On August 15, 2018, the Eleventh Circuit Court of Appeals of decided the United States v. Rivas[i], in which serves as an excellent review of Fourth Amendment requirements for officers that call canine to conduct a free sniff during a traffic stop.
In Rivas, the defendant was driving in Alabama when he was stopped for a violation of Alabama statute 32-5A-88, which requires that a vehicle “shall be driven as nearly as practicable entirely within a single lane…” According to the officer, Rivas breached the fog line eight times. Due to a language barrier, the officer contacted a translation service. While the officer was using the translation service and conducting conduct a database search of Rivas’ identification, a police canine arrived. The canine conducted an exterior free air sniff and alerted on the vehicle for the presence of illegal drugs. At the same time as the alert, the identification check returned that Rivas was possibly involved in human trafficking. A search of the truck revealed methamphetamine and heroine.
Rivas was arrested and subsequently charged with various federal crimes. He filed a motion to suppress and argued (1) that the stop was not based on probable cause and (2) the officer impermissibly extended the length of the traffic stop to allow the canine to conduct a sniff of his vehicle. The district court denied the motion to suppress and Rivas was convicted. He appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals. [Note: He appealed other issues also but those were not related to the Fourth Amendment and will not be discussed in this article.]
On appeal, the court first examined if the stop of Rivas’s vehicle was lawful under the Fourth Amendment. The court noted that the district court credited the officer’s testimony that Rivas crossed the fog line eight times. Further, this was confirmed with the officer’s dashboard camera. The officer testified that this violated the Alabama statute that requires drivers to stay entirely within their lane. Regarding this issue, the court stated
We agree with the district court that it is unnecessary to determine whether Rivas violated the statute, because the officer’s conclusion that Rivas violated § 32-5A-88(1) by repeatedly breaching the fog line—in the absence of settled authority on the issue—was objectively reasonable. Accordingly, even if the officer were incorrect in his interpretation of the statute, the initial traffic stop did not violate the Fourth Amendment. See Heien v. North Carolina, 135 S. Ct. 530, 534 (2014) (holding that a stop based on an objectively reasonable mistake of law is not “unreasonable” under the Fourth Amendment).[ii]
Therefore, the court held that the officer’s belief that crossing the fog line eight times violated the statute at issue was reasonable, and as such, it provided the officer with sufficient probable cause (or legal authority) to conduct the stop such that it did not violation the Fourth Amendment.
The second issue we will discuss was whether the officer prolonged the stop in violation of the Fourth Amendment to allow the canine to arrive and conduct a sniff of the exterior of the vehicle. Rivas argued that when the officer asked questions unrelated to the reason for the traffic stop, the officer violated the Fourth Amendment. Regarding this issue, the court clarified the correct manner in which they must analyze this this part of the case. The court stated
The inquiry is not whether the officer asked questions unrelated to traffic safety, it is whether—without additional reasonable suspicion—any unrelated questioning unreasonably delayed the encounter.[iii]
In the case at hand, the officer utilized a translation program to converse with Rivas in order to obtain routine information needed on the stop. Additionally, the officer conducted a database search on Rivas. Rivas cited no authority to show that the database search was inconsistent with the traffic safety purpose of the traffic stop. During this time, the canine officer arrived to conduct the sniff of the exterior of the vehicle. Additionally, the officer also pointed to several facts that enhanced his belief that Rivas was involved with criminal activity. The reasons were as follows:
(1) Rivas was abnormally nervous, such that his hands were shaking; (2) Rivas was traveling between a known drug-trafficking source and a known distribution hub; (3) Rivas’s key ring had only two keys (both of which were to the truck’s ignition); (4) Rivas had an unusually small amount of luggage for someone traveling from Texas; (5) Rivas’s answers to the officer’s questions were evasive and inconsistent; (6) Rivas’s body language indicated evasiveness; and (7) Rivas’s physiological response to the circumstances (controlled breathing and carotid artery pulsation) was suspicious.[iv]
In Rivas’s case, when the canine arrived and began sniffing his vehicle, the database check and the conversation with Rivas via the translation program were still pending. As the canine alerted for the presence of illegal drugs, the database search simultaneously indicated that Rivas was suspected of being involved with human trafficking. At this point, the officer clearly had probable cause to search the vehicle and to extend the encounter to conduct a more thorough investigation.
Therefore, since the traffic stop and subsequent canine sniff and search did not violate the Fourth Amendment, the court of appeals affirmed the denial of the motion to suppress.
- A traffic stop must be based on, at a minimum, reasonable suspicion of criminal activity or a traffic violation; the officer does not have to be right, but the officer does have to be reasonable in his/her belief that a violation occurred.
- If an officer wants to contact canine to conduct a free air sniff of the vehicle during a traffic stop in a situation where the officer does not additionally have reasonable suspicion of drug activity or some other crime that will take additional time to investigate, the canine must arrive and conduct the sniff within the time frame of the normal traffic stop. If the officer prolongs the stop to wait for canine, absent reasonable suspicion, this can violate the Fourth Amendment.
[i] No. 17-14860 (11th Cir. Decided August 15, 2018 Unpublished)
[ii] Id. at 3
[iii] Id. at 4
[iv] Id. at 5