Despite Recent Court Rulings, Getting Behind The Wheel Is Pretty Much Kissing Your 4th Amendment Protections Goodbye

by Tim Cushing
Aug. 10, 2015

There's been more good news than bad concerning the Fourth Amendment recently. In addition to the Supreme Court's ruling that searches of cellphones incident to arrest now require a warrant, various circuit court decisions on cell site location info and the surreptitious use of GPS tracking devices may see the nation's top court addressing these contentious issues in the near future. (The latter still needs to be addressed more fully than the Supreme Court's 2012 punt on the issue.)

Generally speaking, the Fourth Amendment has been at least partially restored, much of it due to the courts being more willing to address the implications of technological advances and the bearing these have on the expectation of privacy.

But one area -- pertaining to technology dating back over 100 years and used by millions on a daily basis -- remains under-served: vehicles. As we've discussed before, the "motor vehicle exception" allows law enforcement to search an entire vehicle, along with its contents, without a warrant, provided they have probable cause to suspect contraband is hidden in it. An outright refusal to allow a search may result in the securing of a warrant, but the law is riddled with so many law enforcement-friendly exceptions that the use of a warrant is the exception, rather than the rule.

This is a small part of a larger problem. While the Supreme Court did declare that law enforcement officers weren't allowed to artificially prolong routine traffic stops in order to perform further queries/searches, it also wrote them a blank check for abuse with the Heien decision.

Drivers need to be on top of traffic laws, but cops don't.
As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 573 U. S. ___, ___ (2014)…To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.”
This meshes with the "good faith exception," another out for police officers that ignore the Fourth Amendment. Cops can basically stop your for any reason and use that stop to fish for additional criminal charges. They have to be a bit quicker about it, thanks to the Rodriguez decision. But they won't have to be any better at their jobs and they are not expected to know the laws they're enforcing.

Ken Armstrong at Vice has a long rundown of cases where results of searches related to traffic stops were suppressed due to officers' ignorance of the law but later reinstated to legitimacy by the Heien decision. Here's one of them:
When a police officer in the Village of East Troy (4,281 residents, 18 miles of roadways, 500 manholes, according to its quarterly newsletter) pulled over Richard Houghton's blue Ford Taurus, the officer was ignorant of the law in at least two ways. He thought the car needed a front license plate (in this case, it didn't), and he thought the car's air freshener was illegal, believing any object dangling from a rear-view mirror automatically violated the state's law on obstructing a driver's view (not so). Nonetheless, the Wisconsin Supreme Court decided that the marijuana and drug paraphernalia found in the officer's subsequent search of the car would not be thrown out. Just one year after it had ruled the opposite in another case, the court decided that in light of Heien, mistakes of law by police could now be forgiven, if reasonable.
Notably, automobile air fresheners are one of law enforcement's favorite "reasonable suspicion" indicators. The only reason for anyone to have a prominently-displayed air freshener (or multiple fresheners) is to cover up the smell of illicit drugs. Not every court has bought this theory, but enough have been willing to consider this -- along with other questionable "suspicious" actions like being nervous, talking too fast, talking to slow, making eye contact, not making eye contact, etc. -- as part of the constructed totality of reasonable suspicion.

Once an officer has this, he can quickly convert it to probable cause. With reasonable suspicion, an officer can often bring in a drug-sniffing dog -- the search that isn't a search -- to obtain the probable cause for a complete roadside search.

But drug dogs are no more reliable than the average police officer's command of traffic laws. A recent Seventh Circuit Appeals Court decision affirming the conviction of a man found with 15 kilos of cocaine in his vehicle took a bit of time to question the reliability of Lex, the drug dog that alerted prior to the search of the suspect's vehicle.
In Larry Bentley’s case, a police officer initiated a traffic stop after observing Bentley’s vehicle cross into another lane on an Illinois highway without signaling. After stopping Bentley, the officer decided to call for a drug-detection dog named Lex. Once on the scene, Lex alerted, and the officers found close to 15 kilograms of cocaine in the vehicle.

