CAAF REJECTS FOURTH AMENDMENT ISSUE IN CANINE CASE
July 8, 2016
The United States Court of Appeals for the Armed Forces (CAAF) has made a unanimous decision to uphold the conviction of a Navy lieutenant charged with possession of marijuana and drug paraphernalia. In United States v. Harrell, the defendant had argued that her Fourth Amendment rights against illegal search and seizure had been violated during a traffic stop by civilian police—especially when a canine unit was called to the scene.
UNITED STATES V. HARRELL
As CAAFlog reports, First Lieutenant Harrell was pulled over on August 4, 2010 by civilian police just after midnight. After collecting Harrell's information, the officer went back to his vehicle and called for a canine unit. He suspected that Harrell was under the influence of drugs or alcohol.
In the interim, Harrell was allowed to exit the vehicle to have a cigarette. She did so, leaving the driver's side window open. The canine unit arrived and-- after the dog leaped up and stuck his head through the open vehicle window—led officers to marijuana and marijuana pipes inside the vehicle. Harrell would later surrender marijuana she had on her person, as well. At the time of her traffic stop and arrest, she was the subject of a pending court-martial for wrongful use of marijuana.
Harrell would enter a conditional guilty plea at trial-- conditional in that yes, she could not deny the presence of a controlled substance on her person and in her vehicle, but that she was moving to suppress that evidence against her. Harrell and her legal team asserted that a) her traffic stop was improperly prolonged so that a canine unit could arrive and b) that the search of her car by the dog was illegal. Both the initial judge and the Air Force Court of Criminal Appeals, however, rejected those claims and upheld Harrell's conviction.
THE CAAF DECISION
The CAAF panel was unanimous in its decision to uphold Harrell's conviction. On the first issue, the prolonged police stop, the panel found that the officer on the scene was actually acting appropriately to prolong it, due to his suspicion that Harrell was driving under the influence. "The officer believed Harrell was under the influence of alcohol or drugs. Officer Soltis also believed Harrell might have been engaged in drug trafficking because she had driven a rental car a long distance in order to reach an area locally known for drug activity, but an area that would likely be unknown to most people coming from St. Louis," the court writes.
The canine issue is more nuanced. Initially, it was asserted that the dog never occupied the interior space of the car. However, dashboard footage does show that the dog leaped up and stuck its head through the open driver's side window. Was this a constitutional violation? The court writes that no-- it wasn't. This is because a) Harrell herself had control of that window when she exited the vehicle to have a cigarette and b) even if the dog's leap up to the window is a violation, it was not under the direction of any officer and can be described as "instinctual."
"In this case, when Stryker, the drug dog, 'went high' and placed his forepaws below the driver’s side window, he did so without prompting, urging, or facilitation by his handler or the other officers," the slip opinion notes. "In addition, Harrell had left the window open when she exited the vehicle to smoke a cigarette. Based on these established facts, I conclude that when Stryker leapt up on the car, whether his nose penetrated the interior of the car or not, his actions were instinctual and therefore did not violate the Fourth Amendment."
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