Page 1 of 2 12 LastLast
Results 1 to 10 of 16
  1. #1
    Join Date
    Jan 2008
    Posts
    5

    Default K9 Searches and Probable Cause

    I've got a couple of questions regarding k9 searches and probable cause. The state in question is Ohio, and here is a brief summary of the events that occured.

    -Vice Unit pulls over my fiance's vehicle (which I am driving) for "Failing to use turn signal when leaving curb" after indiscretely following me for 3 miles from the scene of the traffic violation.

    -The Vice officer asks me if he has permission to search the car, and I say no.

    -Another officer then uses a canine to sniff the exterior of the car (Not sure if the canine was present when pulled over, but it wasn't long until it arrived if not).

    -Without any further notice, the officer opens the car and searches the interior of the car with the canine. After the canine is done searching a group of officers procede to search the vehicle by hand.
    ***Note: There is an open container of fresh Chinese food on the center console prior to the canine search***


    -As a result of the search(es) they find 2 Schedule I pills that I have a valid prescription for, and 2 Schedule I pills for which there is no valid prescription, in my Fiance's purse.

    -The officers state that the dog indicated on the drivers door, passengers door, and trunk door which gave them probable cause to conduct the search.

    -My fiance is charged with 4 counts of Aggravated Drug Possession


    I realize that is a lot of information to take in but here is the gist of the situation. My fiance is a Canadian citizen and her greencard expires soon, so getting these charges lessened or dropped is crucial for her to be able to renew her greencard and stay in the country for our marriage. Can anyone provide some insight, or possible angles to pursue in defense of this case, canine searches, or significant others holding another's prescription meds?

    I understand that all advice is hypothetical and you assume no liability in providing any such advice. Also here are some questions I have....

    -Can canines smell pills?
    -Can the validity of a Canine search be affected if there is food in the car?
    -If a Canine indicates all over the exterior of the car but there isn't any actual drugs in the vehicle itself, does this invalidate the Canine's indications on the vehicle?
    -Do the police have to secure permission from the vehicle driver or owner to conduct a search? (Presuming both are in the vehicle)
    -What are some other practical ways to invalidate a Canine search? (I.E. dog was trained with psuedo-scents and consequently might indicate on non-narcotic substances)


    ANY thoughts, comments, or direction would be invaluable! Thanks for your time.

  2. #2
    Join Date
    Jan 2008
    Posts
    5

    Default Re: K9 Searches and Probable Cause

    **NOTE: I am not claiming to have any legal knowledge, but I am fully aware that possessing controlled substances without prescription is illegal and wrong. However, in this situation, any substance abuse problems would be most effectively addressed outside of the legal system. Consequently, I am trying to figure out how to resolve this legal issue so the underlying issues can be properly dealt with and resolved.

  3. #3
    Join Date
    Jan 2006
    Posts
    27,120

    Default Re: K9 Searches and Probable Cause

    -Can canines smell pills?
    that is a tough question in itself. A dog alerts on what it has been trained to alert on. It is doubtful the dog has been trained to alert to a specific pill (doubtful the ingrdients would be able to be smelled) but that does not mean there was something else the the dog alerted on. Not accusing here, simply explaining.

    What often happens is regardless how carefully a drug transporter cleans and protects a package from being able to be smelled by a dog, they person often comes in contact with some drugs (not even neccessarily the drug in the package of question) and they touch the door or it is on their clothes and the dog alerts on that, rather that what is actually in the package. It is difficult to be totally clean.

    -Can the validity of a Canine search be affected if there is food in the car?
    doubtful. These dogs are trained quite well and are trained to take a specific action on a specific substance. While the dog may have been excited about the food, he would not alert as trained due to the food.

    -If a Canine indicates all over the exterior of the car but there isn't any actual drugs in the vehicle itself, does this invalidate the Canine's indications on the vehicle?
    No, see above although is provides an area to use as defense of the properness of the search.
    -Do the police have to secure permission from the vehicle driver or owner to conduct a search? (Presuming both are in the vehicle)
    Nope.
    -What are some other practical ways to invalidate a Canine search? (I.E. dog was trained with psuedo-scents and consequently might indicate on non-narcotic substances)
    You would have to discredit the dependability of the dog to alert correctly. It makes no difference if the dog was trained to alert on hamburger as long as the dog is proven to alert on whatever drug is found.

    the only thing I can see is attempting to disredit the dogs alert as the drug they found would not be a drug typically trained to alert on so the officers would need to defend the dogs alert.


