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View Full Version : Detaining until K-9 Arrives


Future_Hopeful
12-31-03, 03:59 AM
Does anyone know the case law pertaining to how long an officer can detain a driver while waiting for a K-9 officer?

I'm in the middle of a debate with someone and couldn't find any. I'm pretty sure there's got to be something.

Scenerio: Officers pulls over driver for speeding. Officer suspects something is awry for whatever reason, but doesn't quite have PC. He asks the driver for consent, but driver refuses. He decides to call a K-9 from neighboring town/county.

Q: Is there case law stating how long the officer can keep the driver waiting for the dog?

Thanks,
Peter


Drew27k9
12-31-03, 05:17 AM
United States v Bloomfield (40 F. 3d 910 (1994) Eighth Circuit

An investigative stop must be supported by reasonable suspicion. The detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.

The one-hour time period between when the officer pulled the defendant over for a traffic violation and when officer arrested defendant was not unreasonable period to wait for drug dog to verify officer’s suspicion that vehicle contained drugs.

While waiting for the dog, the defendant:

• was told he was not under arrest;
• was not physically restrained;
• truck was not impounded or removed;
• truck was not searched until after drug dog provided probable cause.

Dog’s identification of drugs in luggage or in car provides probable cause that drugs are present, and vehicle then can be searched without warrant under the automobile exception to warrant requirement.

I have seen other cases where the courts have ruled on different times allowed while waiting for a K-9.. Most of the cases were anywhere from 15 minutes to 45 minutes and the courts ruled that was not unreasonable period of time to wait for the K-9 to arrive.

Scruit
12-31-03, 07:49 AM
Not under arrest or physically restrained? So he is free to leave if he wishes?


I don't think an hour is reasonable. Think of if you were on your way to pick your kids up from school, or picking up food for your family, or even going to work...


Stump
12-31-03, 09:24 AM
Drew, you impress me. :)

We delay people for K9 a lot. However, it usually doesn't take more than 15 mins or so until they can get there.

Drew27k9
12-31-03, 09:43 AM
Thanks Stump,
Like I said that I have seen all kinds of case law on this time thing and most of the ones are anywhere from 15 minutes to 45 minutes to wait for a dog. In the county where I work I think there are about 40 police departments or so. If a department needs a K-9 most of the time it's under 15 minutes.

Lfpdlieu302
12-31-03, 10:45 AM
we will not hold the driver any longer than the stop would normally take. around 15 minutes is the max. in your scenario however remember this.....you can not ask for consent to search until your stop is completly over. so, if you ask for consent, the stop is over, and he denies consent, you cant hold for a dog. now i have said this before because you can do it, let the driver go and hold the car, there is nothing in the law that states you cant do that.

Future_Hopeful
12-31-03, 01:04 PM
Thanks Drew.

That should work nicely with my argument. Just what I was looking for.

Peter

Scruit
12-31-03, 01:10 PM
lfpd,

Is it a hard rule that you cannot ask for consent until the stop is over? Or is that a lesson learned of exprience?

CXT_180
12-31-03, 01:16 PM
As I understand it, the amount of time is considered reasonable as long as the K9 unit makes a reasonable effort to arrive ASAP, and it is not coming from an outstanding distance away i.e. more than 60 miles.

Lfpdlieu302
12-31-03, 01:54 PM
scruit, basically in a nutshell, yes, expereince in court is what i base this on. lol, long long story involving drugs, scum, and a lot of work for nothing.

on another note, you cant call for a dog simply based on somones denial of consent. you must have reasonable suspicion in order to use the dog. you cant just run it around whichever car you please.

now here would be a good scenario:

pull the guy over for speeding or another violation, when approaching the car, the driver appears nervous, answers arent consistent with his story, or you saw him reach under a seat for something. now you go back to your car run him NCIC and whatever your state uses ACIC here, and request for a K-9. now, once you've run the guy, written tickets, and are ready to re-approach the driver.....your K-9 better be there. once you hand that license back, your stop is over. 1 hour is not reasonable, i'll have to look that case law up and see what it says in particular. there is no way i'm gonna let one of our officer hold a guy for 1 hour while he waits to get a dog to run around the car 1. only for reasonable suspicion, and 2. with the possiblity that the dog wont even alert on the car.

rdp
12-31-03, 05:57 PM
We even have a state law saying one may not be detained longer than 60 mintues.........This gives plenty of time for a dog to arrive.

