Evidence Derived From Dog’s Sniffing During Traffic Stop Properly Admitted

Wednesday, November 7, 2018

Page 1

Court of Appeal:

Evidence Derived From Dog’s Sniffing During Traffic Stop Properly Admitted

By a MetNews Staff Writer

The Fourth District Court of Appeal has held that a narcotics-certified dog’s discovery of more than four kilograms of methamphetamine during a traffic stop did not violate the Fourth Amendment because the dog’s sniffing did not prolong the time needed to issue a citation.

The opinion by newly installed Justice Michael J. Raphael of Div. Two, formerly a Los Angeles Superior Court judge, was filed Monday. It affirms San Bernardino Superior Court Judge Kyle S. Brodie’s denial of the defendant’s motion to suppress the methamphetamine as evidence.

Defendant Esteban Vera was pulled over by Rialto police detective Joseph Maltese for having illegally tinted windows. Although Maltese did not call for backup, a nearby police officer who happened to be nearby showed up.

Maltese asked the other officer (identified in the opinion mononymously as Garcia) to write Vera a ticket for the window tinting. While Garcia was doing so, Maltese had his dog—identified by the department as Smoky—sniff Vera’s vehicle; the dog’s olfactory sleuthing turned up the drug; Vera pled no contest after his suppression motion was denied.

Raphael found controlling the U.S. Supreme Court decision in Rodriguez v. United States which, under circumstances present there, held unlawful the introduction of evidence derived from a dog’s sniffing which uncovered illicit drugs after a defendant was pulled over and issued a traffic citation. Writing for the 6-3 majority, Justice Ruth B. Ginsburg said:

“This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”

Div. Two of the Fourth District Court of Appeal has affirmed a drug conviction secured as the result of evidence secured through the sniffing of the Rialto Police Department’s certified narcotics dog, Smoky, pictured above. The court held that fruits of the canine’s investigation were lawfully admitted because a traffic stop, for illegally tinted windows, was not prolonged by virtue of the sniffing.

Raphael wrote:

“Under Rodriguez, Vera properly was detained for any time period necessary to perform the mission of the traffic stop….During the initial period, most of Maltese’s actions were within that mission, as Rodriguez defines it. Maltese acted to ensure his safety by ordering Vera out of the car, patting him down, and asking him to sit on a curb.”

He went on to say:

“The critical issue here is whether the dog sniff extended Vera’s detention for longer than it would have lasted without the dog sniff—including the time for issuing the citation. That is, the yardstick for measuring whether the dog sniff prolonged Vera’s detention is the length of time of that detention had Maltese written the citation himself without the dog sniff.”

Concluding that, under Rodriguez, the evidence uncovered by Smoky was properly admitted, Raphael said:

“The dog sniff began about 72 seconds after Maltese proceeded to his car to retrieve the citation book, and about 40 seconds after he handed the book to Garcia. The dog may have alerted to the trunk shortly after that; Vera has not established any length of time that it took the dog to alert. Vera also did not establish how long it takes Maltese (or Garcia) to write a citation. Vera did not establish that Garcia took more time than usual to write it. On this record, we cannot conclude that the dog alert occurred after the citation reasonably should have been issued.”

The case is People v. Vera, 2018 S.O.S. 5315.