Throughout Interstate 80, individuals driving cars with out of state plates are stopped, taken to the police car to be questioned, and eventually their cars are searched. Sometimes the search occurs with consent. Sometimes the search occurs without consent. Often individuals who have been stopped by law enforcement and his vehicle searched without consent complain that there was never a warrant to search the vehicle. Under automobile exception to the warrant requirement, police do not need a search warrant to search a vehicle on the interstate in most instances. The reason why a search warrant is not necessary is because there is a reduced expectation of privacy on public roads and highways. If law enforcement has probable cause to search, they may search a vehicle without a search warrant.
However, just because there is no warrant requirement does not mean that law enforcement may search a vehicle on a whim or hunch. In order to search a vehicle, law enforcement must have probable cause to establish that a crime was committed and that a defendant committed it. In interstate drug stop cases, this means that law enforcement must establish that there is probable cause, (well grounded facts), to believe that there are illegal narcotics or contraband in the vehicle.
Often when law enforcement is searching for marijuana, methamphetamine, or heroin, the state trooper or deputy sheriff will ask the motorist, after the traffic stop has been concluded, whether he is willing to answer additional questions. The purpose of asking the additional questions is to establish reasonable suspicion to detain the motorist until a drug dog can come and sniff the vehicle. If the drug dog (otherwise known as police service dog), is trained to detect the odor of narcotics, is reliable and indicates to the odor of narcotics, the vehicle may be searched without consent or without a warrant. Often, when drugs are found after the dog indicates to the odor of narcotics, both the detention and the drug dog’s indication may be challenged. The motorist not only has the right to challenge the reason for the traffic stop, but also whether there was reasonable suspicion for the detention, whether the delay in waiting for a drug dog was reasonable, whether the drug dog actually displayed the behavior necessary to indicate to the odor of drugs, whether the drug dog indicated, whether the drug dog was sufficiently reliable and trained for the dog’s indication to establish probable cause to search, and whether the dog was cued or somehow mishandled during the search. When the defendant’s Fourth Amendment rights are violated during an interstate stop involving a dog, interstate drug stop, the evidence of the unlawful search will be excluded from trial as evidence under what is known as the “Exclusionary Rule”.
A few months ago, we represented an individual in Omaha who was stopped for a minor traffic violation, following too closely. The police officer that stopped the driver had a drug dog in her car. The stop occurred at a busy intersection at Interstate 80 and 40 in Omaha. In that case, the federal court suppressed evidence obtained from the search of the defendant’s vehicle. We made two arguments in that case:
1. There was not reasonable suspicion to detain the defendant based on answers he gave to the police officer’s questions during the stop, and
2. The delay in waiting for a drug dog was unreasonable.
In this specific case, the defendant only had to wait for about 15 minutes for a drug dog. However, at the suppression hearing, we established that there were several law enforcement agencies in Omaha and several officers who could have assisted. The officer wanted to have assistance for her safety and the dogs, but it was unreasonable that the driver would have to wait for 15 minutes for a law enforcement officer to arrive at one of the busiest intersections in Omaha. The fact that the stop took place in Omaha was important to the case. The courts have held that detentions of over an hour could be reasonable in rural areas. However, the facts of this specific case occurred in Omaha where there were several law enforcement agencies and law enforcement officers who could have arrived at the scene in a few minutes, but for some reason, failed to do so. In this case, for several reasons, the evidence was suppressed.