Are Dog-Sniff searches during traffic stops lawful?

Law enforcement often searches property on pretext, based on a hunch or a hidden bias, without a pre-approved warrant issued by a magistrate. In our firm's criminal defense practice, police procedure and tactics are thus closely scrutinized as to possible Fourth Amendment violations following seizures of currency, narcotics, or other evidence used in the pending state or federal case.

Vehicle stops frequently lead to a search without a warrant, and recovery of evidence. In the recent case of People v. Ernesto Ayon (Court of Appeals No. H047360), the Sixth District Court of Appeals reversed the conviction of a defendant who pled guilty to five drug-related offenses after his motion to suppress evidence was denied by the trial court. Ayon argued that law enforcement had violated the Fourth Amendment's protection against unreasonable searches and seizures by unlawfully extending the duration of his pretextual traffic stop for minor traffic infractions to allow time for them to complete a sweep by a drug-detecting dog. The Court of Appeals agreed that the delay created by the officers to allow for the dog sniff was unreasonable, and therefore the trial court erred in denying the motion to suppress.

The Ninth Circuit Court of Appeals reached a contrary conclusion in United States v. Nault (9th Cir. Case No. 20-30231) where the majority found, over a strongly-worded dissent by one member of the three-judge panel, that the detention of a motorist in a parking lot was permissibly extended long enough to facilitate the dog sniff first by the need to obtain the driver's license and registration and then by the officer's observations of the driver's intoxication during that process. The different outcomes in Ayon and Nault illustrate the fact-bound nature of the Fourth Amendment inquiry specifically as implicated in traffic stop cases.

In the first case, defendant Ayon was driving around San Jose around 9:00 p.m. when multiple police vehicles began to follow him. As he approached an intersection, he crossed over the line into the bicycle lane for about 50 to 70 feet before the painted traffic lines indicated it was lawful to do so. He turned on his right-hand turn signal, but it failed to illuminate until his vehicle touched the crosswalk. While these are both citable traffic infractions under California law, officers would later all but admit, and the Court of Appeals found, that the ensuing traffic stop was a pretext to seek evidence of more serious crimes.

The Court of Appeals' opinion is notable for the minute-by-minute breakdown of the traffic stop, based primarily on body camera footage, which is critical to its analysis of the Fourth Amendment issue. Under well-established law, a traffic stop begins at the moment a vehicle is pulled over and may last no longer than necessary to effectuate the legitimate purposes of that stop: to address the traffic violation on which the stop is predicated and to handle any related safety concerns. Certain additional tasks which are routinely performed, such as warrant and license checks, are also permissible. Police cross the line into an unconstitutional detention of the suspect when they fail to diligently pursue means of investigation reasonably designed to quickly confirm or dispel their suspicions regarding the subject of the investigation. In other words, when police in any way prolong the stop the engage in a fishing expedition in the hopes of securing evidence of unrelated offenses, the resulting evidence is obtained in violation of the Fourth Amendment, and must be suppressed.

Less than three minutes into the stop, Ayon had provided his license and registration information, which the officers transmitted to dispatch along with his license plate number. About three and a half minutes into the stop, the officers ordered Ayon out of his vehicle and began questioning him. At three minutes and thirty-two seconds, dispatch advised the officers that Ayon's license was valid. After this, an officer ordered Ayon to the back of his vehicle where he informed Ayon that the reason for the stop was the bicycle lane infraction.

At four minutes and twenty seconds, officers asked Ayon if they could "take a quick look" into his vehicle. Ayon responded by asking why they would search his vehicle over a simple moving violation and inquired whether he could receive a ticket and get on his way. Ayon asserted that the law would not allow a search under these circumstances and a debate on that point ensued. An officer accused Ayon of being "hostile" and "confrontational," for refusing consent to search. At six minutes into the stop, Ayon explicitly denied consent to search.

Immediately after he denied consent to search, Ayon was handcuffed under the pretext that his detention was necessary because of the way he was acting, i.e. failing to acquiesce to the request to search the vehicle. About eight minutes into the search, an officer asked whether a "narco dog" had yet been requested. Officers next began to question Ayon about whether he had used drugs, which the court later found to be an additional pretext to extend the duration of the stop. The drug-detecting dog arrived at about twelve minutes and forty-five seconds into the stop. The dog alerted officers to the suspected presence of drugs around nineteen minutes into the stop, at which point officers searched the vehicle and found substantial amounts of multiple narcotics and related paraphernalia.

The Court's analysis is a straightforward application of the well-established principle that the legitimate justification for the stop ends once diligent efforts bring the investigation into the basis for the stop have either confirmed or dispelled the officers' suspicions. Here, officers obtained Ayon's license, registration, and license plate number in two minutes and thirty seconds and transmitted that information to dispatch to check for warrants or license issues, which is justified in any traffic stop. They received a negative response about one minute later. At that point, all that was left was to write up a citation for the bicycle lane and right-hand signal violations and send Ayon on his way. Instead, officers prolonged the stop by another sixteen minutes to allow the drug-detecting dog to complete its sniff procedure.