There is case law that actually allows us to go longer if we are progressing in our investigation.

Lfpdlieu302
12-31-03, 06:47 PM
i still cant find any info on the that particular case. i did check our arkansas rules of criminal procedures, it says in rule 3.1 that we cant hold somone here longer than 15 minutes.

vadep
01-01-04, 05:36 AM
The Supreme Court HAS NOT ruled how long an officer may detain a traffic violator. They have ruled that an involuntary detention may last only as long it takes you to expeditiously accomplish certain "reasonably necessary duties."

The "business" portion of the stop must be completed prior to asking for consent, however there is no requirement to inform the violator that he is free to leave (see Ohio v. Robinette 117 S. Ct. 417 1996).

If the violator denies consent, absent other probable cause he can not be further detained. His vehicle, however, most certainly CAN. If consent is denied, and you can articulate reasonable suspicion, that vehicle may be detained for the arrival of a K-9.

Detention of the vehicle beyond this brief time needed to issue a citation or warning requires reasonable suspicion of illegal activity. "Once the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to delay by police for further questioning." (United States v. Walker.) "Any further detention for questioning [not for issuing a citation] is beyond the scope of the Terry stop and therefore is illegal unless the officer has a reasonable suspicion of unlawful activity." United States v. Dewitt.

How long can you wait for that dog to get there?? In United States v. Hardy, the court explicitly ruled that the fifty minutes necessary to secure a drug detection dog was not unreasonable when the dog was stationed twenty-five miles away. The court also noted that it could not expect that the police would have a dog available at a shorter distance, given the rural area. Several courts have approved of detentions of up to ninety minutes, when the detention is supported by reasonable suspicion and the officer acts with due diligence to get the dog there as soon as practical.

*** Edited to bold the answer to the original poster's question

Future_Hopeful
01-01-04, 01:24 PM
Thanks again for all the replies.

Very informative.

txinvestigator1
01-01-04, 02:31 PM
Are there any lawsuits from people who were detained for an hour and no contraband was discovered?

rdp
01-01-04, 11:55 PM
We detain people all the time............you can take the dog side out of the equation. Whether it is the statute 60 or even longer.

Never had a lawsuit as a result. The law is very specific and gives the officer the tools he needs.

K9Cop
01-02-04, 01:04 AM
vadep was right on concerning that there is no specific time allotted. As for the lawsuit question - I'm sure there has been. Speaking from experience, even when a pound of marijuana is found in the car and the car was sniffed by the K9 within 5 minutes time of the initial stop (while a citation was being issued)-a person will try to sue.....

The legality behind not asking for consent to search until the traffic stop is concluded is because a "reasonable person" might believe that they did not have an option to deny the request. Prior to having a K9 partner, I would hand back the person's drivers license and any warning or citation - as they went to exit my patrol car ( door had already been opened by them) , I then ask for consent.

Lfpdlieu was also correct in stating that just because a person denies consent to an officer - that reason alone would not justify requesting a K-9 Sniff BUT I CAN, according to Supreme Court rulings, walk my partner around ANY vehicle that has been legally stopped AS LONG AS I DO NOT UNNECESSARILY CAUSE DELAY TO THE DRIVER. As a K9 sniff is not deemed a search ( there is no expectation of privacy of the ambient air around a vehicle/luggage). Takes less then a minute to walk my dog around a vehicle - our dispatch takes at least that long to give us back a return on registration, let alone DL info.

Most of our units will give me a heads up BEFORE they activate blue lights so that I can get to their location before they even make initial contact with the driver. I won't have my K-9 sniff around a vehicle after the officer has already been refused a consent to search UNLESS that officer can ARTICULATE reasonable suspicion or probable cause that I believe will stand up in court for a K9 Sniff. Yeah, I've pissed more then a few officers off by refusing, but I like my partner, and want to keep our certifications and employment.

txinvestigator1
01-02-04, 03:03 AM
OK guys...............I will give you the benifit of the doubt that generally, if you detain to get a dog, you find dope.

That said; I am going from point A to point B and I place my head up my *** and speed. You stop me and request consent to search. I am in a mood and say NO. I just want to get to my meeting.

You then delay me a friggin hour for your dog to arrive. Your dog sniffs my car, me (dang cold nose) and all that BS. It hits on nothing BECAUSE I AM JOE GOOD HONEST CITIZEN. However, I lost a MAJOR account because I was late.

