The answer will vary depending on the reason for the stop. However, in Georgia, law enforcement officers can prolong the length of the encounter by requesting permission to search the vehicle where the driver has been told that she is otherwise free to leave. In State v. Terrell, (A14A0012), the Georgia Court of Appeals distinguished this type of permissible conduct from an illegally prolonged traffic stop.

In the recent Terrell case, an investigation started when one officer initiated a radio communication to another officer who was working a normal traffic patrol shift. The first officer had reason to believe that a particular vehicle was involved with drug activity. He asked the patrol officer to watch that vehicle and see if he could find any reason to justify a traffic stop.

The patrol officer found the vehicle and noticed that it had a small crack on the windshield – one that was large enough to plausibly obstruct the driver’s view. The patrol officer turned on his lights and pulled the vehicle over for this minor equipment violation.

It should be noted at this point that officers are permitted to initiate a traffic stop for any legal infraction, even when they are more interested in investigating a more serious crime. Law enforcement needs very little justification in order to initiate a traffic stop.

The patrol officer approached the driver’s side window and asked for her license. It took all of 3 minutes to complete the license check (showing that the license was valid). Then, after the back-up officer arrived, the two officers discussed how they could convince the driver to give them permission to search the car.

They decided to stall for time by investigating the passenger. The officers retrieved his identification and ran a check on him – which came back clean as well. Finally, the driver was asked to exit so that they could explain the windshield ticket to her and get her signature. After that was completed the driver was told that she was free to go. The traffic stop took all of eleven minutes.

However, it was at this point that the lower trial court believed that the officers had overstepped their legal authority when they asked the driver to search the vehicle. The driver was reluctant. She told them she had somewhere to be. They insisted it would only take 5 minutes. She finally relented and gave the officers permission.

The passenger was asked to step out of the vehicle. He complied, and as he exited, he casually threw a Styrofoam cup into a nearby trashcan. The search of the vehicle yielded no results and the driver and her passenger were permitted to leave. It was only after they left the location that the officer decided to look in the trashcan. There he discovered a glass pipe and several baggies of suspected methamphetamine. The passenger was later arrested and charged with trafficking methamphetamine – a very serious felony drug charge.

The trial court suppressed the drug evidence discovered in the trashcan – which would have resulted in the case being dismissed. However the prosecutor appealed and the Georgia Court of Appeals reversed the trial court’s decision.

Critical to their analysis, the Court of Appeals found that because the driver was told she was free to go prior to the officer’s request to search this set of facts did not present a “prolonged” traffic stop. In other words, had the officer failed to notify the driver that she was free to go, the request to search would have improperly exceeded the scope of the initial detention (cracked windshield).

Recently, the Georgia Court of Appeals held, in Richardson v. State (A14A0409) that a physical search of a driver, who had been pulled over for failing to maintain his lane was proper, where a K-9 drug dog had alerted to an odor coming from the driver’s car – after the driver had already exited the vehicle. The K-9 had alerted – which means indicated to its handler – that it smelled some type of contraband by the driver’s side of the vehicle. Upon searching the vehicle the officer merely found an open beer can.

Assuming there must have been something recently in the car that had caused the odor, the officer then turned to the driver and searched his person. Normally, in the absence of a drug dog, the officer would not have been able to perform this type of search unless he had a reason to believe the driver had a weapon on him.

Why is this type of use of K-9 drug dogs to justify a search a problem? Since K-9’s lack articulable language skills, their response during a “sniff-search” in any given situation is subject to their handler’s interpretation.   This is not to say that a K-9 cannot often communicate very clearly in a manner that would be universally understood.  For instance, most would agree that many dogs can exhibit “danger” signals which will not be easily misconstrued. However, the type of behavior exhibited in the case discussed here requires a level of interpretation that could readily be manipulated (even inadvertently) to serve the interests of the K-9’s handler as opposed to providing reliable and accurate information.

A K-9’s ability to reliably identify contraband is periodically tested for accuracy and this can be reflected by a K-9’s “certification.” However, the manner in which they are often evaluated is highly subjective and can be unreliable.  For instance, one way to evaluate a K-9’s accuracy is by calculating the number of false positives it has returned in real-life scenarios. When a K-9 alerts despite the absence of contraband – returning a “false positive” — the dog’s handler will frequently defend the K-9 by attributing the false positive to invisible “trace residue” that may have left a lingering odor on whatever item it was that caused the K-9 to alert.

One study out of Illinois reported that K-9 searches had an accuracy rate of 32% — meaning, that of the approximately 100 K-9 searches that were conducted between 2007 to 2009, only 32% of the alerts that handlers received turned out to have been accurate.

This is not to suggest that law enforcement should completely discontinue the use of K-9’s during investigations. However these issues raise serious questions regarding the current use of K-9 alerts to establish probable cause to support a search. Normally a police officer is not permitted to perform a warrantless search of a car or an individual without reliable information that a crime is being committed. What the Illinois study suggests is that there are very real reasons to question the reliability of K-9 searches, especially when the reason to search is based solely upon a K-9 alert.

