The Use of a K-9 During a Motor Vehicle Stop in NJ
January 15, 2020 - Posted by Ed Esposito
From time-to-time there is confusion as the proper and lawful use of a canine to conduct a sniff during a motor vehicle stop. Recently, the New Jersey Supreme Court has decided cases that directly address the issue of using a canine in this setting. However, before I continue, I want to be clear that the cases I will be referencing involved motor vehicle stops that were initiated lawfully, and the questions addressed by the court related to the use of the canine during the course of the stop.
For starters, our court said in State v. Dunbar, 229 N.J. 521 (2017) that “an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff.” Prior to this decision, we generally relied on two other cases, State v. Elders, 386 N.J.Super. 208 (App.Div. 2006)* and State v. Baum, 393 N.J.Super. 275 (App. Div. 2007)* to determine under what circumstances it was proper to request or threaten to request a canine to conduct a sniff during a stop. However, there are still questions asked that are likely based on the prior decisions where officers are told they must have reasonable suspicion to request a canine during a traffic stop. So, I want to point out here that the decision in Dunbar made it clear that Elders and Baum no longer set the standard with respect to canine sniffs during a motor vehicle stop. Specifically, the court said, “we hereby adopt the federal standard for determining the manner in which an officer may conduct a canine sniff during an otherwise lawful traffic stop. To the extent that Elders and Baum can be read to suggest a different standard, we disapprove of that reading.” Ibid. (Emphasis added).
The federal standard that was adopted is based on the US Supreme Court’s decision in Rodriguez v. United States, 135 S.Ct. 1609 (2015) and focuses on whether the canine sniff unreasonably prolongs a traffic stop beyond its lawful purpose. To this end, the Dunbar court decided that “officers do not need such reasonable suspicion provided that the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission.” State v. Dunbar. In short, if the canine request is made and occurs during the time that it would take to conduct the stop had the request not been made, then the officer does not need an independent justification to procced with a canine sniff.
The court also said that “an officer may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop’s mission, unless he possesses reasonable and articulable suspicion to do so[.]” Ibid. (Emphasis added). Here, the court decided that time could be added to a stop to conduct a canine sniff – IF – an officer had reasonable and articulable suspicion. However, the issue was not addressed further since the record in Dunbar did not provide enough information for the court to determine if the canine sniff prolonged the stop in that case.
In 2019, the NJ Supreme Court had an opportunity to specifically address the issue of a canine sniff that did extend the duration of a motor vehicle stop in State v. Nelson, 237 N.J. 540 (2019). Before moving on to a discussion on this aspect of the issue, I want to point out another important aspect of the court’s decision in Dunbar. With respect to canine sniffs in a motor vehicle stop setting, the court held that they “constitute a unique procedure that is less intrusive than a search” and that a “canine sniff performed during a lawful detention does not constitute a search under the Fourth Amendment to the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution.” State v. Dunbar. (Emphasis added). This is why I keep referring to it as a “canine sniff” and not a “canine search.” Since it is not considered a search, the standard of justification is lower than what is required to conduct a search, which is obviously more intrusive.
To explore the proper justification when the canine sniff will add time to a motor vehicle stop that would have otherwise been concluded, we are now guided by Nelson. The circumstances surrounding the case in Nelson were based on motor vehicle stop on the NJ Turnpike for a traffic violation. However, in addition to the Title 39 violation, the detective from the State Police that stopped the vehicle was aware of an anonymous tip that provided specific information on the vehicle and a general description of the driver who was allegedly transporting a large quantity of marijuana. During the stop, the detective noticed that the driver was sweating profusely and shaking and that there was an overwhelming smell of air freshener coming from the car. The detective also observed two large bundles in the cargo area of the vehicle. When asked about his travel, the driver changed his story and when asked for consent to search his vehicle, he refused. The detective then requested a canine to conduct a sniff of the vehicle, which arrived thirty-seven minutes later. The canine made a positive indication and a later search under the authority of a warrant revealed eighty pounds of marijuana.
In the subsequent appeal, the court concluded that once the driver refused a consent search of his vehicle, additional time was then added to the stop. However, the court held that the defendant’s “traffic stop was prolonged as he waited for the arrival of the canine unit, but the officers had developed the reasonable and articulable suspicion necessary to prolong the stop.” State v. Nelson. (Emphasis added). Therefore, if an officer develops a reasonable and articulable suspicion that illegal narcotics are present, independent from the reason for the traffic stop, the duration of the stop may be extended while awaiting the arrival of a canine to conduct a sniff.
*Note: Both State v. Elders and State v. Baum went on to the NJ Supreme Court, but the Appellate Division citations are used since the NJ Supreme Court did not “reach” the issue of the canine in the subsequent appeal.