    Hopefully Carl (CDWJava) will catch this and offer some expertise as he is a police officer with a lot of experience and wisdom in things such as this.

  4. #4
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,637

    Default Re: K9 Searches and Probable Cause

    The law varies somewhat in any given state, although there is broad agreement that having a trained dog sniff a vehicle does not constitute a search, and that the dog's alerting to something in the car creates probable cause for a search. Here's how an Ohio court (PDF) summarized that state's law:
    Quote Quoting State v Almazan
    This court has previously held that "if the specific and articulable facts available to an officer indicate that a motorist may be committing a criminal act, which includes the violation of a traffic law, the officer is justified in making an investigative stop." State v. Carlson (1995), 102 Ohio App.3d 585, 593, 657 N.E.2d 591. Once the occupants of the vehicle are lawfully detained, "an officer does not need a reasonable suspicion of drug-related activity to conduct a dog sniff of the vehicle." Id. at 594. In State v. Nguyen, the court engaged in an extensive discussion of the use of drug-sniffing dogs and their reliability. State v. Nguyen, 157 Ohio App.3d 482, 2004 Ohio 2879, 811 N.E.2d 1180. The court said that "when a dog alerts to the presence of drugs, it gives law enforcement probable cause to search the entire vehicle." Id. at P 22, citing State v. Bolding (May 28, 1999), 6th Dist. No. E-97-115, 1999 Ohio App. LEXIS 2383.

  5. #5

    Default Re: K9 Searches and Probable Cause

    The problem is that the officer can claim the dog "alerted" whether it did or not. I also question whether they could search the purse unless it was left in the vehicle. Bottom line is that if an officer wants to search your car he can find probable cause whether it exists or not. Here they likely had some reason to believe that there were drugs in the car, possibly because of the area. They could have arrested you on the traffic charge, then towed and searched the vehcile. The chances of gettting the search thrown out at the trial court level are very small.

    For consent, only the consent of the driver is required for the vehicle.

  6. #6
    Join Date
    Jan 2008
    Posts
    5

    Default Re: K9 Searches and Probable Cause

    Thanks for your input JK. Yea Carl does seem to be the resident guru around here.

    The worst part of this whole situation is that the Vice Unit didn't really care about us, they were just using us as a pawn to obtain probable cause so they could raid the friend's house whom we had just left (its clear that the friend we were visiting was a little deeper into the drug game than we had initially known).

    The fact that my fiance's arrest fueled the probable cause for the raid leads me to believe that it's going to be next to impossible to get much of anything dropped. My hope is that she can plea out to misdemeanors, out of fear that there is a possibility that the case will get thrown out and the subsequent probable cause for the raid would be lost. I'm not sure if this is a feasible plan of action as I have no law experience, but regardless we still need to build as strong of a case as possible.

    Currently we have a public defender, and we are talking wit another criminal lawyer as well, neither of which is saying much at this point. I'm unsure of the competency of either attorney, so I'm sure I'll be making quite a few more posts in the near future.


    -On the subject of food in the car, I understand that K9 units are extremely well trained, but at the same time K9's are animals and they do have animal instincts. I'm not sure if Pavlov could have trained his dog to not salivate at the bell ringing. Also, at the time of arrest the officers made a big deal about the food. One officer ran up to the K9 handler rather quickly to make sure he knew there was food in the car. This should all be shown on the cruiser tape.

    -In regards to the dog indicating on 3 of the 5 vehicles doors; I got to thinking about this. If the dog indicated on only 3 of the 5 doors, then the source of the scent which triggered the indication would not likely be something that blanketed the entire interior of the vehicle (i.e. marijuana smoke). This somewhat implies that the source of the scent would appear to be localized to the specific doors on which the dog indicated, even though there were no drugs present on or in those particular doors. This is one of the things that makes me believe that the dog was "told" to indicate by the officer, and they said the dog indicated on those doors just to cover their bases in case there was a big stash in any of those spots.