 

Breath testing has come a long way since the first breathalyzer was released in 1958.

Law enforcement is currently developing technology that would allow the police to estimate the blood alcohol content (“BAC”) of a driver by analyzing the breath sample from outside a moving vehicle.

The developers of the new technology are claiming that through the use of laser technology, the device can determine if the driver’s BAC is in excess of .10 – which is greater than the legal limit in most states.

Novel BAC detectors are not new to the industry in the last decade. For instance, in 2011 some Georgia police departments started using breath-analyzing flashlights. The flashlights look like any other normal flashlight, yet when held 5 to 10 inches from the driver’s mouth, it can signal whether the driver has been drinking a small, moderate or large amount of alcohol.

What is new about this latest laser technology is that it may be used to serve as a legal justification to stop a vehicle and conduct a DUI investigation – whereas the old technology was generally only useful during a DUI investigation that had already been initiated.

This could create problems for law enforcement unless the new device can be shown to have enough reliability to create what is termed “reasonable articulable suspicion” for the traffic stop.

For example, one of the weaknesses of the technology is that it may not be able to distinguish between the BAC of a passenger versus the BAC of the driver. This would be particularly problematic for law enforcement officers attempting to justify a traffic stop of vehicles with more than one person in the car.  Because it is not illegal for sober drivers to have impaired passengers, a traffic stop based solely on this technology may not satisfy the constitutional requirements of the Fourth Amendment.

Another flaw suggesting the inherent unreliability of the technology is the laser’s inability to distinguish between a spilled amount of alcohol and the alcohol being emitted via the driver’s breath. The laser’s accuracy could also be drastically affected by the air conditioner, the fan or open windows.

Until such reliability concerns are adequately addressed by the manufacturers, we are not likely to see the use of this laser technology being relied upon to justify the stop of a vehicle. In all likelihood, at least while the technology is in its infancy, we are more likely to see it being used by the police to initially identify problematic drivers and follow them to observe any unsafe driving maneuvers that are traditionally relied upon to justify a traffic stop and initiate a DUI investigation.

However, if recent history has taught us anything, it is that this technology is developing at an ever-increasing pace. After the first breathalyzer hit the market in 1958, it wasn’t until 1967 that the first electronic breath testing device was developed. The next milestone wasn’t for another 12 years, when in 1979 the Alcolyser was introduced to the market. Thereafter we saw technology making marked improvements once every decade.

In the most recent 5 years however, the speed of development and the proliferation of technologies has been remarkable. The increasing focus on safe driving and eliminating drinking and driving entirely — along with increased government spending has fueled a profitable business industry aimed at creating tools to increase DUI enforcement.

Generally speaking, the United States Constitution protects individuals from unreasonable searches by law enforcement. However, the definition of an unreasonable search varies. In order to understand what your rights are, it is helpful to examine how the courts determine what is an unreasonable search.

One of the first and most important questions that must be answered is – where was the police officer standing when he looked through the residential window? Is the window visible from the street, or was the officer standing in the yard – also known as “curtilage“ – when he peered through the window.

The definition of reasonableness can hinge on whether the officer was authorized to be standing where he was when he looked through the window. The courts recognize that individuals do not have an absolute right of privacy in their yard, in part because the general public has access to certain parts of your yard.

For instance, the UPS deliveryman would be authorized to deliver a package by walking on the designated pathway to your front door. As a result, the courts generally recognize that the path a delivery person could use to approach your front door is also available to law enforcement. Thus, if an officer happens to see illegal activity through a window while walking along the path to your front door, then he is legally authorized to make an arrest, or initiate an investigation based upon that information.

However, if that same officer walks around to the back of the house and peers through a window, such a search would normally be deemed unreasonable and he would not be able to use any of the information he obtained as a result of that illegal search.

This is very similar to what occurred in the case of Arp v. State, A14A0390 (decided June 3, 2014). There, the Georgia Court of Appeals examined a series of events that resulted in the arrest of a home owner for having a large amount of marijuana that was visible only through a backyard window.

In Arp, the police were not looking for drugs. Rather they were chasing a suspect – Mr. Watson – who had an active arrest warrant for misdemeanor obstruction of an officer (a relatively low-level offense). Watson was trying to avoid the police, and law enforcement learned he had been picked up by a friend in a red car earlier that day. The police ran a search on that friend and found a last known address for her. They went to that address and observed a red car parked out front.

The police knew Watson had a reputation for running from the police, so in order to prevent him from escaping them, they entered the property and split up – some agents in the front and others positioned in the back to catch Watson if he tried to run. The agents in the backyard did not see Watson. However, when they peered through the window, they did see a woman hiding a container of marijuana. They entered the home, and instead of finding the fugitive they had originally been searching for, they arrested Arp for possession of marijuana.

Arp challenged the illegal search in court. Arp argued that the officers were not authorized to be in his backyard. As it turns out, Arp had no connection with Watson – the person the police were originally chasing. For Arp, it was simply an unhappy coincidence.

The Court of Appeals reversed the conviction for marijuana possession – declaring this search, through Arp’s back window to be unreasonable under the Fourth Amendment of the Constitution.