Generally, most lawyers would say yes. If an officer decides he wants to conduct an “open-air search” by walking a K-9 around your car during a traffic stop, normally that is permissible.

The idea behind this kind of search is that a driver has no reasonable expectation of privacy when it comes to the air around a vehicle. Since – theoretically – Joe Q. Public would be able to “sniff” the air around the car, there is nothing to prevent a police officer from using his drug dog to do the same.

However, this entitlement is not without exception. On August 13, 2014, the Georgia Court of Appeals sharply limited law enforcement’s ability to conduct these kinds of open-air searches during traffic stops in Bodiford v. State (A14A0683).

In October of 2012, Bodiford was pulled over for speeding 10 miles per hour above the speed limit. For those familiar with Georgia speeding enforcement, it is fairly routine for drivers to exceed the speed limit by 10-12 mph or so, without significant fear of being pulled over. The fact that Bodiford was targeted for this type of traffic stop for a relatively minor infraction at 6:40 pm could be described as somewhat unusual.

At the hearing, the officer described Bodiford as very nervous. He was observed to be sweating excessively, breathing heavily and shaking a bit. The officer had Bodiford exit the car while he issued a written warning. Bodiford signed the citation (which usually is an indicator that the purpose of the traffic stop has been resolved and the encounter has ended), but the officer did not turn the warning over to him. Rather he held onto the ticket and then started questioning Bodiford about the status of his license.

The officer then decided to run a license check. At that point he began to question Bodiford about what was in his car. He asked if there was any contraband. Bodiford told him there was not. The officer asked permission to search his car. At this point Bodiford inquired about his rights – was he required to consent to the search?

In response, the officer goes to his patrol car to retrieve his K-9. This is 9 minutes into the stop. Luckily there is a video of this traffic encounter and dispatch can be heard trying to notify the officer that the license check came back as valid. However the officer ignored dispatch because he wanted to conduct the open-air search.

The K-9 alerted – meaning the K-9 indicated it smelled drugs. And upon a subsequent search of the vehicle, a large quantity of cocaine was discovered under the passenger seat.

Bodiford was charged with trafficking cocaine – a very serious felony offense.

The Georgia Court of Appeals reversed the trial court’s decision, finding that the search was impermissible. The Court of Appeals found the officer’s conduct very questionable. The officer claimed he was having trouble communicating with dispatch and that was what resulted in the delay. However, the Court of Appeals points out that he had no trouble communicating the original license query and dispatch can be heard very clearly on the video attempting to get the officer’s attention.

Ultimately, the Court of Appeals found that the officer unconstitutionally prolonged the traffic stop. The officer had no additional reason to hold Bodiford – beyond his initial observations that Bodiford appeared nervous – and that was an insufficient reason to hold Bodiford beyond the permissible purposes of writing a ticket and checking his license.

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.