    -After browsing many of the drug/bomb/tracking dog training websites I ran across a FAQ where an officer (Border patrol I believe) was having issues with his dog. The issue was that the dog had learned that if he indicated on a door he would get his reward, so he started indicating on every door seam regardless of the scent presence simply to receive his reward. Its clear that dogs aren't perfect; I guess getting the training records of that dog are going to be something to look into.

    -As far as using pseudo-scents in training, the potential usefulness of this would be that (hypothetically) since the dog was trained with non-narcotic substances, if the K9 handler was asked "When the K9 indicated on the doors of the vehicle, were you certain that it was detecting the presence of narcotics?" In this situation the handler can't really answer yes because the dog WILL indicate on substances that are non-narcotic (even though the non-narcotic substances it will indicate on are designed to simulate the smell of narcotics). Yea, I know its not much, but it might be something.

    All .02 are much much appreciated, thanks for your time.

  7. #7
    Join Date
    Jan 2008
    Posts
    5

    Default Re: K9 Searches and Probable Cause

    Thanks for the post with the case reference, thats extremely helpful. So it looks like challenging the accuracy of the dog is pretty much out of the question.

    I understand that a dog sniff is an "investigation" not a search, and once I was pulled over they can bring the dog around the vehicle without probable cause, BUT I do remember reading/hearing that the officers are not allowed to unduely prolong a traffic stop inorder to allow time for a dog to arrive. In this case the officer could have written me the ticket and let me go on my way, but they definatly delayed the process in order to allow the dog to arrive. Now whether that is apperant on the cruiser video is questionable. Also, I'm hoping and praying that once we get ahold of that cruiser video it will be questionable whether or not the dog actually indicated on 1 or more of the doors. We'll just have to wait for the "Demand of Discovery" (thats where the prosicutor has to give us a copy of all the evidence they have, right? or is that the "Bill of Particulars"?)

  8. #8
    Join Date
    Jan 2006
    Posts
    27,120

    Default Re: K9 Searches and Probable Cause

    -On the subject of food in the car, I understand that K9 units are extremely well trained, but at the same time K9's are animals and they do have animal instincts. I'm not sure if Pavlov could have trained his dog to not salivate at the bell ringing. Also, at the time of arrest the officers made a big deal about the food. One officer ran up to the K9 handler rather quickly to make sure he knew there was food in the car. This should all be shown on the cruiser tape.
    reacting is not the same as alerting in a specific and trained manner. Yes, the alert could be false if the training was not proper or it was not continued. ALerting to a door jamb suggests the training was improper. If the dog was rewarded for alerting to a door jamb, then the dog was not searching for drugs but rather he was searching for "door jambs". Poor training. a dog is trained to react in a specific manner to a specific stimuli. He very well could react to the food but is would not be the same as the trained response to drugs. A good handler will be able to seperate the two reactions although that is a possible point of defense as well.

    as to permission to search: I may have misunderstood your question. If a dog alerts, they do not need anybody's permission as they have the courts permission at that point.

    as to an individual permitting it:
    the owner can consent regardless of being the driver or not and the driver and can over ride anybody's objection to a search.

    Not sure on the drivers permission. I suspect he can allow a search due to the fact a driver is considered to be in full control of the vehicle they are driving but not sure. Maybe Aaron or Carl will address this point. For it to be worthwhile for them to address, you may give the specific action and reason you asked this. They could address the exact situation more directly.

    This is one of the things that makes me believe that the dog was "told" to indicate by the officer, and they said the dog indicated on those doors just to cover their bases in case there was a big stash in any of those spots.
    all that may mean is nobody with drug residue on their hands touched the door the dog did not alert to and the other doors were opened by people having some drug residue on their hands.

    If you read Aarons link, you will see that objecting to the accuracy of the dog is difficult. I, personally, would like to have seen a greater threashold of proof to the accuracy and reliability but they believed what was offered was enough.