Think I have a legitimate cause of action?

rdp
01-03-04, 12:53 AM
If you weren't committing a crime, would you have been delayed??

I think it would depend on the officers and their reason for delaying you if there was any delay.

If I choose to run a good records check of everything, it could take awhile. If I remember right, you were a cop so you should know the numerous record systems which I could check which may take a lil' while for each one. Then I decide to write your cite.... Need you to sign it and explain it to you. This could be a lengthy process and we haven't even brought the dog in yet......or he could have shown up and been done by now.

If you don't want to be delayed, don't break the law.

Lfpdlieu302
01-04-04, 07:35 PM
Originally posted by rdp
We detain people all the time............you can take the dog side out of the equation. Whether it is the statute 60 or even longer.

Never had a lawsuit as a result. The law is very specific and gives the officer the tools he needs.

i guess a lot of this depends on where you work. as i stated before, arkansas rules of criminal procedure state that i cant hold somone longer than 15 minutes. that is actually in the lawbook. if you havent had a lawsuit yet, you're lucky!! lol, we've got a city councilwoman suing our k-9 right now for being held too long. and it was only like 14 minutes!!

CXT_180
01-04-04, 09:28 PM
Originally posted by Lfpdlieu302
i guess a lot of this depends on where you work. as i stated before, arkansas rules of criminal procedure state that i cant hold somone longer than 15 minutes. that is actually in the lawbook. if you havent had a lawsuit yet, you're lucky!! lol, we've got a city councilwoman suing our k-9 right now for being held too long. and it was only like 14 minutes!!

Wouldn't it also depend a lot on the reason you want to search it? What your suspicions/reasons are for wanting to search the car in the first place can make a huge difference.

Norm357
01-04-04, 10:42 PM
Funny story. Once, Long ago, when Norm was not as smart as he is today, I was stopped by a small town cop (Hampton Ga) for allegedly crossing a double yellow line. I was on my way home from the range, so when the cop asked me if I had any guns in the car I said I have 2 handguns and a rifle. He then asked me if I had any drugs in the car and I told him I leave all my dope at home. Dumb, I know. He made me wait 96 minutes till he could get a dog from another jurisdiction. I made a complaint to my congressman and P.O.S.T. and said smartass officer is no longer employed by the city of Hampton.

Darin
01-04-04, 10:45 PM
You go Norm! That learned him.

Norm357
01-04-04, 10:48 PM
Well I felt bad afterwards. I made a major smartass comment. I guess I was not the only one to complain about this officer.

Darin
01-04-04, 10:50 PM
He's probably on welfare now, eating dog food, taking his BMX bike to his Wal-Mart greeter job.

vadep
01-04-04, 11:41 PM
Originally posted by CXT_180
Wouldn't it also depend a lot on the reason you want to search it? What your suspicions/reasons are for wanting to search the car in the first place can make a huge difference.

Exactly!! Articulation is the key.

Lfpdlieu302
01-05-04, 12:25 AM
Originally posted by CXT_180
Wouldn't it also depend a lot on the reason you want to search it? What your suspicions/reasons are for wanting to search the car in the first place can make a huge difference.

to a degree, yes. however, if i have probable cause to beleive that there are drugs in the car, i search with or without a dog, and with or without the owners consent. time is no longer a factor. if i only have reasonable suspicion that there are drugs in the car, again, 15 minutes to develop pc is what arkansas rules of criminal procedure say that i have. like i said, a lot may depend on the area that you work. there is no way in hell i could get away with holding somone one hour for a dog!! (wish i could though);)

rdp
01-06-04, 07:19 PM
15 minutes..........It could take that long for a decent records check.

Officer Moe
01-07-04, 12:16 PM
Originally posted by Lfpdlieu302
to a degree, yes. however, if i have probable cause to beleive that there are drugs in the car, i search with or without a dog, and with or without the owners consent. time is no longer a factor. if i only have reasonable suspicion that there are drugs in the car, again, 15 minutes to develop pc is what arkansas rules of criminal procedure say that i have. like i said, a lot may depend on the area that you work. there is no way in hell i could get away with holding somone one hour for a dog!! (wish i could though);)

An officer acting under this rule (3.1) may require the person to remain in the officer's presence for a period of not more than fifteen (15) minutes OR for such time as is reasonable under the circumstances.

As long as you make progress you can continue to detain. And progress is shown in the report as you ARTICULATE it.

