information on a death after a hit-and-run that occurred the day before the checkpoint was set up.

Investigating a death is a compelling state interest. The individual privacy interest that was being impeded was weighed as being less significant. This side of the scale was affected by the fact that the drivers, themselves, were not the targets of a criminal investigation.  

The drivers were merely being asked to provide information. This was something they were likely glad to do. It is reasonable to infringe on individual privacy concerns when the police are conducting a separate high level investigation.

People v. Bartley

People v. Bartley, 109 Ill. 2d 273, 486 N.E.2d 880 (1985).

DUI checkpoints combine factors of both permissible and impermissible traffic roadblocks.

In a DUI checkpoint, the driver is the target. The driver is under investigation. The driver is the focus of police scrutiny. Courts have said this a huge factor for illegality.

On the other hand, the State declares their interest as nothing short of saving lives.