Meet Me At The Border: A Brief Overview of North Dakota Drug Sniffing Canines & Motor Vehicle
I previously wrote a short guide to Minnesota's approach to using drug sniffing canines on motor vehicles along the highway and it occurred to me how different the State of North Dakota approaches the same topic. In short, you have more protections for your freedom in Minnesota than you do in ND.
The Initial Stop: Reasonable & Articulable Suspicion is Needed in NDDuring a valid traffic stop, an officer can temporarily detain the traffic violator at the scene of the violation. The duration of the investigatory detention may continue as long as reasonably necessary to conduct the officer's duties resulting from the traffic stop and to issue a warning or citation. When the original purpose of the traffic stop is complete, the officer must have a reasonable suspicion that criminal activity is afoot to continue the detention. Any further detention, without reasonable suspicion, violates the traffic offender's Fourth Amendment rights against unreasonable searches and seizures.
Further Detention: What is Needed?Once the purposes of the initial traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable suspicion for believing that criminal activity is afoot. Two determinations must be made: whether a suspect was 'seized' within the meaning of the Fourth Amendment when he/she was held awaiting the arrival of the drug detection dog, and if so, whether there was a reasonable suspicion to support the seizure. However, an officer ... may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual
Is the canine sniff a search?A dog sniff, without a seizure, is not a search, under the Fourth Amendment. Yet, a dog sniff is not fairly characterized as part of the officer's traffic mission. So...what does this mean?
A traffic stop 'can become unlawful if it is prolonged beyond the time reasonably required to complete [the] mission' of issuing a warning ticket." Rodriguez, 135 S.Ct. at 1614-15. What is articulated by an arresting officer must be reasonable and must pass a credulity test. If it does not, a completed valid stop cannot be extended in the hopes of drug interdiction.
In North Dakota, it appears that an officer can use "a combination of wholly innocent factors to combine into a suspicious conglomeration" and detain a motorist for a lengthy period of time for purposes of bringing a canine to the scene to sniff the vehicle for drugs. As my initial point at the start of this guide states, the State of Minnesota seems to place less suspicion on "innocent factors" than North Dakota does.
It appears that the North Dakota Supreme Court is willing to consider some argument about the "length of detention" of a suspect in a motor vehicle being held for a canine sniff of the vehicle, yet the court has not been more willing to address the constitutionality of the actual sniff itself when based on a series of "innocent behaviors." It appears, in North Dakota, you have the same freedoms as in many other states, but those freedoms must be "on loan" to law enforcement for lengthy periods of time if you want to travel on our highways.
If you have been stopped, searched, and arrested for drugs in ND...Get an attorney now!The factors that the courts in ND will consider when determining if a canine sniff is valid appears to include wholly "innocent factors" and doesn't require clear evidence of criminal or narcotics activity to start a canine sniff. What will the courts make of the "drug corridor", "hard travel", "minimal luggage," and "source state" arguments that are on the rise by prosecutors and law enforcement? Only time will tell.
The key is aggressive defense. If you have a drug charge based on a traffic stop and canine sniff, you need to consult with an experienced criminal defense attorney to address these issues to protect your future.