From time-to-time there is confusion as the proper and lawful use of a canine to conduct a sniff during a motor vehicle stop. Recently, the New Jersey Supreme Court has decided cases that directly address the issue of using a canine in this setting. However, before I continue, I want to be clear that the cases I will be referencing involved motor vehicle stops that were initiated lawfully, and the questions addressed by the court related to the use of the canine during the course of the stop.
For starters, our court said in State v. Dunbar, 229 N.J. 521 (2017) that “an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff.” Prior to this decision, we generally relied on two other cases, State v. Elders, 386 N.J.Super. 208 (App.Div. 2006)* and State v. Baum, 393 N.J.Super. 275 (App. Div. 2007)* to determine under what circumstances it was proper to request or threaten to request a canine to conduct a sniff during a stop. However, there are still questions asked that are likely based on the prior decisions where officers are told they must have reasonable suspicion to request a canine during a traffic stop. So, I want to point out here that the decision in Dunbar made it clear that Elders and Baum no longer set the standard with respect to canine sniffs during a motor vehicle stop. Specifically, the court said, “we hereby adopt the federal standard for determining the manner in which an officer may conduct a canine sniff during an otherwise lawful traffic stop. To the extent that Elders and Baum can be read to suggest a different standard, we disapprove of that reading.” Ibid. (Emphasis added).
The federal standard that was adopted is based on the US Supreme Court’s decision in Rodriguez v. United States, 135 S.Ct. 1609 (2015) and focuses on whether the canine sniff unreasonably prolongs a traffic stop beyond its lawful purpose. To this end, the Dunbar court decided that “officers do not need such reasonable suspicion provided that the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission.” State v. Dunbar. In short, if the canine request is made and occurs during the time that it would take to conduct the stop had the request not been made, then the officer does not need an independent justification to procced with a canine sniff.
The court also said that “an officer may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop’s mission, unless he possesses reasonable and articulable suspicion to do so[.]” Ibid. (Emphasis added). Here, the court decided that time could be added to a stop to conduct a canine sniff – IF – an officer had reasonable and articulable suspicion. However, the issue was not addressed further since the record in Dunbar did not provide enough information for the court to determine if the canine sniff prolonged the stop in that case.
In 2019, the NJ Supreme Court had an opportunity to specifically address the issue of a canine sniff that did extend the duration of a motor vehicle stop in State v. Nelson, 237 N.J. 540 (2019). Before moving on to a discussion on this aspect of the issue, I want to point out another important aspect of the court’s decision in Dunbar. With respect to canine sniffs in a motor vehicle stop setting, the court held that they “constitute a unique procedure that is less intrusive than a search” and that a “canine sniff performed during a lawful detention does not constitute a search under the Fourth Amendment to the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution.” State v. Dunbar. (Emphasis added). This is why I keep referring to it as a “canine sniff” and not a “canine search.” Since it is not considered a search, the standard of justification is lower than what is required to conduct a search, which is obviously more intrusive.
To explore the proper justification when the canine sniff will add time to a motor vehicle stop that would have otherwise been concluded, we are now guided by Nelson. The circumstances surrounding the case in Nelson were based on motor vehicle stop on the NJ Turnpike for a traffic violation. However, in addition to the Title 39 violation, the detective from the State Police that stopped the vehicle was aware of an anonymous tip that provided specific information on the vehicle and a general description of the driver who was allegedly transporting a large quantity of marijuana. During the stop, the detective noticed that the driver was sweating profusely and shaking and that there was an overwhelming smell of air freshener coming from the car. The detective also observed two large bundles in the cargo area of the vehicle. When asked about his travel, the driver changed his story and when asked for consent to search his vehicle, he refused. The detective then requested a canine to conduct a sniff of the vehicle, which arrived thirty-seven minutes later. The canine made a positive indication and a later search under the authority of a warrant revealed eighty pounds of marijuana.
In the subsequent appeal, the court concluded that once the driver refused a consent search of his vehicle, additional time was then added to the stop. However, the court held that the defendant’s “traffic stop was prolonged as he waited for the arrival of the canine unit, but the officers had developed the reasonable and articulable suspicion necessary to prolong the stop.” State v. Nelson. (Emphasis added). Therefore, if an officer develops a reasonable and articulable suspicion that illegal narcotics are present, independent from the reason for the traffic stop, the duration of the stop may be extended while awaiting the arrival of a canine to conduct a sniff.
*Note: Both State v. Elders and State v. Baum went on to the NJ Supreme Court, but the Appellate Division citations are used since the NJ Supreme Court did not “reach” the issue of the canine in the subsequent appeal.