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The continued stink of drug dog sniffs

Dec 28, 2009 The continued stink of drug dog sniffs

Image from the NIH’s website.

In the past, I have blogged about drug dog sniffs, including the following items:

– “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 410 (2005).

Telling a person of the coming of a drug dog amounts to a Terry  stop, which requires reasonable articulable suspicion, since a reasonable person would not feel free to leave at that point.

– Being animals — humans, too are animals — sniffing dogs are fully fallible.

Add this to the mix: New York is among the states whose courts give more state constitutional protection against dog sniffs than does the United States Constitution: “For the reasons that follow, we conclude that while the use of such dogs does not implicate the protections of the Fourth Amendment, our State Constitution requires that the police have at least a reasonable suspicion that a residence contains illicit contraband before this investigative technique may be employed.” People v. Dunn, 77 N.Y.2d 19, 21, 564 N.E.2d 1054 (1990), cert. denied, 501 U.S. 1219 (1991) (referencing N.Y.S. Const. art I, § 12). (Thanks to fellow listserv members for having addressed this and other cases and ideas on the dog sniff search constitutionality issue).

The Maryland Court of Appeals references the foregoing People v. Dunn opinion in continuing to steadfastly refuse to interpret Maryland’s Fourth Amendment equivalent any more broadly than its federal counterpart. Fitzgerald v. Maryland, 384 Md. 484, 507, 864 A.2d 1006 (2004) (“Article 26 of the Maryland Declaration of Rights is to be interpreted in pari materia with the Fourth Amendment”).

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