Are the Sniffs Up to Snuff?

Have you or anyone you know ever been the subject of a police K9 drug search as a result of a traffic stop or otherwise?  Have you ever wondered whether a police drug dog can actually detect the presence of drugs on a person, in a car, or in a home?  Ever wondered if the police were able to manipulate their drug dogs to "alert"when no drugs are present so the officer has probable cause to search your vehicle or your home?  Skepticism has been on the rise lately concerning the credentials of police drug dogs and their handlers' abilities to effectively detect the presence of narcotics and provide the police with the ability to conduct a search of the person, their vehicle, or their home.

Since the U.S Supreme Court's decision in Illinois v. Caballes, allowing a dog to sniff the exterior of a car stopped for a traffic violation, and United States v. Place, allowing for a dog sniff of a person's luggage, drug dogs have become an integral part of state and federal law enforcement agencies war on drugs. The Court's pronouncement in Caballes allowed officers to use K9s to conduct an exterior "sniff" of a stopped car for the presence of narcotics and if the dog "alerted" to the presence of narcotics then the officer would be allowed to search the car without impinging on the motorists' rights under the Fourth Amendment of the United States Constitution. Although profound, the Court's decision was not without limitations, and cautioned that the stop of the motorist could not be unnecessarily prolonged by the police to effectuate the sniff of the automobile.

Much litigation has ensured following the wake of the U.S. Supreme Court's decisions in Caballes and Place with recent opinions from the Florida Supreme Court paving the way for yet another visit by the U.S. Supreme Court concerning these issues.  This time the United States Supreme Court will be deciding what evidence if any the Government must produce to establish that a dog's ability to credibly and reliably detect the presence of narcotics is required to be shown by the Government in order establish probable cause and uphold searching a vehicle based upon a positive alert by that dog.   In State v. Harris, the Florida Supreme Court held that "evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause [to search]."  The court's concern in Harris was that the dog could only detect the odor of narcotics and not the presence of narcotics which is an important distinction given that the odor of narcotics is easily transferable and readily present in many different everyday situations.  The Court also recognized the lack of documentation for false positive alerts attributed to the dog thus undermining the dog and the handler's credibility and reliability.  Particularly puzzling to the Florida Supreme Court, was the officer's testimony that the dog performed satisfactorily 100% of the time but could not explain why satisfactory performance of the dog included alerts where drugs were not found.

In the companion Florida Supreme Court case of Jardines v. State of Florida, the court addressed whether (1) a "sniff test" by a drug dog conducted at the front door of a private residence was a search within the meaning of the Fourth Amendment and if so (2) whether the showing of wrongdoing by the state prior to the sniff requires probable cause or reasonable suspicion.  In addressing these two issues, the Florida Supreme Court determined that the sniff was a search within the meaning of the Fourth Amendment and that the State must establish probable cause evidence prior to completing the dog sniff at a private residence.  The United States Supreme Court has also agreed to review this decision on these two issues as well as those present in Harris and only time will tell what the outcome will be.

 In the meantime, the credibility and reliability of drug dogs and their handlers should be attacked on several fronts by anyone facing criminal charges as a result of a drug dog sniff.  First, it must be pointed out to the court that the dog is detecting an odor of narcotics and not the presence of narcotics.  This is important considering that the transfer of the odor of narcotics from person to person and object to person is commonplace.  Second, the credentials of both the dog and the handler should be questioned in order to ensure proper training and documentation of that training including documentation of all "false positive alerts" by the K9.  It is important to remember that a dog may "alert" to drugs when in fact the dog may simply want a treat given that the dog is trained with treats for all positive alerts.  Last, and probably most importantly, one should question whether the dog was conditioned to alert upon a conscious or subconscious action from the handler. 

In the event that you still question the reliability of a drug dog to detect the presence of narcotics and more importantly the dog handler's credibility to influence that dog to falsely alert to the presence of drugs, take a few minutes to watch this video by clicking HERE.

7 Most Common, Easily Avoidable, Reasons for Law Enforcement to Pull Someone Over

Police Officers only need probable cause for even the most minor of traffic infractions in order to legally pull a vehicle over.  Here is a list of the 7 most common and easily avoidable excuses that law enforcement officers use in Iowa to "justify" pulling a vehicle over.

1.     License Plate Frame:  If ANY letter or number on the license is obscured by a license plate frame, it is an arguable traffic violation.  Take the frames off!

2.    Registration Sticker:  There should only be ONE registration sticker visible on a license plate (the most current).  It must be placed in the bottom left hand corner and must be clearly visible.  If you have multiple registrations stickers visible, take them off!

