NORWICH – Last week the New York Court of Appeals ruled that police can not subject a person or their vehicle to a canine drug search unless the officer develops a “founded suspicion” that criminal activity is taking place.
“New York State has a long history of restricting police authority and power compared to other states or the federal government,” said Norwich Police Chief Joseph Angelino, whose department added a canine officer last year. “It used to be that the air was ‘free’ and the dogs were free to sniff it and free to follow it. But that’s no longer the case as New York has now taken even federal mandates one step further in saying police need to have a suspicion of criminal activity prior to letting police canines sniff the air.”
Angelino said “founded suspicion” was a defined legal requirement under New York State law and would need to be substantiated in court following any search.
Prior to the June 8 ruling, officers on patrol were allowed to have drug dogs pass around the exterior of any vehicle or person they pulled over for a routine traffic stop in search of possible narcotics, regardless. If the dog signaled a detection ,then police could use the animal’s cue as probable cause to search the rest of the vehicle and seize any drugs located inside. Now, police need to establish a suspicion of criminal activity before they’re allowed to deploy the dog.
“The state law is more protective than the federal, even though the court is saying an officer has a right to be there for a traffic stop, the dog can not be sniffing vehicle without a founded suspicion of criminal activity,” said District Attorney Joseph McBride.
McBride said the ruling creates a standard for a canine searches that had not yet been established in New York.
“The case definitely states the guidelines; the question that was up for debate in this case is resolved. The case basically states a person will have a diminished expectation of privacy in an automobile, but law enforcement needs at least an indication of criminal activity outside of a routine traffic violation,” he said.
The recent ruling cited two cases – the People of New York vs. Damien Devone and the People of New York vs. Saddiq Abdur-Rashid.
Devone was traveling as a passenger and police pulled over the vehicle he was in Aug. 1, 2007 after they observed the driver talking on a cell phone. The driver was unable to produce his driver’s license or registration and told police the car was registered to his cousin, but could not remember his name. After asking about where his cousin was, the driver indicated the passenger in the vehicle – Devone.
Police then discovered the vehicle was registered to a third person. Police decided to search the vehicle due to “suspicious inconsistencies,” calling on a canine unit. The dog uncovered a hidden duffel bag containing a quantity of cocaine in a pillar between the driver and rear passenger seat windows.
In the People vs. Abdur-Rashid ,police pulled the defendant’s vehicle over twice in less than an hour. Abdur-Rashid’s vehicle had no license plate and was pull over by police, who then verified his insurance and registration before releasing him with a ticket. A short time later a separate patrol pulled him over again for a missing license plate, but was unable to determine if Abdur-Rashid had proper insurance, which the court reported he did at the time.
While waiting for confirmation, the officer noticed that Abdur-Rashid was becoming “nervous” and kept glancing back at his patrol car which had a drug dog inside.
The officer then talked to the passenger in the vehicle who presented a “convoluted” story of travel, stated the court. The officer retrieved his dog, searched the vehicle and found two freezer bags of cocaine. In both cases, the court ruled officers had justified their searches
In both cases, the Appellate Division concluded police established a “founded suspicion” of criminal activity taking place noting inconsistent answers of the defendants, confusing or conflicting travel plans given by occupants and that police were lacking a registered owner or other documentation, as reasons for justification.
Even though the court ruled in favor of police actions in the presented cases, in doing so it created a new standard for which to measure all other legal expectations against.
Angelino said the ruling would have little effect on the department’s canine activities.
“This law, like others employed by New York State, will make us better police officers, demanding we present stronger cases,” said Angelino.
Both the DA and the police chief said law enforcement officials were working with area experts on the details of the new law to ensure that motorist’s rights and the court’s decision would be respected.