Any drug lawyer worth his or her salt understands that the Fourth Amendment is the central issue in any interstate drug stop case. That means the government must show that the evidence acquired from every part of the traffic stop– the questioning, search, detention, and even the stop itself– must be appropriate when used to confirm the defendant’s guilt. Probable cause must be determined to believe that a traffic violation happened or that there was a sensible suspicion of criminal activity.
In some cases, a drug lawyer can successfully argue that the policeman misjudged and did not have potential cause to stop the motor vehicle because the driver’s conduct did not constitute a traffic violation– though most of the time, the event is recorded on the cop car’s front dash video. What happens after the stop may seep into more of a gray area, however. The person that was stopped could have gone through irrelevant questioning and unnecessary and unlawful detainment during a minor traffic violation. Here are some good examples of how cops make the most of drivers and use dirty strategies to procure information and evidence.
Invalid Consent
Often times, Oklahoma cops will ask the driver for permission to search the automobile. If the cops do not get the consent they are seeking, a drug canine will often be summoned to sniff the air around the motor vehicle so as to give them probable cause to conduct a search. Unlawful detention takes place if the police officer does not have sensible suspicion to detain the motorist until the drug canine arrives.
The Unlawful Search
Even though law enforcement has reasonable enough suspicion to detain the driver, this does not mean that they have probable cause to search. The policeman may ask the driver’s companion for permission to search their bags, and when the companion alone permits, but the police officer proceeds to search the driver’s bags without his permission.
Unlawful Detention
Police cannot unreasonably detain a person during a regular traffic stop, and once it is complete, the driver is free to go. The only time police can arrest an individual is if they have reasonable suspicion to believe that criminal activity is afoot or have probable cause to arrest. Sometimes a police officer will ask many questions during the traffic stop to build suspicion, including questioning everyone in the vehicle what their itinerary are.
If the police have reasonable suspicion that the driver or other passengers are involved in criminal activity, they may detain all the occupants in the car and call for a drug canine to establish probable cause to search– but the duration of the detention must be reasonable. The real question becomes whether the policeman had reasonable suspicion to detain in the first place. Many times, the officer’s hunch could be contested in court.
If valid consent to search is not given or probable cause is not established, police will more than likely call the drug canine to the scene to sniff the automobile. Though trained extremely well, drug canines are not always accurate. In some cases, the evidence obtained by using a drug canine may be suppressed if the animal is found being unreliable or found to have not indicated drugs.
Drug dogs trained in Oklahoma are used as passive indicators, meaning that when the animal walks around the car it will look for the source of contraband. It will then show an interest in what handlers pertain to as an “alert.” The dog takes a seat at the location where the odor is the strongest, as a kind of indication. It can be proven occasionally that the dog did not take a seat or was either intentionally or unintentionally cued by the dog handler.
Dog Training
It must be established that the dog’s sniff is reliable and that it gave probable cause to search. Often times, it is very useful for the defense to hire expert witnesses to help analyze data to provide an outside perspective. Through this method, it may be determined as to whether the canine was accurately trained.
The Inherent Unreliability of a Drug Dog
Drug dogs are trained to signal to the odor of narcotics, but sometimes they can falsely indicate an odor where no drugs are present because they are only indicating the presence of an odor. If a drug canine alerts to the smell of marijuana, it could be that a person riding in the vehicle smoked marijuana and had the scent on their clothing. On the other hand, if it has been shown through other cases that the dog was accurate in the past, the dog will likely be found reliable by the court.
Other Probable Cause
Another reason for a possible cause to search is if the driver states that he only has a personal amount of marijuana. The cop then may search the entire vehicle for admitting to that personal use. In the past, Oklahoma law enforcement has been shown to badger drivers regarding their personal marijuana use so relentlessly that their Fifth Amendment rights of protection against self-incrimination were in jeopardy. In this case, their drug attorney can have the statement effectively thrown out as proof.