3.    License Plate Cover:  Iowa law prohibits license plate covers that make a license plate difficult to read.  While they may save you a picture-ticket, law enforcement is known to claim that they obscure visibility of the license plate, especially at night, do to the glare.  If it gets to a hearing it’s the officers words vs. yours and we all know how that turns out.  Take them off!

4.    Non-Functioning Lights:  All lights originally manufactured on a vehicle must be in proper working order.  The most common light to go out that people don’t realize is the license plate light.  Check all lights and signals frequently and make sure they are in proper working order.

5.    Dirty License Plate:  Iowa law requires license plates to be free of dirt and debris and clearly legible.  Gravel travel recently?  Take a little extra time to clean your license plate off and avoid an unpleasant interaction with local law enforcement.

6.    Obstructed View:  Iowa State Patrol Officers are notorious for stopping vehicles with items hanging from their rear-view mirrors claiming that it “obstructs the view” of the road.  While each case is factually dependent, and often times these stops are a mere pretext and can be challenged, do you really need to dangle your rosary from the rear-view mirror or is there another place it can be safely displayed?  Sometimes it’s better safe than sorry.

7.  No Front License Plate:  Iowa law requires a front license plate to be affixed to all vehicles licensed in this state.  There in no exception for your Corvette or other vehicle that you just don't want to put one on because it ruins the look.  Order the bracket and put your front plate on.

 

A quick walk around of your vehicle might easily prevent an unpleasant meeting with "Iowa's Finest" in the near future.  Know your rights; Exercise your rights; Preserve your freedom!

Smell of Marijuana and Probable Cause

It is not uncommon for police officers to claim that they "immediately detected a strong odor of marijuana" coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is "yes but ..."

According to the Iowa Supreme Court's recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met. First, the State is required to establish that the odor is sufficiently distinctive to identify a forbidden substance and second, the they must establish the training and qualifications supporting the officer's conclusion that the odor was indeed marijuana. In other words, they have to prove that the officer has sufficient training and knowledge to allow him to accurately and reliably detect and identify the odor as being from marijuana. Establishing prior experience in narcotics enforcement investigations is ordinarily sufficient.

These requirement are based upon the United States Supreme Court's decision from 1948 in Johnson v. United States where the Court stated: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to known the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Johnson v. United States, 333 U.S. 10, 13 (1948). The Iowa Supreme Court has followed that reasoning and in State v. Watts, reconfirmed those requirements.

If the State can establish the required foundation pertaining to the odor of marijuana, probable cause is shown to exist. The next question then becomes was a warrant obtained or was the search conducted without a warrant. If a search warrant was obtained, the application for the search warrant must contain sworn information regarding the officers qualification and experience in detecting the odor or the search warrant will not be valid. The prosecution is not allowed to add to the warrant application or present additional evidence that is not contained in the warrant application once the warrant is approved. What's written in the application at the time it is submitted to the judge or magistrate will determine whether or not probable cause has been established.

If the officers proceed to search without a warrant, they must be able to prove that an exception to the search warrant requirement existed. The most common exceptions are: 1) exigent (emergency) circumstances, such as the immediate threat of evidence destruction; 2) consent; 3) search incident to arrest; or 4) plain view. In most cases law enforcement will attempt to rely upon either emergency circumstances or consent. Remember, a person is NEVER required to consent to a search of their person or property. For more information on your rights pertaining to searches, click here.

Emergency circumstances automatically exist when the smell is coming from a vehicle. Right or wrong, the Supreme Court has held that the inherent mobility of a vehicle creates the danger that the evidence will be destroyed or otherwise dissapear if the vehicle is not searched. For apartments, houses or other residences, the State must establish particular facts that reasonably lead them to conclude evidence is in imminent danger of being destroyed before they may proceed to enter a house without a search warrant. In Watts, the prosecution attempted to argue that the officer was justified in entering the apartment without a warrant "because he didn't know if there were any other individuals inside the residence" that could attempt to destroy evidence. The Iowa Supreme Court said that it is not enough "not to know." Rather, there must be specific information that reasonably leads the officers to believe there are individuals inside the residence that pose an immediate threat of destroying the evidence. Hearing movement and scurrying around within the residence may be sufficient to meet that burden.

In conclusion, the smell of marijuana detected by a trained and qualified individual who is shown to be familiar with the odor, can create probable cause to search. However, it is important to ensure that the proper foundation for that evidence is established. It is equally important to ensure that those facts are sufficiently set forth in the search warrant application or if no search warrant was obtained, that the State can meet its burden of proving that an exception to the warrant requirement existed at the time of the search. It is the seemingly little details that can make a huge difference in search and seizure cases.

