If I am a police officer and hear someone screaming inside a house (while I am out on the sidewalk, I think that would be probable cause for me to enter despite the fact that the foul murderer could claim I was “searching the INSIDE of the house . . . by hearing.”
But there are limits to what kind of non-invasive searching you can do externally. Kyllo v. United States found that police could not use infrared scopes without a warrant in searching for signs of marijuana production.
My legal citation searching leaves much to be desired, but this site has several citations for case law related to dog-sniff searches:
This page has a good overview of the issue (though it may be specific to Florida).
But in reading around it seems that a suspicionless dog-sniff search is acceptable as long as it doesn’t involve additional suspicionless detainment. If you are pulled over by a K9 unit for a traffic violation, the dog can smell all it wants (just as if you are pulled over for speeding the cop isn’t expected to ignore the vast amounts of blood plainly visible on your back seat).
But if it would require additional detainment beyond that necessary to resolve the original cause for stopping, it may be illegal.
I was wondering; what if the officer has called the K-9 unit and they’re just waiting for them to arrive. Now, the officer had no probable cause to search the car, and was just bored. In the time that it takes for the K-9 unit to arrive, what if the motorist gets fed up and says, “Have a nice day, officer” and drives off? Is this probable cause for the officer to then search the car, or can the motorist claim that he/she was under no obligation to stay and decided to continue on?
AFAIK (and I’m sure an officer will be along shortly to either support or refute this belief) you are still being detained by the attendant officer until such time that he/she releases you. Whether or not you’ve spent the requisite amount of time related to you being pulled over depends on a lot of factors, and among them is suspicion of wrongdoing.
As my anecdote above (about my friend having to wait for the K9 unit to arrive) there really isn’t much Joe Taxpayer can do about the amount of time spent detained. The officer really has the upper hand in this regard, and can likely keep you around as long as he/she sees fit, so long as it’s not “unreasonable,” which is a truly abstract amount of time.
As to the legality of calling the K9 unit at all…well, that I’m not sure about. Honestly, I think it’s probably an interesting question…maybe a Doper Officer can shed some light on whether this practice is legal or not?
The rule I’ve heard (from some lawyer or other, no citation) is that if the cops have the legal right to search you or your car, they won’t ask; i.e. if they ask, always decline to consent to the search. I mentioned that I had heard this (from some lawyer or other, no citation) to a parole officer of my acquaintance, and she agreed, adding that immediately after declining to consent to the search you must ask, “Am I free to go?” If you don’t and stick around thinking that you aren’t, then when the clock ticks while waiting for the dog to show up and you later claim that you were illegally detained, the reply will be that you were free to go but chose instead to stick around.
It is true that there are reams of pages of caselaw discussing that magical moment in which a former seizure becomes transformed into a consensual search, which I have always dubiously regarded as a bit of stage magic worthy of a latter-day Houdini. But things don’t turn on any kind of magic phrase like “Am I free to go?” Instead, the court will look at the totality of the circumstances, at what a reasonable person would have believed. If the police conclude the traffic stop portion of the encounter, and return your driver’s license, but ask you to remain in place to await the arrival of the K9 unit, without explictly telling you that you’re free to go, I find it hard to believe that a court would conclude that the enounter had become consensual and that you were chosing to wait around of your own voilition.
The key element is how your privacy is compromised. While it’s true that the K9 dog, by virtue of his superior nose, is undoubtedly privvy to all sorts of embarrassing information about you now, like the unwashed socks under the back seat, the six empty Twinkie wrappers in the ashtray, and the supply of ribbed-for-her-pleasure condoms in the glove box, the fact is the dog doesn’t communicate any of that to the cops – or, so far as we can tell, to any other dogs. The dog is just a digital switch - yes for “Drugs,” no for “No drugs.” No other information is transmitted to the police, and the information that the dog uses is undeniably outside the car, publicly sniffable.
OTOH, asking that is worth something, for if they say “yes”, then you can go, and if they say “no”, then you’re “under arrest”. More likely they’ll come up with some non-answer like “what’s your hurry?” or something. In which case, repeat the question.
Oh, and once they read you your rights- STFU and demand your lawyer. At that point: “I want to speak to my/an attorney” is just about the only thing you should say. IANAL. YMMV.
Well, you know, for a lawyer, it seems like you’re being rather shy of explicitly stating the terms of being detained or not detained. I just simply don’t see the disadvantage to finding out explicitly whether you are actually being detained persuant to your traffic stop or if you’re just waiting around to humor the cop that stopped you.
If a cop said, “Will you please remain seated on this curb while we wait a half hour or so for a K9 unit to show up?” I can easily see people interpreting that as an order while a court could easily interpret that as a simple request rather than acutally being detained. So, again, what is the disadvantage of making the conditions of why you are staying there explicit? If the cop ends up having to explicitly state that you are being detained with no probable cause so that when the K9 unit finally shows up two hours later, finds nothing, and you’ve missed getting to your job interview on time, you have a basis to claim some sort of damages.
Finally, what has case law generally decided to be a reasonable length of time that a police officer can drag out a traffic stop without probable cause for?
What’s the shortest detainment that routinely leads to awards of damages or rejecting the results of a search? What is the longest detainment that has been allowed as a reasonable wait for a K9 unit?
Well, since the law is the product of lawyers, of course there aren’t explicit terms for whether one is detained or not . Courts do look at the totality of the circumstances.
As far as other points that have been raised since the OP…
… refusal to let an officer search does not by itself create reasonable suspicion or probable cause (p.c.)
