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July 17, 2017

COA: Canine “sniff” search of vehicle after the completion of a traffic stop constitutes an unconstitutional seizure unless officer can articulate reasonable suspicion of criminal activity

Detaining a defendant to wait for a drug dog and its handler to arrive and perform a canine sniff for contraband after a traffic stop is completed is an unconstitutional seizure when the initial traffic stop does not reveal a reasonably articulable suspicion that criminal activity is afoot, held the Michigan Court of Appeals in People v Kavanaugh, No. 330359.
In Kavanaugh, the defendant was convicted of possession with intent to deliver marijuana after marijuana was found in his car’s trunk during a canine sniff search. The sniff search took place after a police officer had fully completed his traffic stop and after the defendant had declined to consent to a search of the car. After being charged, the defendant filed a motion to suppress the evidence found in the trunk, which the trial court denied.
On appeal, the defendant raised two Fourth Amendment issues. First, the defendant argued that the officer lacked grounds to pull him over for a traffic stop in the first place because the officer’s stated explanations were “mere pretexts” for the stop that lacked a constitutional basis. However, the appeals court disagreed, stating that the officer saw what he determined to be two traffic violations: an improperly affixed license plate and a failure to signal a lane change onto an exit ramp. The court explained that the United States Supreme Court has mandated that the existence of probable cause to believe that a driver has violated a traffic law constitutionally justifies a brief detention for the purpose of addressing that violation, even if the officer’s subjective intention for stopping the car is based upon other factors. Thus, because the officer had probable cause in this case, the appeals court held that the traffic stop was lawful and did not violate the Fourth Amendment.
Second, the defendant argued that the officer lacked lawful grounds to detain him beyond the conclusion of the traffic stop. The appeals court determined that the traffic stop was completed when the officer gave the defendant a warning about the traffic violation and told him there would be no ticket issued. After completion of the traffic stop, the officer asked the defendant for permission to search his car, and the defendant did not consent. The officer then requested that a canine officer come to the scene and conduct a “sniff” for the presence of contraband in the defendant’s vehicle and further ordered the defendant to remain at the scene until the dog arrived. The court explained that a seizure within the meaning of the Fourth Amendment occurs when in view of all the circumstances, a reasonable person would conclude that he was not free to leave. Therefore, the court concluded that, having been ordered to remain at the scene by the officer, the defendant was seized under the law.
The court then explained that in Rodriguez v United States, the United States Supreme Court determined that requiring a driver to wait for a dog sniff after a traffic stop is a seizure separate from the traffic stop itself because a dog sniff is not fairly characterized as a part of an officer’s traffic mission. The Supreme Court explained that although officers may conduct certain unrelated checks during a lawful traffic stop, they may not do so in a way that prolongs the stop absent reasonable suspicion to justify detaining an individual. Thus, the Supreme Court held that a stop exceeding the time needed to handle the matter for which the stop was made violates the Fourth Amendment’s shield against unreasonable seizures unless new facts come to light during the traffic stop that demonstrate reasonable suspicion of criminal activity.
In light of the principles set forth in Rodriguez, the appeals court began its analysis with the understanding that the continued detention of the defendant and his vehicle after the traffic stop’s conclusion was unconstitutional unless the traffic stop revealed a new set of circumstances that lead to a reasonably articulated suspicion that criminal activity was afoot based on an analysis of the totality of the facts and circumstances. The officer testified that his suspicions were raised for several reasons: the defendant did not pull over right away, the defendant appeared nervous, the defendant could not produce the registration or title for the vehicle, the defendant did not close the door when asked to sit in the patrol car, and the defendant had differing answers than the defendant’s passenger did when the officer separately interviewed them. However, the appeals court determined that, despite the above testimony, the officer did not have reasonable suspicion of criminal activity sufficient to justify his extension of the traffic stop to allow for a dog sniff. The court explained that it is not enough for an officer to have an inchoate and un-particularized suspicion or hunch of criminal activity, but instead, the officer must be able to articulate specific reasonable inferences he made, which he is entitled to draw from the facts in light of his experiences. The court emphasized that the constitutional requirement is clear—a hunch is not enough—because if it were, then many more stops of innocent persons would occur. Therefore, enforcement of Fourth Amendment protections even where a person is guilty is necessary to preserve the rights of the innocent against unlawful police detentions and searches. Consequently, the appeals court reversed the trial court and held that the detention that took place after the traffic stop’s conclusion was unlawful and, accordingly, the evidence obtained as a result of that detention and canine sniff search should have been suppressed. 

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