Several additional arguments raised by the Attorney General on appeal and by the concurring opinion in the Court of Appeals are noteworthy. First, the Court rejected the argument that Ayon himself extended the length of the stop by being argumentative with the arresting officers. It found that Ayon was within his rights to deny consent, did not raise his voice, and made no hostile, threatening or aggressive movements. The officer's displeasure with being denied consent to search did not justify prolonging the stop. Second, the Court rejected the Attorney General's suggestion that the need to perform sobriety checks was a legitimate reason to extend the stop. It found no substantial evidence that Ayon was impaired in any way, such as slurred speech, inability to stand normally, confusion, etc. In a quote which DUI defense attorneys may wish to reference in future cases, the Court of Appeals found that Ayon did not act any more nervously than a typical person in a traffic stop.

Finally, one judge on the three-judge appellate panel concurred in the judgment that the traffic stop was unconstitutionally prolonged, but found unnecessary and irrelevant the majority opinion's discussion of the pretextual nature of Ayon's traffic stop. The majority noted that the officers were involved in a pre-existing drug investigation and had almost certainly pulled Ayon over to further that investigation, not to issue traffic citations. While the majority's inclusion of this analysis is a boon to the defense bar, the concurring opinion correctly points out that well-established United States Supreme Court precedent holds that an officer's subjective reasons for initiating the stop are wholly irrelevant, as the Fourth Amendment's protections extend only to unreasonable searches and seizures, which is an objective, rather than subjective, criterion. Just as an officer's improper motivation for stopping a motorist does not transform an objectively justifiable stop into an unlawful one, his proper motivation for stopping a motorist does not transform an objectively un-justifiable stop into a lawful one.

In Nault, the driver's encounter with police was initially the result of a mistaken identity. An officer working in a drug task force was notified that a vehicle of interest was located in a nearby parking lot. Police were aware that the vehicle was registered to, and was frequently driven by a suspect named Ross, whom they also knew to have outstanding warrants for her arrest. Two police vehicles blocked the vehicle into the parking space where it was located and approached the driver, who turned out to be Nault, not Ross. When officers asked Nault about Ross' whereabouts, he advised that she was at a nearby gas station.

About twenty seconds into the encounter, officers asked Nault for his license, registration and proof of insurance. While attempting to retrieve the documents, Nault appeared fidgety, made sporadic movements, had visibly constricted pupils, and was sweating profusely despite it being a chilly day. About a minute into the encounter, officers asked Nault if he was under the influence of alcohol or drugs, which he denied. They proceeded to conduct a DUI investigation including a pat down, which yielded a marijuana pipe and brass knuckles. Nault was arrested for possessing these items. After his arrest, a drug detecting dog was alerted to the vehicle and a subsequent search warrant based on the dog alert yielded a pistol and a large amount of methamphetamine.

Nault moved to suppress the evidence as fruits of the dog sniff, which he argued was unconstitutional as the encounter should have ended immediately upon the officers learning that Nault, not Ross, was the driver of the vehicle. Nault, and the dissenting judge in the Ninth Circuit, reasoned that the only legitimate purpose of the stop was to arrest Ross on her outstanding warrants and once that purpose could evidently not be accomplished, any further detention was unjustified.

The majority based its ruling in favor of the government on the inherent permissibility of requesting identifying information from motorists during a traffic stop. Asking for license, registration and proof of insurance, the majority explained, is always part of the "mission" of an officer in a traffic stop because it directly relates to the strong interest in protecting other motorists by ensuring detainees are safe to drive, and therefore any prolonging of the encounter for this purpose is permissible. Because the officers gained additional reasonable suspicion based on Nault's evident intoxication during the process of trying to obtain his identifying documents, the entire detention was of permissible duration.

The dissent conceded that obtaining identifying documents is a permissible reason to extend a traffic stop, but would have held that this was not a traffic stop at all. Nault was parked in a parking lot, not driving on a public way. He was approached based on the suspicion that Ross was in the vehicle, not because of any observed traffic infraction or other unsafe driving. The dissent argued therefore that all the precedents involving traffic stops were inapplicable to Nault's case and the encounter should have ended immediately upon the officers' discovery that Ross was not present.

The outcomes in Ayon and Nault are opposite, but not necessarily inconsistent. In Ayon, the officers did not form any suspicion to justify an elongated detention whatsoever. Ayon handed over his paperwork, which gave the officers everything they needed to write his citation and send him on his way. Beyond the pretext that he was "hostile," which the court discounted, no additional reasonable suspicion materialized during the extremely prolonged period while officers waited for the drug dog to arrive. In Nault, by contrast, the additional suspicion of intoxication, which the court did credit based on the officer's observations, materialized almost immediately during the process of trying to obtain Nault's paperwork. To be sure, there was no traffic citation which would have been written for Nault as he was not suspected of bad driving, but the Ninth Circuit held based on numerous prior cases that obtaining identifying information from a motorist is always a legitimate part of a traffic stop. The dissent's argument that the encounter was not a traffic stop at all did not persuade a majority of the panel, and therefore Nault's conviction was upheld.