Over-The-Top Cops: Why Have a Drug Dog When You Can Pretend You Do?

January 10, 2014

By Keffer Hirschauer LLP

“Sir, can I search your car?” “Well…officer…I’m not certain I should be doing that.” “Hey, listen, do I need call a drug dog? Because I can. Or, you can just let me search and save us both a whole lot of time.” Why not, right? What have you got to lose? After all, they’re going to get a drug dog anyway, so what does it hurt to consent to the search? In a word: much.

When young, soon-to-be lawyers are in law school and are being taught about Fourth Amendment Search & Seizure law, they are taught to think of it from a simple viewpoint. Imagine the entire interaction of your client (or the defendant, if your predilection is for prosecuting) laid out like a movie reel. And as you go, minute by minute, through that interaction, every moment must be constitutionally justified. If, as some point during that movie reel, the officer is acting without constitutional authority, then he has exceeded the scope of his authority. Lawyers know that officers have this limitation; even police officers know this limitation. But, the average person may not.

So, why would an officer threaten the use of a police, drug dog, rather than just call one? Two simple reasons: (1) he truly is concerned about the use of tax-payer resources and wishes to conserve them for the greater good of the community, or (2) he cannot get a drug K9 to the scene in a constitutionally permissible period of time. The former is lofty, but still of no concern to the average person about to be arrested for a crime. However, the latter has significant constitutional implications. Namely, the officer knows – or should know – that if he extends the detention of an individual beyond its purpose (i.e. extends a traffic stop longer than it takes to write a citation), then he risks losing any arrest that he may make when a drug dog finally arrives to sniff the car. But if the individual consents to the search of his or her car, then the “constitutional stop watch” on the officer’s detention of the individual has come to a stop.

Since you are not required to consent to a search and officers cannot force your consent, why not respond, “Respectfully officer, you should call the dog; or am I free to leave?”

Rest assured, as long as individuals do not appreciate the difference between a question asked to save time and a question by law enforcement to gain an extended detention of an individual and a confession to a crime, then they will continue to threaten to use a police dog rather than actually bring one.

[Over-The-Top Cops is a regular entry focused on identifying and recognizing creative tactics used by law enforcement to obtain arrests and circumvent certain statutory or constitutional limitations placed upon them. These tactics are often used on regular individuals and allow law enforcement to take advantage of individuals who are legally unsophisticated.]