Dog Sniffs and Reasonable Suspicion (Part 4)

by | Jun 21, 2019 | Blog, Criminal Law

Justice Fernandez-Vina continued: In this case, it is established that the initial traffic stop was a lawful response to the Title 39 violations Detective Kazan observed.  Two determinations must therefore be made: whether the wait for the canine unit’s arrival prolonged Nelson’s traffic stop, and, if so, whether the delay was justified by independent reasonable and articulable suspicion that Nelson possessed drugs at that time. Regarding the first determination, “the critical question is whether conducting the sniff added time to the stop.” Id. at 536. Here, after Nelson denied the detectives consent to search his vehicle, the detectives then “added time” to Nelson’s traffic stop when they required him to wait thirty-seven minutes for the arrival of the canine unit.

The Court therefore considers whether a reasonable and articulable suspicion beyond that which justified the stop supported the canine sniff.  As Detective Kazan testified, he believed there was “reasonable articulable suspicion that there was crime afoot” based on the following factors:  (1) the initial tip from ATF; (2) the moving violations observed; (3) Nelson’s nervous behavior; (4) Nelson’s conflicting trip itinerary; (5) the lack of any personal belongings in the vehicle; (6) the large bags in the cargo hold; (7) Nelson’s admission of prior narcotics arrests; and (8) the overwhelming smell of air freshener. The detective’s observations, taking into account his training and experience, suggested criminal activity and provided the reasonable suspicion necessary to prolong Nelson’s stop to await the arrival of the canine unit.

These eight factors are all suspect to one degree or another, even if we give the detective the benefit of the doubt that he was telling the truth. The tip from the ATF came from an anonymous source. Therefore, there was no one to be held accountable if the tip was false. The moving violations have nothing to do with the possession of contraband. If anything, you would expect the driver of a vehicle carrying contraband to be extra cautious in order to avoid police attention. Our case law recognizes that it is natural to be nervous around police under the circumstances and nervousness in itself does not create a reasonable suspicion of criminal activity. Nervousness can also lead to a mis-statement about trip itinerary. Many people maintain tidy cars with no personal belongings in plain view. Many people carry large bags in their car and the defendant here gave a reasonable explanation for them. Many people have prior arrests for narcotics, in particular, marijuana possession. Here, the defendant was honest about his prior arrest. Lastly, many people use strong-smelling air fresheners in their cars.