See People v. Thomas, 2014 IL App (3d) 120676 (October). Episode 043 (Duration 12:04).

Police dog sniff set-up procedures may be ordered by the police. Listen to podcast episode 043 of the Criminal Nuggets Podcast to discover what the heck it means to “prep” a car for a dog sniff.

Facts

Defendant was a passenger in a car being driven with its bright lights. Unfortunately, for Defendant it was a canine unit that stopped Defendant.

The officer ordered the occupants turn the heat on and roll the windows up while the dog sniffed around the outside of the car. 

The police dog alerted to the presence of drugs in the car. The officer removed the occupants.

“As defendant got out of the car, two prescription Vicodin pills fell off of his coat and onto the ground.” ¶ 5

Defendant put them in his mouth. Another officer then –

 Forced defendant to the ground

• Ordered defendant to open his mouth, and
• Choked defendant until he passed out
• Defendant awoke the following day in a hospital.

In any event, during a search of the vehicle, officers discovered cocaine between the driver and passenger seats.

Defendant was convicted of possession of a controlled substance.

Police Dog Set-Up Procedure

The police dog sniff set-up procedure was the part where the police officer ordered the car occupants to –

• Turn the car on
• Turn Heater on High
• Blow Air Through the Vents
• Roll Up all the Windows

A car set-up like this if ripe for the sniffing.

Issue

The issue in this case was whether the  dog sniff and the officer’s order to prepare the car for the sniff by turning the heat on and rolling up the windows unlawfully prolong the traffic stop.

Analysis

“The free-air sniff began between five and seven minutes into the stop.” ¶ 22. This amount of time isn’t even close to the amount of time found to be unreasonable in Illinois case law.

The fact that the traffic ticket was not written until after the dog sniff is not dispositive in this case. The dog was already with the officer. So the officer did not stall or delay the interaction so that a canine could be brought to the scene.

What about the order to turn the heat on and roll up the windows?

The Illinois Supreme Court has spoken on this issue.

People v. Bartlett, 241 Ill. 2d 217 (2011), has held that the “setup” procedure of ordering a vehicle occupant to roll up windows and turn blowers on high before a dog sniff of the exterior of the vehicle is not an unreasonable search.

Apparently, this is comparable to suitcase “prepping.” DEA agents “prep” suitcases before a dog sniff by pressing them lightly with their hands and slowly circulating the air in order to procure a scent from the bags. See  United States v. Viera, 644 F.2d 509, 510 (5th Cir. 1981).

Court Disagrees But Affirms

This court recognized that these “prepping procedure” is “forcing  a vehicle’s occupant to make available to officers, without a warrant, something that is normally on the interior of the car and afforded at least some fourth amendment protection

Although a dog sniff is not typically classified as a search, it does not mean that the use of a drug-sniffing dog cannot eventually become a search, and an unlawful one at that.” ¶ 33

The court when on to say that –

“It is not the dog sniff that offends the fourth amendment. It is the police ordering the driver to roll up the windows and activate the fan that crosses the line. This “setup” procedure is analogous to an officer ordering the occupant to empty his pockets and throw the contents out the window onto the ground. The occupant cooperates, and among his personal effects is a small bag containing contraband. The contraband, now in plain view, prompts the officer to place the occupant under arrest. This is not, nor could it ever be, the state of fourth amendment jurisprudence. While plain view and plain smell are established exceptions to the warrant requirement, ordering a vehicle occupant to participate in an assisted sniff of the interior of his vehicle transforms the free-air sniff into a search governed by the fourth amendment. However, until the setup procedure employed here and in Bartelt is overruled, we must affirm.  ¶ 33.

Thus, the car prep and suitcase prep is not sufficiently intrusive as to offend the fourth amendment. See Bartelt, 241 Ill. 2d at 231.

Law on Car Stops

“Stopping a vehicle and detaining its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); People v. Harris, 228 Ill. 2d 222 (2008).

An initially lawful seizure can violate the fourth amendment if its manner of execution unreasonably infringes interests protected by the Constitution. Illinois v. Caballes, 543 U.S. 405, 407 (2005); Harris, 228 Ill. 2d at 235. For example, a traffic stop that is justified by the interest in issuing a warning ticket to the driver can become unlawful if it is ‘prolonged beyond the time reasonably required to complete that mission.’ Caballes, 543 U.S. at 407; see also Harris, 228 Ill. 2d at 235.

“Brevity is an important factor in determining whether a detention was reasonable, but the court should also consider whether the police acted diligently in pursuing the investigation.” People v. Welling, 324 Ill. App. 3d 594, 602 (2001).” ¶ 21

Reasonable Suspicion v. Probable Cause

At the end of day, something is reasonable if a judge says that it is.

The Bartlett judges ultimately said that a police dog sniff set-up procedure is reasonable thing to be ordered. The court did not analyze the case from a normal “reasonable suspicion” vantage point. 

The case law has been clear that traffic stops are governed by the standards and rules surrounding the reasonable suspicion standard. 

A major pillar in that area of the law is the premise that an individual has a right to refuse the requests coming from law enforcement. So what happens if the driver refused to “prep” his car?

We don’t know. If the police have the right to “order” these procedures, then do they have the right to drag people out of a car to prep the car themselves when and if the occupants refuse?

The order to prep itself is a police intrusion that the judges were fine with. What about an order to prep plus dragging people out the car so the cop can turn the heat on himself? We have to wait for that case to come to the court system.

Holding

Until “Bartlet is overturned, this court affirmed these pre-sniff prepping procedures.

For more information, jump over to my resource page on police drug dogs.