3 days ago
When Odin the police dog sniffed drugs, cops could search parked car, court rules
By a bare 4-3 majority Friday, the Kansas Supreme Court expanded police power to perform drug searches on vehicles during traffic stops.
I can see the majority's point, but I'm tending to lean toward the dissenting justices' position, due to the potential for abuse of privacy rights.
The case involves a woman named Gina L. Wilson, convicted of possessing 30 oxycodone pills and driving on a suspended license.
According to the majority opinion, 'Two Wichita police officers performed a traffic stop of Gina Wilson after they twice observed her fail to properly signal after leaving the location of a known drug house.'
As it turned out, Wilson's driver's license was suspended, which she admitted. She was told to step out of the car while police brought a drug-sniffing dog to the scene to check her vehicle.
Here's where it gets complicated: The legality of the traffic stop was not in question, but police aren't allowed to extend a stop beyond the time it takes to write a citation to give them time to bring a drug dog to the scene.
In this case, police dog Odin (who died of cancer last year) and his human partner arrived at the scene about 40 seconds before the officer finished writing up the failure-to-signal citation.
The trial judge, Sedgwick District Judge Kevin Mark Smith, ruled that the officers had not impermissibly extended the traffic stop. The Court of Appeals upheld Smith's ruling.
The Supreme Court also ruled the search legal, but came up with a different, and potentially disturbing, rationale for why.
The drug sniff was legal because Wilson's driver's license was suspended, said the majority opinion, authored by the court's most conservative justice, Caleb Stegall.
'Though Wichita police officers have the authority to arrest someone for driving on a suspended license, they also have the discretion not to,' Stegall wrote. 'The officers here admitted that although they intended to arrest Wilson from the moment they asked her to exit the vehicle, they did not actually arrest her until after they searched the car and found the pills.
'But regardless of whether Wilson was under arrest at the time of Oden's sniff, there are absolutely no circumstances in which the officers would have allowed Wilson to drive away in the vehicle. Put another way, regardless of what happened to Wilson, the car wasn't going anywhere. It simply became a lawfully, publicly parked vehicle in Wichita, Kansas . . . Because the car was legally parked and no one was attempting to or prevented from lawfully moving it, the sniff was legally performed regardless of whether Wilson was seized.'
You may be saying, my license is fine, so I don't have to worry about this.
Not necessarily.
I got pulled over once out in California and was shocked to learn from the officer that my license had been suspended without my knowledge.
It turned out it was the result of a very minor accident where another driver and I had tapped bumpers a year of so previously. I didn't think enough damage was done to trigger the requirement to file an accident report, but the other driver did file one. So I'd been suspended for failing to file, though I'd never heard a peep about it from the DMV.
Fortunately, the cop was understanding, and let me off with a warning and an admonition to go straight to the DMV and take care of it — which I did.
In Kansas, the DMV is generally required to send notice and allow drivers time to appeal before suspending their license.
But people don't always get the word. A lot of folks forget to update their license when they move, and the DMV sends suspension notices to the last address they have on file.
'People get caught in that all the time,' said lawyer and state legislator John Carmichael.
Carmichael said Kansas police and courts tend to be less forgiving than my laid-back California cop was. If you don't update your license when you're supposed to, they consider that your problem.
In the dissenting opinion in Wilson's case, Justice Eric Rosen called it a fantasy to believe that the officers had seized the driver, but not her car.
''It would have been clear to anyone not residing in a fantasy-world parallel universe' that the officers here were not going to let Wilson or her vehicle leave the scene until the dog sniff was complete,' he wrote. 'The majority ignores this reality, insisting that Wilson's car was not seized because she did not have a license to drive it.'
'It would seem that, in the majority's new world, if an officer pulls over a driver who does not have legal authority to operate a vehicle, the officer may seize that driver and prevent anyone from moving the vehicle for as long as necessary to await a dog sniff. I cannot fathom this is what the majority had in mind, but it seems it is the result they have created.'
I think Rosen's onto something. So did Chief Justice Marla Luckert and Justice Melissa Taylor Standridge, who joined the dissent.
Rosen continued that even if the car was not technically legally seized at the time, 'I could not join the majority in its brazen announcement that officers can perform a dog sniff on any car that is legally parked in public.'
I'm not enough of a legal scholar to say if that's the message the court's trying to send. But I'm pretty sure it's the message police will hear.
And all our privacy could suffer as a result.
