What are your rights with respect to canine searches of your car?

One minute you are driving down the road without a care in the world, and the next minute you have been pulled over for a broken tail light.  Well, if the police officers have a drug dog with them, the next minute they could be tearing your car up while you wait on the side of the road.   Doesn’t sound like too much fun, especially if there are people you know driving by.

Even for people who know their rights, the laws on drug dog searches can get a little tricky.  When I think about drug dog searches, I think of the song “99 Problems” by Jay-Z describing an incident in 1994 when he was pulled over for speeding when he had drugs in his trunk.  The police ask Jay-Z to consent to a search of his car.

“Well, do you mind if I look round the car a little bit?”
Well my glove compartment is locked so are the trunk in the back
And I know my rights so you’re going to need a warrant for that
“Aren’t you sharp as a tack, you some type of lawyer or something’?”
….
Nah, I ain’t pass the bar but i know a little bit
Enough that you won’t illegally search my shit
“We’ll see how smart you are when the K9 come”

I got 99 problems….

What stumped Jay-Z is that he didn’t know his rights on the subject of a canine search, and this became one of his “problems.”    O.k. so here is how canine searches work.  First the bad news, and then the good news.

The bad news is that generally, a canine sniffing the outside of your car is NOT a search.  The U.S. Supreme Court reasons that the little molecules of marijuana (or whatever) that are wafting away from your car are in the public space, and the police are free to have their dogs everywhere the police are free to be.  It used to be that the police needed an “articulable suspicion” in order to bring their canine up to your car.  This was the rule in New York State in 1994 when Jay-Z was stopped.  However, in 2005, in Illinois v. Cabelles, the U.S. Supreme Court ruled that the police needed no such articulable suspicion to bring a police dog up to your car at a traffic stop.  So if the police officer is writing you a ticket for broken tail light, he or she can have the drug dog right up beside the car (but not inside).  If the dog indicates that it smells drugs, the police may then search your vehicle.

The good news is that there are ways to fight drug dog searches.  While the law does allow a canine to accompany an officer on a routine traffic stop, the officer is not allowed to delay the traffic stop unnecessarily while the dog searches.  In many rural areas such as Lincoln County, Grant County, or Okanogan County, the delay in a drug dog arriving can be substantial.  In urban areas such as Spokane, the dog can arrive in a matter of minutes.  If your ticket has been written, the officer cannot require you to keep your vehicle on the side of the road while they wait for the dog to arrive without just cause.  Additionally, it does not seem permissible for the officer to put the writing of the infraction “on hold” while a canine search is done.   For an officer working alone, this may pose a problem.   Also, it may be that the Washington State Supreme Court might rule differently than the U.S. Supreme Court.  The Caballes issue has never been squarely before our Washington supreme court, and are justices in Washington could construe the right of privacy in our state constitution more broadly.

How to Challenge a Drug Dog Case

Training a dog to recognize the smell of marijuana or other drugs is relatively easy.  One simple way is to stuff a toy with the substance and to use the dog’s “fetch instincts” to learn how to find the toy.  However, to have a judge accept the dog as reliable in court is very difficult.  Dog handlers have extensive training for their dogs and must keep extensive records.  If the dog “alerted” to a car, and no drugs were found, the dog handler will record this error.  Because of the prevalence of cocaine and marijuana in our society, trace amounts of these drugs can be found all over, particularly on paper currency.  It is not unusual for a drug dog to “alert” on a car only to find money.  Some studies, such as one cited in the Cabelles case, show that dogs in artificial testing situations return false positives anywhere from 12 to 60% of the time, depending on the length of the search.  In my practice as a criminal defense lawyer, I often use the publication A Guide To Canine Interdiction as a reference.  This DEA manual recommends that the canine and the handler both be trained at the same time, and that the two be paired for life.   The dog should be certified by an independent agency with no financial stake in the outcome.   The manual recommends that every use of the dog to screen luggage, vehicles or houses be documented.  Courts generally require that all these records be turned over to the criminal defense lawyer if he or she makes the request.

Hiding the Odor of Marijuana

It is next to impossible to hide the odor of marijuana or other drugs.  People have sealed marijuana in ziplock bags, inside tupperware, inside coffee grounds, and wrapped it with animal fat, and the canines have still detected the drug.  People have also attempted to hide the drugs by submerging them in a fuel tank.

For more information on marijuana laws in Washington State, see here.

What do you think?  Should the police be able to approach your vehicle at a traffic stop with a drug dog?  What are some of the ways you have heard that people attempt to hide the odor of drugs?  Are drug dogs sufficiently reliable to justify searches of our personal belongings?

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