Drug-sniffing dogs and traffic stops
The Ohio Supreme Court, in its decision last week in State v. Batchili, framed the issue as being "whether the Fourth Amendment is violated when a police officer conducting a traffic stop calls for a canine 'walk around' while waiting for the results of a criminal background check." The answer was as predictable as it was regrettable.
The facts in the case are, for traffic stops any more, typical: a State Highway Patrol officer was stopped on the side of the road on an interstate when she observed Batchili drive by. Although he wasn't violating any traffic laws, she decided to follow him, saw him commit a marked-lanes violation, and stopped him. Because Batchili "gave conflicting answers as to who owned the vehicle, did not make regular eye contact, and had shaking hands," and because the officer smelled deodorizer in the vehicle, she called for backup, and a drug-sniffing dog. The cop and dog arrived, and the dog alerted at the vehicle. This served as the basis for a search, which discovered numerous boot-leg DVD's and videos, but no drugs. The 6th District tossed the search, finding that the state failed to show "specific and articulable facts giving rise to a reasonable suspicion of criminal activity beyond that which prompted the stop."
The Supreme Court reversed, and was unusually caustic in its tone toward the appellate court. The law here is basically that a police officer can't prolong a normal traffic stop in order to allow another officer to bring a dog to the scene. The Court found that the 6th District was off-base in three respects. First, there was no indication that the stop was prolonged: the dog alerted less than nine minutes into the stop, while the first officer was still waiting for the results of the computer check. Second, even if the officer had prolonged the stop, she could do so if circumstances after the stop gave her reasonable suspicion for doing so. Here, the Court held that the 6th District had erred by using a "divide and conquer" approach to the officer's suspicions, examining them individually instead of in combination, as required by a "totality of the circumstances" approach. Finally, the Court held that the 6th District erred in attaching any importance to the fact that the defendant hadn't been given a traffic citation for the marked-lanes violation; given the officers' discovery of a felony, the violation became insignificant.
As I said, the circumstances appear typical, until you read Justice Pfeiffer's dissent, where you learn that the officer caught up to the defendant, who was was driving at the speed limit, within a couple of miles, which required her to drive at a speed of 100 to 120 mph, and that the basis for the stop was that she observed the driver, on a single occasion, "drift over the dotted center line by approximately the width of the driver's side tires." As Pfeiffer points out, driving at three-digit speed on the interstate might present a bit more of a threat to the public safety than a slight drifting over the center line.
Pfeiffer's chief complaint is that the stop was pretextual, and of course it was. And, of course, it doesn't matter: back in 1996, in Dayton v. Erickson, the Court held that a police officer could validly stop a vehicle for a traffic violation, even if the stop was really motivated by a belief that the defendant was engaged in more nefarious activity.
The problem is that any officer who can't find a traffic violation within a mile after starting to follow someone needs to find another line of work. As Pfeiffer pointed out in his dissent in Dayton,
You drive by a policeman, and for some reason, he doesn't much like the looks of you. Maybe your car is shabby; maybe you are. Maybe you are out late in a high-crime neighborhood. Maybe you are in a low-crime area, but you are part of a high-crime demographic group. The reason does not much matter -- to him you are a suspicious character, that's all. The policeman pulls up behind you. You will make a mistake. You say you did use your turn signal to change lanes? He didn't see it. Or, prove to him that you did not exceed the speed limit by one mile per hour when you were busy looking at him in your rear-view mirror. You'll never be charged with the violations -- you're just being stopped and detained to see if his hunch about you was right.
Pfieffer was right then, and he's right now. Sadly, he was also right back then when he said,
While it is always a criminal defendant seeking the Fourth Amendment's protection, ultimately Fourth Amendment jurisprudence protects us all from unreasonable intrusions on our liberty. It was not a criminal who lost in this case today -- all of us who value our freedom did.
He could have said the same thing last Wednesday.
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