KNOW YOUR RIGHTS, EXERCISE YOUR RIGHTS, PRESERVE YOUR FREEDOM.

Warrant? We don't need no stinking warrant!

Whatever happened to the idea that a warrant is required except for in few jealously guarded and carefully drawn exceptions where the delay necessary to obtain a warrant is outweighed by the compelling necessity for immediate action?!


It has long been recognized that the purpose behind the 4th Amendment's warrant requirement is to ensure that when time permits, law enforcement must present evidence that they believe creates probable cause to a neutral and detached magistrate for an independent determination. The rule has always been, when time permits a warrant must be obtained because the United States Constitution has always required that an impartial judgment of a judicial officer be imposed between the citizen and the police who are often engaged in what has been described as the "competitive enterprise of ferreting out crime." Personal privacy has always been of utmost concern in our nation. The United States Supreme Court could not have been clearer regarding the importance of a search warrant when it stated in Katz v. United States:

“The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * *.’ Wong Sun v. United States, 371 U.S. 471, 481-82. ‘Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment." Katz v. United States, 389 U.S. 347, 356-57 (1967).


Evidently, in situations involving the search of motor vehicles for narcotics, these fundamental principals as set forth by the United States Supreme Court have become nothing more then empty rhetoric to the Iowa Supreme Court. On Friday, May 10th, the Iowa Supreme Court in State v. Allensworth http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080509/06-1507.pdf held that even when an automobile is impounded and is safely secured within the possession of law enforcement, police do not have to obtain a warrant to search the entire vehicle if they discover contraband pursuant to their "impound inventory" of the vehicle. Even though the officers had all the time in the world to obtain a search warrant signed and approved by a neutral and detached magistrate, the Supreme Court held that a search warrant was not necessary because the discovery of the narcotics during a inventory search provided probable cause to search the entire vehicle. This included removing the horn cap to discover the concealed narcotics. The Court justified the search under the "automobile exception" to the search warrant requirement.

The "automobile exception" to the warrant requirement has its roots in the well-recognized exception of probable cause coupled with exigent circumstances wherein law enforcement is permitted to forgo the search warrant process because an emergency situation justifies conducting a search to preserve life or evidence that is immanently in danger. With the "automobile exception" the rationale is that the vehicle's "inherent mobility" created the exigent circumstances because if it were not searched the occupants would be able to drive off and the evidence or contraband would be lost forever. Thus, so long as probable cause existed to believe the vehicle contained evidence it's inherent mobility justified the immediate search under the probable cause + exigent circumstances exception. Initially, if properly limited, this exception was at least supported by some form of logic, whether right or wrong.

Over time the "automobile exception" has been bastardized (as have the majority of the theoretically "carefully drawn and jealously guarded" exceptions to the warrant requirement) to the point we have arrived at today. The mobility of the vehicle, which is the entire premise upon which this exception is based, is no longer the primary concern. In fact, it is of absolutely no concern whatsoever. Prior to the Iowa Supreme Court's decision in Allensworth, the focus under the "automobile exception" was the mobility of the vehicle at the time probable cause arose. For example, in State v. Olsen, the Iowa Supreme Court held that so long as probable cause arose on the scene, law enforcement could impound the vehicle and take it to the station for a thorough search and they did not need to conduct the search on the side of the road. The rationale was that because they could have searched the vehicle on the side of the road it was not unreasonable to take it to the safety and security of the station to perform the search. Now, under Allensworth, the mobility of the vehicle becomes absolutely irrelevant. In Allensworth, the vehicle was completely immobilized when the narcotics were discovered in the vehicle pursuant to the inventory search. There was no pressing for time, no emergency situation, no exigency whatsoever. Law enforcement had all the time in the world to obtain a warrant by presenting their findings to a neutral and detached magistrate. The Iowa Supreme Court has taken the "automobile exception" to an entirely new height. The mobility of the vehicle, which was initially the justification for the exception in the first place, now is completely irrelevant. This exception has come full circle.

This decision begs the question of "what's next?" A vehicle broken down and on blocks is still considered mobile because it is an automobile? As far as the Iowa Supreme Court is concerned when it comes to searches of vehicles, they have now take the position of: Warrant? We don't need no stinking warrant! Hopefully the defendant will request that this decision be reviewed by the United States Supreme Court and one can only pray for a better resolution there.