Any drug lawyer worth his or her salt knows that the Fourth Amendment is the central issue in any interstate drug stop case. That means the government must show that the evidence acquired from every aspect of the traffic stop—the questioning, search, detention, and even the stop itself—must be lawful when used to prove the defendant’s guilt. Probable cause must be established to believe that a traffic violation occurred or that there was a reasonable suspicion of criminal activity.
In some cases, a drug lawyer can successfully argue that the officer made a mistake and did not have probable cause to stop the vehicle, because the driver’s conduct did not constitute a traffic violation—though most of the time, the incident is recorded on the cop car’s front dash video. What occurs after the stop may seep into more of a grey area, however. The individual that was stopped could have been subjected to irrelevant questioning and unnecessary and unlawful detainment during a minor traffic violation. Here are some examples of how police take advantage of drivers and use dirty tactics to procure information and evidence.
Many times, Nebraska police will ask the driver for permission to search the vehicle. If the police officer does not get the consent they are looking for, a drug dog will often be summoned to sniff the air around the vehicle in order to give them probable cause to conduct a search. Unlawful detention occurs if the officer does not have reasonable suspicion to detain the driver until the drug dog arrives.
The Unlawful Search
Even if law enforcement has reasonable enough suspicion to detain the driver, this does not mean that they have probable cause to search. The officer may ask the driver’s companion for permission to search their bags, and when the companion alone gives permission, but the officer proceeds to search the driver’s bags without his permission.
Police cannot unreasonably detain someone during a routine traffic stop, and once it is complete, the driver is free to go. The only time law enforcement can hold an individual is if they have reasonable suspicion to believe that criminal activity is afoot or have probable cause to arrest. Sometimes a cop will ask a lot of questions during the traffic stop to build suspicion, including questioning everyone in the vehicle what their travel plans are.
If law enforcement has reasonable suspicion that the driver or other passengers are involved in criminal activity, they may detain all the occupants in the vehicle and call for a drug dog to establish probable cause to search—but the duration of the detention must be reasonable. The real question becomes whether the officer had reasonable suspicion to detain in the first place. Many times, the officer’s hunch can be contested in court.
If valid consent to search is not given or probable cause is not established, law enforcement will more than likely call the drug dog to the scene to sniff the vehicle. Though trained very well, drug dogs are not always accurate. In some cases, the evidence obtained by using a drug dog may be suppressed if the animal is found to be unreliable or found to have not indicated drugs.
Drug dogs trained in Nebraska are used as passive indicators, meaning that when the animal walks around the car it will look for the source of contraband. It will then show an interest in what handlers refer to as an “alert.” The dog sits down at the location where the odor is the strongest, as a kind of indication. It can be proven in some cases that the dog did not sit down or was either intentionally or unintentionally cued by the dog handler.
It must be established that the dog’s sniff is reliable and that it gave probable cause to search. Many times, it is very useful for the defense to hire an expert witnesses to help analyze data to provide an outside perspective. Through this method it can be determined as to whether the dog was accurately trained.
The Inherent Unreliability of a Drug Dog
Drug dogs are trained to alert to the odor of narcotics, but many times they can falsely indicate an odor where no drugs are present because they are only indicating the presence of an odor. If a drug dog alerts to the smell of marijuana, it could be that a person riding in the vehicle smoked marijuana and had the scent on their clothes. On the other hand, if it has been shown through other cases that the dog was accurate in the past, the dog will likely be found reliable by the court.
Other Probable Cause
Another reason for probable cause to search is if the driver says that he only has a personal amount of marijuana. Then, the officer then may search the entire vehicle for admitting to that personal use. In the past, Nebraska law enforcement has been shown to badger drivers about their personal marijuana use so relentlessly that their Fifth Amendment rights of protection against self-incrimination were in jeopardy. In this case, their drug lawyer can have the statement successfully thrown out as evidence.