<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by dogs4kenneth:
BIL was routinely stopped in a rental car from California driving in the panhandle of Oklahoma. There were 3 of them in the car. The guy in the backseat had an open container. They were all given field sobriety tests and passed. They were then asked for consent to search the vehicle, they DID NOT give consent. The police searched anyhow then called in the drug dogs. The dogs alerted on a felony amount of Marijuana in the back seat. They denied knowledge of this. They were cuffed and searched and when they got to BILs friend they dropped a baggy of cocaine at his feet and said what do we have here? Cocaine possesion too? and laughed then claimed to have found it on him. I truly beleive BIL and his friends, they are good kids and it is not what they would do. Open containers sure (I dont approve but I dont doubt they drink and drive, even a joint wouldnt have surprised me but I believe they were set up) It got worse from here, they were jailed on 3-4 felony counts and the rental car was siezed. When they made bail, the towns folk and even the former DA said this happenes all the time. My boss is from this part of the country, and I work for ADAPCP (Army Drug and Alcohol Prevention and Control Program) and he says it is probable that they were set up. BIL demanded a drug test and they refused to administer one. He goes to his arraignment in 2 weeks. What can we do?????
Leslie <HR></BLOCKQUOTE>
My response:
Every State has it's own particular laws concerning "drug sniffing" dogs. However, we must first determine if the "routine stop" was, itself, a "lawful stop"; i.e., what was the purpose. Assuming that the "stop" was lawful, you then state "The guy in the backseat had an open container" i.e., the open container was in "plain view." At this point, the officers did not need consent to search because the officers had to know whether or not there was more alcohol in the vehicle, which is part of an investigative stop based on a reasonable and articulable suspicion of imminent criminal activity involving controlled substances. The dogs were brought in to determine if there was any more alcohol and, during their search, drugs were found. Now, insofar as the cocaine is concerned, as part of the discovery process in the criminal matter, their attorney will ask for the officers' video tape of the arrest, which should show whether the drugs were found on the person, or planted.
As an example of how drug sniffing dogs are accepted or not accepted by various States, the following may be of interest to you:
Interestingly, the New Hampshire Supreme Court in State V Pellicci, 133 N.H. 523 (1990) held that the use of a drug detection dog to sniff the exterior of an automobile was a "search" within the meaning of part 1, article 19 of the State Constitution; and the police need an articulable and reasonable suspicion of criminal activity to justify the dog's sniff. The court rejected the state's argument that the Place decision analysis should be used and said, "as Pellicci correctly argues, we have held that our Constitution may be more protective of individual rights. than the Federal Constitution, Id. at 527.
Part I, article 19 of our Constitution accords "[e]very subject... a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." The court said the sniff was a search as the drug detection dog discerned something not otherwise apparent to the officers through their own senses, aided or unaided, and advised them of what the dog had discovered by means the officers could perceive. Id. at 528. After all the court reasoned, the very purpose of bringing the dog to the vehicle was to have it detect any contraband that might be hidden inside. Id.
The court went on to say that the limited nature of a canine sniff allows for a reduced standard and that it would be justified as long as there was a reasonable suspicion. Id. at 529. The court concluded that where a canine sniff:
(1) is part of an investigative stop based on a reasonable and articulable suspicion of imminent criminal activity involving controlled substances;
(2) is employed to search a vehicle;
(3) in no way increases the time necessary for the moderate questioning our prior cases allow; and
(4) is itself based on a reasonable and articulable suspicion that the property searched contains controlled substances, it satisfies the requirements of part I, article 19. Id. at 535.
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