Call Off the Dogs: When You Can't Be Held Up By the Cops for a "Dog Sniff". by Attorney Mark Stevens

Illegal Search and Seizure. Being stopped for a routine traffic citation is common occurrence, and it happens to ordinary citizens frequently.  The police sometimes try to morph the routine traffic stop into a generalized search as part of their "War on Drugs", often by threatening to "bring out a drug dog" if the driver does not consent to a search of her car for drugs or other contraband.

 In Rodriguez v. United States, the United States Supreme Court tethered police officers to the Fourth Amendment's prohibition against unreasonable seizures and searches that occur when the police try to turn an ordinary traffic stop into a far more intrusive encounter. A traffic stop can become unconstitutional at the point that the police extend it beyond the time necessary to accomplish the initial reason for the stop.  In Rodriguez' case, for example, he was stopped for "swerving".  When the officer asked him why he swerved he said he avoided a pothole.  The officer issued Rodriguez a written warning for the swerve, then delayed Rodriguez at the roadside for seven or eight minutes until another officer with a drug sniffing dog arrived. The drug dog indicated that drugs were present and the police found a controlled drug: methamphetamine in Rodriguez' car.  The government argued that a 7 or 8 minute intrusion into a person's freedom was "de minimis".  it probably didn't feel that way to Mr. Rodriguez.

The Supreme Court disagreed with the government's argument, and held that an extension of a seizure after the mission of the initial stop had been accomplished (in this case a written warning), without reasonable articulable suspicion of criminal activity violated the Fourth Amendment and the Court reversed and remanded Rodriguez' case.  This holding may provide even greater protection than the current law in New Hampshire.  In one of the leading cases on how cases involving extensions of routine traffic stops are permissible under the New Hampshire Constitution, the New Hampshire Supreme Court noted that:

"On the other hand, requiring every police inquiry either to be related to the initial purpose of the Terry stop or to be justified by reasonable articulable suspicion of additional criminal activity is unduly restrictive."
State v. MacKinnon-Andrews, 151 N.H. 19 (2004).  In Rodriguez, in contrast, the United States Supreme Court held that "Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution's shield against unreasonable seizures."

Attorney Mark Stevens
Law Offices of Mark Stevens
5 Manor Parkway
Salem, NH 03079
Admitted in New Hampshire and Massachusetts

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