Drug Dog Sniffs During Traffic Stops and Other Circumstances In New Jersey
The use of drug sniffing dogs may be a topic of consideration if you or someone you know has been charged with possession of a controlled substance. If your case involves drug sniffing dogs then you may ask the question: “Is a drug dog sniff a search?” Or “When is it illegal to conduct a dog sniff for narcotics?” Determining the legality of a dog sniff for narcotics depends on the circumstances of the case.
Whether a drug dog sniff is considered legal depends on (1) whether it constitutes a search in the meaning of the Fourth Amendment to the United States Constitution or Article 1 paragraph 7 of the New Jersey Constitution and (2) was the dog sniff reasonable?
In the case of Jones v. Latexo Indep. School Dist., 499 F. Supp. 223, (E.D. Tex. 1980) a dog sniff of a person was found to constitute a search because the dogs inspection was equivalent to a physical entry into the students pockets. Also, the dog slobbered on the students, which was seen to be particularly offensive and frightening to children, therefore the degree of intrusion was significant. Though, in Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), aff'd per curiam, 631 F.2d 91 (7th Cir. 1980), cert. den., 451 U.S. 1022 (1981), the Seventh Circuit court upheld a dragnet dog-sniff of students as not to constitute a Fourth Amendment search. Yet, it is important to note that in the case of Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982), cert. den. 463 U.S. 1207 (1983), the Fifth Circuit established a difference between dogs sniffing the students themselves as opposed to the sniffing of lockers and automobiles. In that case, the court held that “the dogs’ sniffing of student lockers in public hallways and automobiles parked on public parking lots” did not constitute a search under the Fourth Amendment.
Although, outside of a public-school context, an "alert" by a drug sniffing dog during a traffic stop may provide probable cause to search depending on the totality of the circumstances involved. See Florida v. Harris, U.S., 185 L. Ed. 2d 61 (2013). Normally, a momentary examination of an item belonging to someone else is not considered a seizure. See Arizona v. Hicks, 480 U.S. 321, 324 (1987). In situations where a dog sniff is seen to be minimally intrusive then it is normally considered not to be a search. For example, in the case of United States v. Place, 462 U.S. 696, 707-710 (1983), the Court concluded that simply allowing a narcotics dog access to luggage in a public place is not a search or a seizure. Though the Court specified that holding luggage for an extended period of time to facilitate a dog sniff of the items would constitute a seizure. The key difference is the length of time and whether the dog sniff was minimally intrusive or if the intrusion was significant.
In State v. Cancel, 256 N.J. Super. 430, 435-437 (App. Div. 1992), certif. den. 134 N.J. 484 (1993), an airline passenger's claim that she and her luggage had been seized for constitutional purposes by a dog sniff was rejected, because there was no delay in processing the luggage to allow the dog to work. In Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 847 (2005), where a car was lawfully stopped for speeding, the use of a drug sniffing dog around the exterior of the car was not found to be a seizure when it was of short duration and did not unreasonably prolong the stop.
Yet, in cases where the vehicle stop is excessively prolonged by the use of a drug sniffing dog, then the use of the dog may possibly be found to be an illegal search and seizure. For example, in the case of Rodriguez v. United States, U.S. , 191 L. Ed. 2d 492 (2015), after a traffic stop was completed and a ticket was issued, the continued detention to allow for a dog sniff constituted an illegal seizure when there was no basis for reasonable suspicion for the drug sniff. Also in State v. Dickey, 152 N.J. 468, 479 (1998), it was found to be unreasonable to detain a vehicle and its occupants for three and a half hours at a State Police barracks while waiting for a K-9 team to sniff the vehicle's trunk.
In the recent case of State v. Dunbar (077839) decided on July 10, 2017, the New Jersey Supreme Court adopted the Federal standard and ruled that, in New Jersey, police officers do not require reasonable suspicion of a drug offense to conduct a canine sniff during a motor vehicle stop, provided that the canine sniff does not prolong the stop beyond the time necessary to complete the stop’s mission. New Jersey, in effect, now adopts the federal standard barring unnecessary delays for the purpose of drug dog sniffs. Prior to State v. Dunbar (2017) State law required reasonable suspicion for the use of drug sniffing dogs. See State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007), aff'd as mod. 199 N.J. 407 (2009), and State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), rev'd. on other grds., 192 N.J. 224 (2007). Going forward, New Jersey police no longer need reasonable suspicion of a drug offense during a traffic stop, so long as the duration of the stop does not exceed the time necessary to effect its mission.
Therefore, if you have a traffic stop case involving a drug sniffing dog and the traffic stop was un-necessarily delayed due to the dog’s use, then any contraband found may possibly be subject to fruit of the poisonous tree and be inadmissible as evidence in court. These determinations, however, are highly dependent on the totality of the circumstances of each individual case. For a proper evaluation of this issue it is important to contact an experienced attorney to review the circumstances of your case.