Ok, I am done. lol

We have "bent" the fourth amendment so far in the name of both the "war on drugs" and the "war on terror" that not much of it remains.

while I can concede that searching for bombs might be so much in the public interest of saving lives that a bit of leeway should by granted, but I can find no such justification to search for drugs. As the Patriot Act has proven, once you give police broad sweeping powers, they are not only going to use them, but they are going to push the envelope and ask for even more power until the bill of rights is a distant memory. At some point, someone has to say ENOUGH!!!

At least the SCOTUS Justices appear to be thinking this time and I particularly like Sotomayor's question/comments about the SCOTUS passion for bending the 4th Amendment to suit LE wishes.  Ever since the SCOTUS proclaimed that it wasn't a "search" to have a dog sniff around a vehicle, LE has increasingly called upon K9s during routine traffic stops to establish probable cause to allow a search of your vehicle.  The crux of this case is how long can LE reasonably hold a citizen for a routine stop in order to get a K9 to site to perform the sniff.  You guys can read the article, but I have several problems with the standard that the SCOTUS allowed.

1.  The dog sniff is generally not germane to the to the stop in many cases.  Its just another way for police to try to identify potential criminals.  Why should someone be stopped for a traffic violation no be subjected to a dog sniff.  There is no legitimate reason for it, no reasonable or articulable suspicion for the additional search.  In fact, dogs are often called when citizens invoke their right not to have vehicles searched.  Remember, according to law, refusal to allow a search is not a basis to generate probable cause.

2.  Its widely reported that dogs regularly false hit.  In fact, the false hit rate can exceed 80%.  They cannot determine if there is actual drugs in a vehicle or when a drug may have been in a vehicle. Dog handlers themselves often cause the dog to hit, because LE really wants to search your vehicle.  There are no uniform training standards for dogs or trainers.  See the following link: http://www.reviewjournal.com/news/crime-courts/legal-challenge-questions-reliability-police-dogs

3.  Its also widely reported that 80% or greater of the US currency is contaminated with drug residue. Combine that with the fact that many states have either allow or legalized medical/recreational marijuana as well as decriminalized small amounts, the likelihood that we are going to be exposed to some sort of contaminate has grown exponentially.  Now in theory, the dog sniff is not supposed to be the sole determinant of probable cause but also the totality of the situation.  But we all know how police will say anything to further establishment probable cause.  So in practice, use of the dog is enough to generate probable cause.  In fact, the drug legalization push has force LE in some states to abandon the use of dogs trained in the smell of marijuana. See the following link: https://en.wikipedia.org/wiki/Contaminated_currency

4.  Use of dog sniffs is used extensively as a tool to justify civil forfeiture.   There have been many article dictation how police utilize traffic stops in order to rob citizens on our nations highways.

Bottom line is that if the traffic stop is germane to a legitimate drug investigation, I have no problem with the use of a dog. Otherwise, there is no reason to detain a citizen any longer than it takes to issue a traffic violation....period.

Here are some of her comments and I agree with them completely:

"I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs using dogs, whenever anybody's stopped. Because that's what you're proposing. And is that really what the Fourth Amendment should permit?

    ...we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not—is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.

or in Texas for example, pulled over simply for looking Mexican in a rented car?

Simply by being brown of skin. Many police officers consider that enough probable cause to ask for a search. Since when is exercising your constitutional rights "acting suspicious"???

I guarantee you, If I am pulled over and the cop asks to search my car, I will absolutely 100% refuse, and the very first thing I would do is to call my attorney to make sure my rights were not trampled, but that is just me. Not every one has the luxury of having a lawyer on retainer "just in case" and the only reason I have one is for business purposes. Are you seriously suggesting that it should be legal to detain every Mexican, or Mexican looking person for 7-8 minutes just because Mari believes that 90% of the time the cop was justified?

for speeding, and their trunk just happens to be packed with explosives, the police shouldn’t be allowed to use their bomb sniffing dog? Or say wait  7 to 8  minutes until Fido gets here?

       I’d say your post should go to the dogs, DA,  bc you left out the key reason WHY dog sniffs are not a Fourth Amendment search.

        Outside of the home, the Fourth Amendment protects only a person’s legitimate interests in privacy.
You have NO legitimate  privacy interest if you hide illegal drugs –or bombs- in your car. Exterior detection which can ONLY  detect your illegal stuff does not violate the Fourth Amendment.

        A dog sniff of your car can ONLY detect illegal drugs, or bombs if he is that type of dog. That is the key distinction explaining why the use of a thermal imaging machine or drone camera  IS an illegal search – it can detect perfectly legal stuff in your house like your pornography collection that you reasonably would wish to keep private as well as illegal drugs.

       A dog sniff is not a Fourth Amendment search – the dog can only detect illegal stuff.  

        The police use dog sniffs in an extraordinary small amount of traffic stops. And I’d guess in 90% of the cases, they have a reasonable suspicion that they are dealing with bad guys. Sure there has to be a limit on how long they can make the driver wait, but here it was 7 to 8 minutes and after the guy refused to consent to a dog sniff, the officer became suspicious.