3.4 says you can search the person or surroundings if the officer reasonably believes there might be a weapon. If someone is reaching under the seat I can reasonably believe that it is quite possible for there to be a weapon and do a quick sweep of the vehicle. As long as you can articulate why you were there. That's just a way around PC or Consent searches here in Arkansas. Now you cant look in the film canister of matchbook box for a pistol but you get the idea.

Lfpdlieu302
01-07-04, 04:49 PM
Originally posted by Officer Moe
An officer acting under this rule (3.1) may require the person to remain in the officer's presence for a period of not more than fifteen (15) minutes OR for such time as is reasonable under the circumstances.

As long as you make progress you can continue to detain. And progress is shown in the report as you ARTICULATE it.

.

again, the statue states 15 minutes, the reasonable time under circumstances is not gonna get you 1 hour here...at least not in my county. and yes as long as you make progress you can continue to detain, however at some point your progress has to yeild something. like i said before, maybe its just me or at my pd, but we're not holding somone for 1 hour for a dog. the car yes, the person no.

Officer Moe
01-08-04, 09:30 AM
No I agree with that 100 % but the rule does allow for an extension...if someone refuses consent and you have nothing to go for, send them on their way...It's happened to me before and will happen again. There are more bad guys with contraband out there.

JimDeGriz
01-08-04, 01:26 PM
Originally posted by Lfpdlieu302
like i said before, maybe its just me or at my pd, but we're not holding somone for 1 hour for a dog. the car yes, the person no.

if the delayed driver is legal to be on the road and there is nothing other than an officer suspecting drugs in the vehicle what would be the reason for detaining the vehicle without the owner, wouldnt that be grounds for complaint, I see it as an unwarranted seizure, wouldnt it make more sense to keep the driver if you were that sure there was contraband in the vehicle.

Officer Vader
01-10-04, 05:44 AM
I've seen PD outside Philly that has a K-9 unit patroling which to me is strange. I guess it's easier to have 'Killer' with you than calling for K-9.

When I see K-9 or SWAT in my patrolling area I go the other way. :)

Lfpdlieu302
01-10-04, 12:24 PM
Originally posted by JimDeGriz
if the delayed driver is legal to be on the road and there is nothing other than an officer suspecting drugs in the vehicle what would be the reason for detaining the vehicle without the owner, wouldnt that be grounds for complaint, I see it as an unwarranted seizure, wouldnt it make more sense to keep the driver if you were that sure there was contraband in the vehicle.

no, you arent seizing the car, you are just holding it for the k-9. a car has no rights so to speak, unlike a person. kinda like at the airport, when they search luggage. if they think something may be in it, you may be free to go, but your luggage isnt. HOWEVER you have to have pretty good reasonable suspicion to do this. you just cant hold every car you come across for a dog.

Srebeiro
01-11-04, 05:23 PM
Intresting..

Drew27k9
01-13-04, 06:29 AM
I've seen PD outside Philly that has a K-9 unit patroling which to me is strange. I guess it's easier to have 'Killer' with you than calling for K-9.

Hey Vader, I am just outside Philly In Delaware County, I have a K-9 with me when I am working. Most of the departments out here that have K-9 are also on patrol with the dogs.

JimDeGriz
01-13-04, 08:30 PM
Originally posted by Lfpdlieu302
no, you arent seizing the car, you are just holding it for the k-9. a car has no rights so to speak, unlike a person. kinda like at the airport, when they search luggage. if they think something may be in it, you may be free to go, but your luggage isnt. HOWEVER you have to have pretty good reasonable suspicion to do this. you just cant hold every car you come across for a dog.


Sorry, I was actualy asking for others benefit.

The legal term should you ever need to articulate it, reports being ideal, is a "Hobson's Choice", it was given to me once and I remained until a k-9 showed up, I never carried drugs on me so it wouldnt matter, I wasn't in a hurry and the officer turned out to be a really decent guy.

ok, what about the owners rights to his property, wouldnt that be a violation of his rights?

JimDeGriz
01-13-04, 08:36 PM
Originally posted by Drew27k9
I've seen PD outside Philly that has a K-9 unit patroling which to me is strange. I guess it's easier to have 'Killer' with you than calling for K-9.

Most of the departments out here that have K-9 are also on patrol with the dogs.

budgets are being ammended in alot of areas to increase the number of K-9s on patrol, aparently its needed because they are far to valuable an asset for police departments. I just had moved from an area that had 10 K-9s and 70 officers. didnt take long to have one on the scene