But what if Lex alerts every time he is called upon? The fact that drugs are (or are not) found would have nothing to do with his behavior. That, in essence, is what Bentley is arguing here. The evidence Bentley was able to gather suggests that Lex is lucky the Canine Training Institute doesn’t calculate class rank. If it did, Lex would have been at the bottom of his class.
The ruling contains some very damning details about Lex, who alerts so often he should just be renamed "Probable Cause."
In pressing his challenge to the dog’s alert, Bentley makes two principal points. First, he contends that Lex’s past performance in the field suggests he is particularly prone to false positives (i.e., signaling to his handler that there are drugs in a vehicle when there are not). He has a point. Lex alerts 93% of the time he is called to do an openair sniff of a vehicle, and Lex’s overall accuracy rate in the field (i.e., the number of times he alerts and his human handler finds drugs) is not much better than a coin flip (59.5%).
This dog is a coin flip for contraband. But he's great at "authorizing" a warrantless search. He's a police officer's best friend -- especially those that hope to turn minor traffic violations into something worth the paperwork. If an officer requested Lex, more than 9 times out of 10, he got to search the vehicle.

Unfortunately for Bentley and countless other citizens, the fallibility of drug-sniffing dogs isn't anything they can use in their defense. From the Supreme Court on down through the various circuits, judges are waking up to the fact that drug dogs are more interested in pleasing their handlers than being an objective investigatory method (as is to be expected from nearly any domesticated animal), but more often than not, will side with law enforcement on drug dog "alerts."
Bentley rightly points out that Lex is smart. Shively testified that he rewards Lex every time the dog alerts in the field. Presumably the dog knows he will get a “giftee” (a rubber hose stuffed with a sock) every time he alerts. If Lex is motivated by the reward (behavior one would expect from any dog), he should alert every time. This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause.
But despite seeing the conflict here, the court finds that Lex is still a good dog yes he is, and the permission he granted the officers to perform a more intrusive search is probably probable cause -- or close enough to it that the other exceptions (good faith, etc.) swallow up Bentley's protests to the contrary.
Nevertheless, in light of the Supreme Court’s decision in Florida v. Harris, 133 S. Ct. 1050 (2013), which addressed the use of drug-detection dogs, we conclude that the district judge did not err when he decided that Lex’s alert, along with the other evidence relating to the stop, was sufficient to support probable cause. Bentley’s other two challenges based on the traffic stop and his alleged lack of knowledge of the cocaine in the vehicle also fail. We thus affirm his conviction.
Combining drug dogs, Heien, Rodriguez, the "motor vehicle" and "good faith" exceptions, and you have a significant gap in Fourth Amendment coverage. Get in a car and kiss most of it goodbye. A cop can pull you over for nearly any reason and use this pretense to perform a dog-and-officer act that almost guarantees the generation of "probable cause." Once this is achieved, everything in the car is subject to the search. If it isn't (like a cellphone or a GPS system), this won't be worked out until the arrestee is granted the chance to move to suppress evidence. There's no stopping the search. There's only the much smaller chance (at least compared to Lex's magic nose) that the evidence will be tossed, along with the charges.

The only thing standing in the way of this abuse is the vague stopwatch of Rodriguez. Officers can't artificially extend stops past the point that the objective has been achieved (ticket/warning issued). But there's no specific time limit for officers to reach this concluding point, which means this will be adjudicated on a case-by-case basis.

If this is the only limitation, the Fourth Amendment means next to nothing if a citizen is behind the wheel. Not only is the Fourth Amendment supposed to protect against illegal searches, it's also supposed to prevent illegal seizures. And in the definition of this amendment, a seizure includes the sort of detainment a traffic stop is.
A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.
Heien allows the seizure to take place, completely without justification. Everything else allows this seizure to be refashioned into something far beyond a ticket for a broken taillight or "crossing a lane divider without signalling." Technically, a citizen should be free to leave once a ticket/warning is in their hands. But how many will when the officer is still leaning in the window, asking questions unrelated to the traffic stop? Roughly zero. Any person who starts moving a vehicle before an officer returns to their own risks being nailed with additional charges/bullets/etc.

The legal interpretation is the ideal. The real world interpretation is nothing like it. A court may feel a traffic stop was over at point X, but the person whose vehicle was tossed after a drug dog appeared "alerted," signaled his or her "consent" to the search by not stomping on the gas pedal the moment the officer handed over the citation.

Because of everything tied into the vehicle nexus, people are being subjected to Fourth Amendment-violating searches and seizures every day. Legal precedent puts the odds in law enforcement's favor. And what's the worse that happens to cops who violate the Fourth Amendment? They lose a bust or two. But there's millions of drivers on the road. They can always find more people to arrest. And they can start this chain of events by citing laws that don't exist and further the intrusion by bringing in a four-legged cop to give them the permission to override a citizen's refusal to allow a search.

So, while it is heartening to see more court decisions tackling technology in a more logical fashion, something that's been with us for more than 100 years remains a legal blind spot.

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