The Montana Supreme Court will hear arguments this week about whether the use of a drug-sniffing dog during a traffic stop should be considered a legal search.
Prosecutors contend that because the dogs are sniffing out odors in the air, their use is not invasive. Some defense attorneys and privacy rights groups like the Montana chapter of the American Civil Liberties Union (ACLU) counter that the dogs can implicate innocent people, and that a search warrant should be required to use them.
The case scheduled to be argued before the court on April 12 involves a traffic stop in Billings in November of 1998. According to court records, Officer Jason Sery pulled over a white Camaro because its rear license plate was not illuminated. After running a routine background check on the three people in the car—Dennis Kubas, Richard Miller, and Evelyn Logan—Sery found that none had any outstanding warrants but that all had “drug histories.” Sery had dealt with Kubas in the past, court records show, and he “knew him to carry weapons and to be violent, especially when dealing with police officers.”
Sery radioed in Officer Steve Feuerenstein and his drug-sniffing dog, Igor. While Sery wrote up the citation for not having the rear plate illuminated, Officer Feuerenstein walked Igor around the vehicle.
“Igor alerted to the passenger-side door by barking and scratching,” according to a brief filed by the prosecution. “The officers removed Logan’s purse, which was resting on the back seat. Igor alerted again to the center console, and the officers removed three bindles [packets] from the console. The purse was searched, revealing two other bindles and a ‘snort tube.’ One of the bindles contained a white powdery substance which tested positive for methamphetamine.”
Logan was charged with one count of felony criminal possession of dangerous drugs and two counts of misdemeanor criminal possession of drug paraphernalia. She tried to get the evidence found by Igor suppressed in February of 1999, claiming the officer did not have a “particularized suspicion” that drugs were present. At a hearing in May of 1999, the Yellowstone County District Court denied Logan’s motion to suppress
In December of 1999, Logan pleaded guilty to misdemeanor criminal possession of dangerous drugs and the other charges were dropped. She was given a six-month suspended sentence. In January of 2000, Logan appealed the district court’s ruling denying her motion to suppress the drug dog evidence. The case now goes before the state’s highest court.
A brief from attorney Ira Eakin representing the Montana County Attorney’s Association argues that a drug dog is like any other investigative tool used to enhance an officer’s senses, akin to a flashlight or a radar detector.
“These examples all share two critical facts in common: The investigative tools of the officers are non-intrusive, and they are merely being used to assist or aid the officer in observing what has already been exposed to the public or the ‘plain view’ of the officer,” Eakin writes. “The same analysis applies to the officer’s use of a trained dog to sniff the air around a ‘container’ placed on the ways open to the public and exposed to the commerce of everyday life.”
Kristina Guest, assistant appellate defender for the state, maintains that a drug dog should be put in a separate category.
“The flashlight is still the officer doing the work. In this case you’re bringing in a whole separate tool,” Guest says.
Guest’s preferred analogy is to a field sobriety test, in which a driver is taken out of his or her car and tested on the side of the road. “The court has said that’s an invasion of the person’s privacy, and therefore a search,” she says. “I think it’s the same with the drug dog. You have the person on the side of the road and everyone’s watching the drug dog go around the car.”
Eakin’s conclusion says that if three criteria are met, a drug dog should be allowed at traffic stops. First, the officer should have a good reason for stopping the car. Second, there should be a demonstrable reason for suspecting drugs are present. And third, the stop should not take longer than it would reasonably take to complete the traffic stop alone.
Beth Brenneman, legal director for the Montana ACLU, argues in that group’s brief that the use of a drug dog on a public street is “highly visible and intimidating,” that the dogs are not always accurate, and that the presence of an odor alone is not enough probable cause for a search.
“There is enough of a chance that an innocent person can have an alert that you’d better have a reason to have a dog deployed to the car,” Brenneman says. “And because the dog can alert in situations in which you don’t have contraband in the car, you basically have to let them search to prove your innocence, which is untenable in our constitutional system.”
One thing both sides agree on is that the Supreme Court’s decision will have major legal implications. Although the Court has ruled on drug dog cases before, those cases have been about situations like searches of airplane luggage. When other states have taken up similar cases dealing with drug dogs during traffic stops (a much more common situation that affects more people), those rulings have come down evenly in both directions.
“The decision of this Court, in this case, could have a dramatic impact on the ability of law enforcement to use these dogs for these purposes in the State of Montana,” writes Eakin.
Guest used to be a public defender in Billings, where she says it was extremely common for police to use drug dogs on routine traffic stops. If the Supreme Court rules in favor of Evelyn Logan, she says, the practice will be significantly restricted. “There really is a split in the states of how they decide these cases,” she says. “So it will be interesting how it is decided in Montana, given the unique right to privacy clause.”