       With the prospects of terrorist attacks in our country  increasing everyday, this is hardly the time to restrict reasonable , non-intrusive police efforts designed to protect us all. Does requiring a motorist to wait 7 or 8 minutes  for the dog really out balance the incredible risk of terrorism

...K9s as tools like a breathalyzer or radar gun, but when a K9 is killed, cops mourn them as if they were sworn officers.

At least a breathalyzer or radar gun results can be challenged (repair history, calibration), unlike a dog's nose.  You can ask for a dog's history of "hits and misses" but there are too many variables to be of much use.

Then, you should really get your head examined.

May you should get your head examined any how because the scenario you describe doesn't happen in the real world.

Police can not pull people over based on skin tone, it's not PC.

In your example, if you are the cop that pulls them over,  what is the reason  you would even call the K-9 unit to come to the scene? It sounds like you are simply saying it is because they are Arab looking men.  

What would be the reason for the detainment?

It would be one thing if it was a dog sniff unit pulled them over and the dog reacted to explosives...but what legal reason would the cop give the men to stay put?

Police often do this during a drug investigation.

I would assume there is no reason needed for the detainment. Provided the traffic stop is legal, back up is called for(k-9 requested) and the driver is not detained, but simply stopped on the shoulder of the road

following a legitimate traffic stop.

        As long as they conduct the sniff without unnecessarily prolonging the stop, the sniff is lawful.
Because most traffic cops don’t carry dogs in the car, I tend to think that the only time they would ever conduct a sniff would be if they had some basis to be suspicious.

         The terrorist example given was only to show the worst case consequence of the rule proposed by DA, and the absurdity of limiting the police in this fashion. I did not mean to suggest that they would engage in blatant profiling, although I personally have no problem with profiling for a dog sniff in this age of horrific terrorist activities.

         More likely, the reason for conducting a dog sniff would be the reason for the sniff in the case before the Supreme Court – the officer asked the driver “do you mind if my dog sniffs your car?” The guy said “no, you can't do it. This made the officer suspicious and, once back up arrived, he conducted the sniff 7 to 8 minutes after writing the ticket.  

      The Supreme Court will decide if this was too long to hold up the drug dealing driver.


-- Modified on 1/22/2015 1:52:18 PM

You are basically saying someone can't turn down a sniff request.  

If they turn it down, they say it's suspicious, then they sniff.

If they say yes, obviously they sniff (or at least have permission to).

But in either case, a sniff can take place regardless of the response.

How is that not a breach of the 4th amendment?

It sounds like no matter answer is given, the accused gets fooked.

Standing ovation! You hit the nail solidly on the head!

Why don't we just throw out the entire bill of rights while we are at it?

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Even in MM friendly California an officer might sometimes confiscate the piddling amount of weed as well as further harass despite a production of one's "Doctor's prescription".

 Should the citizenry be under such broad legal interpretation(s) as to allow extraordinary police efforts to detect the most benign substances and amounts? And if so for who's protection and profit?

 
     

I've provided more than enough information to support my opinion.  I see no valid reason, particularly during a minor traffic violation, for a a police officer to detain a citizen so that he can bring a K9 on site.  In this case the officer had a canine and called for backup.  As far as I'm concerned, this is an infringement and should not be permitted.  You know that an officer can search your vehicle if they have probable cause, so in effect, they are holding you unnecessarily in order to generate probable cause.  Something seems wrong with this picture.  We have a right to remain silent, we have a right to refuse searches and you know that by exercising our rights, is not supposed to generate suspicion.  It think it's more critical today than ever in light of the faux "Wars on Terror and Drugs", policing for profit and other potential abuses face when they encounter LE.  

Argument analysis: What exactly is a “routine” traffic stop, and should a suspicionless dog sniff be part of it?

“License, registration, and dog sniff, please?” After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal government’s position in Rodriguez v. United States would “lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want.” Assistant to the Solicitor General Ginger Anders responded that “I don’t think that’s how we envision” things, but she then suggested that only the “duration of a routine traffic stop … under the circumstances” defines the Fourth Amendment’s “reasonable” limit. This did not answer the question that Justice Anthony Kennedy asked early on: “how do you define the traffic stop?” But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguez’s attorney, Shannon O’Connor – the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguez’s car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower court’s finding that there was no “reasonable suspicion” for the dog-sniff detention, but it ruled that a “de minimis” delay to conduct a dog sniff is okay. Since the Court’s 2005 ruling in Caballes that a dog sniff conducted “simultaneously” with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesday’s argument. First, a dog sniff of a car stopped for a traffic violation is “extraneous” to the purpose of – that is, not an “ordinary incident of” — a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the “mission” of the traffic stop have been routinely upheld, starting with the standard opening “license and registration, please” and extending, as in Rodriguez’s case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions “part of the mission and the dog sniff is not?” But Anders wisely conceded that she was not arguing that a dog sniff should be considered an “ordinary incident” of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Court’s 2000 decision ruling that routine “drug checkpoints” employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during O’Connor’s argument(to “laughter”) that “people have told me” what happens “when you’re stopped.”  Justice Sonia Sotomayor later began Ander’s argument by saying “and Chief, I’ve been stopped,” to which Anders quickly responded, “so have I.” The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, “our experience on stops comes from, unfortunately, being the stoppee.”)

