Violation of the 4th Amendment

By July 14, 2017 May 24th, 2019 blog post, Criminal Defense Detroit MI

Delaying a Traffic Stop for a Drug Dog is a Violation of the 4th Amendment

Here is the scenario… Defendant gets pulled over for a traffic infraction. During the course of the stop, the officer gets a hunch that there is an illegal drug in the car and asks for consent to search. The defendant declines. The officer calls for a drug dog and briefly detains the driver pending the outcome of the search by the dog. The dog detects the scent of a controlled substance and the officers search the car finding evidence of a crime. Is the evidence admissible in court? The answer under Michigan and Federal law is NO!

In a recent decision by the Michigan Court of Appeals, People v. Kavanaugh, the Court of Appeals examined a situation where the driver was stopped by a Michigan State Police trooper based on two civil infractions. The driver recently purchased the car and did not have a registration. The officer directed the driver to come back to the patrol car and sit in the passenger seat while the officer verified his ownership of the car. The officer confirmed the driver’s ownership and then asked for consent to search the car. The driver declined. The officer told the driver to stay where he was and he called a drug dog for a contraband sniff. The dog arrived after 15 minutes, alerted at the trunk, and the officers found a large amount of marijuana.

The trial court denied the Defendant’s Motion to Suppress and the defendant was convicted. On appeal, he challenged the constitutionality of his detention by the officer after the point where it was verified that he owned the car. He argued that the search was illegal because there was not a reasonable and articulable suspicion of criminal activity at the point when he declined the trooper’s request to search the car. Articulable means capable of being explained with words.

The government argued there were various things that gave the officer a reasonable suspicion but the Court of Appeals found to the contrary. In the ruling, the court noted that a violation of a traffic law justifies a brief detention for addressing the traffic violation. If during the course of the stop, additional evidence becomes known that causes the officer to have a reasonable and articulable basis that a crime is being committed, the detention can be extended; however, the duration of the stop cannot be extended for the officer to investigate a hunch that criminal activity is afoot.

Any detention beyond that which is necessary to address the traffic issue is a seizure.

In making its ruling, the court found that any detention beyond that which is necessary to address the traffic issue is a seizure under the 4th Amendment. A seizure of a person occurs when a reasonable person would not feel free to leave. In Kavanaugh’s case, he was told to sit and wait for the drug dog and this constituted a seizure. If by the time the officer concludes resolving the traffic infraction, there is not a reasonable and articulable basis to suspect a crime is being committed, the suspect must be released. If the suspect is not released, any evidence found as a result of that continued detention is in violation of the 4th Amendment and must be suppressed.

Refusing to consent to a search CANNOT form the basis for reasonable suspicion. Courts are clear that any consideration of the suspect’s refusal or lack of consent is a violation of the 4th Amendment. Other things that cannot form the basis of reasonable suspicion include the driver acting nervous or statements of the suspect that do not make sense, unless the statements are about criminal activity.

So why is Kavanaugh not in prison and why was his conviction reversed?

The answer is…great lawyering! Legal representation that is not aggressive, effective and zealous results in wrongful convictions and unnecessary jail sentences. When a person is charged with any criminal offense, a felony or misdemeanor, having a top criminal defense attorney is critical and can make all the difference.

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