… Reasonable suspicion is enough to stop/detain someone – p.c. is necessary for an arrest, not a detention. TERRY v. OHIO, 392 U.S. 1 (1968) Note: the Court described this as, “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
… the Supreme Court held in Sharpe that 20 minutes was not too long to detain someone UNITED STATES v. SHARPE, 470 U.S. 675 (1985) . Note: the Court stated, "In assessing whether a detention is too long in duration to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Here, the DEA agent diligently pursued his investigation, and clearly no delay unnecessary to the investigation was involved. "
>>> The Court has upheld much longer detentions, mostly in US Customs investigations relating to possible smuggling, and struck down many shorter ones. Most US police agencies go by the 20 minute guideline. The key is diligently pursuing the investigation. This can include waiting for a drug dog, however, the time for that wait will be reviewed by a court if it's challenged. An officer may not keep you around, "for as long as he/she sees fit."
… drug dogs aren’t searching inside the car; the odor has travelled outside the car.
I had an interesting experience happen to me back in 2001. I was driving on I-44 about 10 miles outside of St. Louis when I was pulled over for “speeding”. I wasn’t. The policeman asked me to search my car. At that point, I assumed that he had pulled me over because I fit some sort of profile for drug/cash transport.
(I was a lone male with a beard and sunglasses in a two door car on a Monday. I wonder what it was…)
Anyhoo, I consented to the search because (a) I am pretty much a supporter of the police and (b) I was clean. Another policeman was on the scene within five minutes of my consent. I waited probably 15 minutes while they found nothing. At that point, I was told I was free to go. No ticket for speeding was ever mentioned. After I left, I came to the conclusion that I would have been ticketed for speeding if I had refused the search. While I found the experience a bit inconvienient, I really didn’t mind all that much. Some fairly large drug and cash busts have taken place on interstates, and I knew I was clean, so they could search away if they wanted to. I know I’m teetering on opening up a can of worms that belongs in Great Debates, so I’ll end the post here.
Possibly, as I wasn’t there I obviously don’t have all the relevant information. But, it could have been for many other reasons.
Last year, I was riding with my parents when a cop pulled us over. Mom had missed a school zone sign, and failed to reduce her speed. Upon hearing the amount of the fine (IIRC $175), Mom began sobbing because there was no way she could pay that and that month’s bills. Based on how upset Mom was, how polite we were, the officer believing Mom had missed the sign and was not intentionally breaking the law, and (this one the officer specifically mentioned) that we were all wearing our seatbelts, he let us off with a warning.
Back To The OP
I’d refuse a search. I really don’t like strangers going through my stuff. 'Please don’t unseal that bag! No it doesn’t contain drugs. But, it does contain the first appearance of white kryptonite and is in mint condition."
So can the person who is being asked for consent to search ask the officer what he is looking for?
For instance, suppose the police officer suspects that I have drugs in my car. I don’t, but I do have something else that is illegal - say a firearm. Obviously, I don’t want to give consent, but I’m in a bit of a spot right now - the gun is probably going to be discovered.
In the scenario, if the officer asks if he can search my car, can I ask him exactly what he is looking for and why he thinks it is in my car before I give consent? If he says “I’m looking for drugs” and I give consent because I don’t have any drugs, can the discovery of the firearm be used against me? He may have had specific and articuable facts to search for drugs, but not a firearm.
Yikes. I think you’d be screwed on that one, Dag. Even though he wasn’t looking for a gun, he surely won’t ignore one if it shows up.
That’s like saying, I have a warrant to search your house for a meth lab, and because I didn’t find one, I have to ignore the nine bodies I found in your crawl space.
Law enforcement isn’t a game of Go Fish. If I were in that situation, and had an illegal firearm in the car, I’d likely not consent to the search. However, once it became clear that the jig was up, I’d own up to it, just so the officer is aware of what he is going to find.
Trust me – as the recipient of a TOTAL car search (in which they even removed the car’s seats) the officer will find whatever he/she is looking for.
I do understand that the the gun will be found. I’m wondering if there is a difference in an officer finding it during a search without my consent (it’s given that he has reasonable suspicion to search for drugs) or finding it during a search with my consent (after he stated that he was searching for drugs). In the first case, it’s reasonable that he would have found the gun anyway, and off I go to jail. In the second case, I’m not so sure. I’d certainly be an idiot for letting him search the car, but does narrowing the search to drugs give me any sort of defense?
I really doubt it, but IANA Law Enforcer, either. My gut tells me the gun would still result in a trip to jail. They might have gotten a warrant for one crime, but you’re still liable for any other crimes you might have (or still be) committed.
Think of it this way: The cop pulls you over for speeding, and then notices you have an open bottle of Dewar’s in your car. He can cite you for open container, even though he didn’t originally pull you over for it.
IANAL, and I don’t watch them on TV very often, but here goes a WAG that I hope some lawyers will back up or cast aside.
Warrents cover areas and contents. You can get a warrent to search a garage, but if you want to search the house it must say that. You need probable cause to get a warrent, but once that is granted, anything illegal you find (as long as it is in purview of the search warrent) is fair game.
Some searches don’t require warrents, as people have said in this thread. If an officer stops you for speeding he or she is allowed to check out the car to see if you have a weapon that is easily accessable and would be a danger to the officer’s life. This may involve checking out the passanger seat or the back seat. If, in the process of this quick check he or she spotted drugs then you are busted, even though the search was for weapons to ensure the officer’s safety.
But, a quick check for weapons doesn’t give the officer the right to look in your trunk because a gun (or whatever) in there couldn’t reasonably threaten the officer’s life. If they searched your trunk with no probably cause and found drugs, that would likely be thrown out as they had no reason to be there.
If you give consent to a search, I imaging anything they find could be used against you. If they have the right to search, they don’t need to ask your permission, but it’s probably useful info for the officer.
Again, huge disclaimer, I may know nothing of what I say.
. Courts do look at the totality of the circumstances.