From time to time in my criminal practice I represent clients who have been stopped by police for committing various traffic infractions while driving such as making an improper turn, not coming to a complete stop or equipment violations for having a broken tail light or excessive tint on their windows. Under these circumstances, the expected result is that the officer either gives the driver a warning or issues a citation and thereafter instructs the driver to be more careful as they drive away.
In some situations however, after the officer has either issued a ticket or given the driver a break and a stern warning, a K-9 officer arrives at the scene and immediately has the dog sniff the vehicle in an attempt to detect whether illegal drugs may be hidden inside. Under both Federal and Florida law, the answer as to whether this is lawful behavior is a qualified maybe.
The controlling U.S. Supreme Court case is Rodriguez v. United States, 135 S. Ct. 1609 (2015). In Rodriguez, the defendant was stopped for driving on the shoulder of a highway in Nebraska. The officer checked the driver's vehicle registration and driver's license and told him he was giving him a warning. At that point he also asked the driver if he would consent to a K-9 dog walking around his vehicle, to which the driver refused. The officer - a K-9 officer with his dog standing by - waited for a second officer to arrive at the scene, he then released his dog which thereafter alerted that drugs were located in the vehicle. The defendant was arrested for possession of methamphetamines.
The defendant filed a Motion to Suppress the drugs, arguing that his 4th Amendment rights were violated as a result of the extended traffic stop and subsequent search of his vehicle. The trial court denied the motion, stating that the stop was of limited duration (''de minimus") and referred to thee prior US Supreme Court decision in Pennsylvania v. Mims, 434 U.S. 106 (1977). The case made its way to the U.S. Supreme Court, which held that Mims, which primarily dealt with officer safety concerns at traffic stops did not apply. Instead the Court looked to the nature and "mission" of the traffic stop, finding that the singular purpose of routine traffic stops is to determine whether to issue a citation or not and conduct the ordinary inquiries of such an encounter, ie. confirming driver's license and registration information, determining whether there were any warrants for the occupants, etc.
The Court held that "the stop may not last longer than is necessary to effect that purpose" and that having a K-9 dog sniff the vehicle was not an "ordinary incident of a traffic stop". As a result, the lower court's ruling which denied the Motion to Suppress was reversed.
Florida courts have addressed the Rodriguez decision in a number of recent cases. In Pressley v State, 227 So3d 95 (Fla 2017) the primary issue addressed the propriety of permitting a police officer to order a passenger to exit the vehicle during the traffic stop without reasonable suspicion of criminal activity. In that case, one of the passengers became unruly and got into a physical altercation with an officer at the scene. Backup officers were summoned. During the investigation it was determined that one of the other passengers was in violation of his probation and was arrested. His subsequent Motion to Suppress was denied by the trial court.
The Florida Supreme Court acknowledged the rule established by Rodriguez that "a traffic stop ends when police have no further need to control the scene and inform the driver and passengers that they are free to leave". In affirming the trial court's ruling, the Supreme Court stated that "the stop was prolonged not by law enforcement but by one of the passengers who was attempting to leave". More recently in Flowers v. State,290 So.3d 642 ( (Fla. 1st DCA 2020), the First DCA examined a case where the driver of a vehicle was stopped for making an illegal right turn at an intersection. During the stop the officer learned that the driver was a convicted felon. He was still in the process of writing the ticket when the K-9 officer arrived at the scene. The dog alerted on the car and the defendant was arrested for possession of a firearm and possession of cannabis. In its ruling, the court evaluated whether the traffic stop was unreasonably delayed in order to facilitate the K-9 search, since an officer may not prolong a traffic stop to conduct a dog sniff absent reasonable suspicion of criminal activity. In this case, the officer was still writing out the traffic citation when the K-9 officer arrived with the dog. As a result, the conviction was upheld.
As with any encounter with the police, the rule of thumb is to employ common sense. Timely providing the officer with the necessary documentation is a good first step. Politeness also helps. Since the reason for the stop was for the violation of a civil infraction, officers cannot search your vehicle without your consent. This does not change should the officers threaten to bring a K-9 dog to the scene. As you have seen in Rodriguez, this behavior is most likely improper and will be strictly scrutinized by the courts. Should you or a loved one have been placed in such a situation from which you now face criminal charges, please do not hesitate to contact me at my offices for a no-cost evaluation.
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