A second point that appears clear from yesterday’s argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment “search.” Justice Sotomayor appeared to raise this “fundamental question” briefly – “is that really what the Fourth Amendment should permit?” – but then quickly suggested that the Court should “cabin” it to Caballes’s “simultaneous with writing the ticket” holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of “search” that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices – the Chief Justice and Justices Scalia Kagan in particular — appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing “that Caballes gives you … extra leeway to detain people …. I think that’s just not right.” Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether “[i]t’s only a violation of the Fourth Amendment for two minutes, right?” And Justice Scalia later interjected, apparently along the same rhetorical line, “it can prolong it a little bit.”

At one point, Justice Breyer began a question for Anders with the announcement that “I have a great idea.” Reading this, I initially imagined everyone was groaning – but then Justice Breyer’s idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop “cannot last longer than is necessary to effectuate the purpose of the stop,” or that a stop cannot be “unnecessarily prolonged.” He explained that these were not new ideas – “what an original idea I had,” he noted with irony – and that “after we cite these two cases …, [we] reverse. …QED, goodbye.” And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although O’Connor urged the Court to decide that question itself “for judicial economy,” no Justice seemed likely to agree.

One final point, about Terry v. Ohio

One last point about this argument. It seemed surprising that no one mentioned the Court’s leading decision on “reasonable suspicion,” Terry v. Ohio, because it is that decision which first allowed a “stop” – a Fourth Amendment “seizure” or detention – on suspicion less than the Fourth Amendment’s textual hook “probable cause.”   When allowing this in 1968, the Terry Court plainly thought it was a major extension of precedent to approve even brief detentions on less than probable cause, and the opinion seemed to tie the constitutionality of even a brief stop closely to the suspicion that led to it. So here, in a case premised on no reasonable suspicion of narcotics, approving a prolonged detention of any length for a narcotics dog sniff seems, as Justice Kagan suggested, “just not right” under Terry. And somewhat revealingly, it was at this moment that Anders found it necessary to remind the Court that it has already ruled that “a dog sniff is …. not a search.” One wonders whether the Justices, and their younger law clerks, will now go back to re-read Terry and recall just how radical even a “reasonable suspicion stop” appeared to the criminal procedure world in 1968.

traffic violation. Your car contains contraband that emits an odor outside of your car and onto public property. Neither the dog nor the officer penetrates or even touches your car. And the only thing the dog can smell is illegal stuff.

      How is that a Fourth Amendment search at all is the question you should be asking.
But if you want the technical legal response, here is what the S. Ct says:

Official conduct that does not "compromise any legitimate
interest in privacy" is not a search subject to the
Fourth Amendment. …We have held
that any interest in possessing contraband cannot be deemed
"legitimate," and thus, governmental conduct that only
reveals the possession of contraband "compromises no legitimate
privacy interest." Ibid. This is because the expectation
"that certain facts will not come to the attention of the
authorities" is not the same as an interest in "privacy that
society is prepared to consider reasonable." Id., at
122 (punctuation omitted).

        I don’t particularly care about drugs but if you bar drug dogs, you also have to bar dogs who can sniff bomb material. Or using Geiger counters during terror alerts where we believe terrorists have a dirty bomb. So the inconvenience to the honest driver by a search that never enters his space  is greatly outweighed by the risk to society

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Highways are there for public use but I don't think they are public property. Most highways are state property. Just like many airports are owned by the state, and airports are not public property.

I don't think the 4th Amendment would apply to citizens and their property while operating on an American interstate.  

Who owns it?

The States own and operate the Interstate highways.  
The one exception is the Woodrow Wilson Memorial Bridge (I-95/495) over the Potomac River in the Washington area.  The U.S. Bureau of Public Roads built the bridge under special legislation approved by President Dwight D. Eisenhower in August 1954.  Although the District of Columbia, Maryland, and Virginia operate the bridge, it is owned by the Federal Highway Administration.  When the first span of the replacement bridge, now under construction, is opened, the old bridge will be removed.  The States will own the new Woodrow Wilson Memorial Bridge

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Citizens have no expectations of privacy while operating a motor vehicle on the interstate

I know exactly what planet we're living and exactly what the dangers are, so excuse me when I don't shit my pants whenever something bad happens in the world or on our shores.  However, you and many others,  fail to recognize that whenever our government declares a war on what ever euphemism you want to use, we declare war on ourselves.   We have created the Patriot Act which has now been abused to collect our phone metadata without warrant; given the government to issue National Security Letters in order to collect information about a citizen without warrant or notification that a person is under investigation; practically criminalized the possession of cash while driving on our highways; try taking a picture of a government building in public today and see if you're not surrounded by police asking for your papers; created over 150 interior border control checkpoints where you have to assert your citizenship and BTW, be subject to search.  So what I see, is the steady erosion of our rights as citizens just because our politicians exploit our fears in order to get laws passed to give the government more power to intrude into our lives. To me, that is more dangerous than the terrorist threat.