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Limits on Canine Searches

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drug dog

Drug dog image from the NIH’s website.

A canine search by police sometimes is invalid simply because too much time elapses for the canine to arrive. Maryland v. Paul Andrew Mason, Jr., Sept. Term 2006, No. 1661 (Md. App., March 27, 2007)

This Mason case addresses “how long a person may be detained following a valid traffic stop in order to process the traffic stop,” which in this case was a traffic stop made with the intention to carry out a drug investigation. Whren v. United States, 517 U.S. 806 (1996) (generally permitting police to make otherwise lawful traffic stops even if the purpose of the stop goes beyond enforcing traffic laws).

Maryland’s’ Court of Special Appeals affirmed the trial court’s suppression of a canine search of defendant’s car, due a 25-minute delay in stopping the car and the arrival of the drug-sniffing canine. The Court said:

“We must never lose sight of our starting point that warrantless searches and seizures, including the ongoing seizure of a person at the curbside, are presumptively unreasonable and that the burden is on the State to rebut that presumption and persuade the suppression hearing judge otherwise. It is not the judge’s job to devise the best strategy and to research the supporting law on behalf of the State in order to persuade himself. The judge is not the prosecutor’s law clerk. To do those things is the State’s burden, not the judge’s burden.

“In determining the reasonableness of a period of detention, at least two critical findings of fact must be made. One involves measuring the duration of the detention. How much time elapsed from the initial stop of the appellee until the K-9 alert on the vehicle? The State’s best version of the evidence established that detention as one lasting about 10 minutes. The appellee’s best version of the evidence established it as one lasting between 23 and 25 minutes. Because the appellee was the prevailing party, we accept as established truth the fact that the detention lasted for 25 minutes. Any de novo determination we may be called upon to make will be based, as a matter of course, on that fact. Another necessary finding of fact is that of how diligently the stopping officer worked in processing the traffic warning. If Officer Tringler was proceeding with due diligence to write and to issue the traffic warning, the length of the detention was, by definition, reasonable. If, on the other hand, Office Tringler was stalling in order to facilitate the arrival of the K-9 dog, the length of the detention was, by definition, unreasonable. Whether Officer Tringler was or was not stalling is not something that can be established, as a matter of law. It is something that must be found, as a matter of fact, from the totality of the circumstances.” Jon Katz.