    -As far as using pseudo-scents in training, the potential usefulness of this would be that (hypothetically) since the dog was trained with non-narcotic substances, if the K9 handler was asked "When the K9 indicated on the doors of the vehicle, were you certain that it was detecting the presence of narcotics?" In this situation the handler can't really answer yes because the dog WILL indicate on substances that are non-narcotic (even though the non-narcotic substances it will indicate on are designed to simulate the smell of narcotics). Yea, I know its not much, but it might be something.
    two things here; the psuedo agents have been proven to offer a simialrity great enough to the actual drug that an alert to the psuedo drugs is in fact relieable when training for an actual drug.

    Also, as I stated before, it does not matter if the dog was trained using hamburger as long as the dogs results and reliability can be proven when finding drugs.

  9. #9
    Join Date
    Jan 2006
    Posts
    27,120

    Default Re: K9 Searches and Probable Cause

    Quote Quoting NStone79
    View Post
    BUT I do remember reading/hearing that the officers are not allowed to unduely prolong a traffic stop inorder to allow time for a dog to arrive. In this case the officer could have written me the ticket and let me go on my way, but they definatly delayed the process in order to allow the dog to arrive. Now whether that is apperant on the cruiser video is questionable.
    well, this is from your first post:
    Another officer then uses a canine to sniff the exterior of the car (Not sure if the canine was present when pulled over, but it wasn't long until it arrived if not).
    You do not even know if the dog was present when you were pulled over and you state "wasn't long" until it arrived if it wasn;t there at the stop. I would suggest that based upon that statement alone, they did not detain you too long to aquire the dog, IF it wasn;t there at the stop.

    The detention cannot be greater than what a typical stop for whatever reason they stopped you would typically be, including the time to investigate additional matters that may have been discovered once you were stopped. From the sound of your psot, they did not detain you any great length of time prior to the dog being utilized.

  10. #10
    Join Date
    May 2006
    Location
    between here and there, but you can't here from there
    Posts
    547

    Default Re: K9 Searches and Probable Cause

    I can't put any legal perspective here, but I do want to point out that I think K-9 sniff searches should not be jusifiable grounds for a police search of a vehicle. We do not know the training or reliabliity of the K-9 and nearly anything can set off an additional sniff to which the police claim the dog alerted.
    Case in point: I was stopped for a trun signal infraction. The cop requested consent for search and I refused. The cop pointed out that by refusal, it makes me look suspect for something illegal and he called for the K-9 unit. They arrived and the dog "alerted" the cop, thereby giving him reason the search. What did they find? A piece of beef jerky that my dog had inadvertantly dropped under the seat. Other than that, I was clean, my truck was clean. There was nothing at all. Reason being I do not drink, I don't use drugs and, at the time, only my dog and I rode in my truck so no one could have left anything.

    But, a girl I knew got into a crash and the K-9 couldn't find any drugs at the scene. In her purse- in the car- was crystal meth. And the dog couldn't find that???

    No matter how you look at it, if a dog is brought to your vehicle, most likely, you will get a police search because the dog always "alerts", even though we don't know what the alert signal is. So, any movement of the K-9 is can be interpeted as a "signal" and we are none the wiser. This can make for a number of unwarranted and illegal searches.

    Now, I just give consent for the search. They ain't gonna find anything anyway, so why not let them waste their time. Waiting for the dog is just wasting mine.

    1. Sponsored Links
       

Page 1 of 2 12 LastLast

Similar Threads

  1. Criminal Investigations: Police Searches of Minors
    By ryjbeatte in forum Police Investigations
    Replies: 2
    Last Post: 06-13-2010, 08:41 AM
  2. Police Conduct: Searches on School Grounds
    By NCC 1701 in forum Police Investigations
    Replies: 8
    Last Post: 04-10-2010, 09:13 AM
  3. Student Car Searches
    By BOR in forum Debate the Issues
    Replies: 1
    Last Post: 02-05-2010, 02:00 PM
  4. Background Checks: Credible Record Searches
    By eaglesfly in forum Application, Hiring and Promotion
    Replies: 10
    Last Post: 08-25-2009, 01:23 PM
  5. Privacy: Pat-Down Searches In The Workplace
    By Maxima Lover in forum Problems at Work
    Replies: 1
    Last Post: 02-23-2007, 02:20 PM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Criminal Defense Attorney
Protect your freedom. Consult a criminal defense lawyer for free.




Untitled Document