You have the right to remain barkless
“The little dogs and all, Tray, Blanch, and Sweetheart — see, they bark at me.”
— William Shakespeare, King Lear, Act III
“When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.”
— Louis Nizer
It’s a fairly common set of facts: A man is stopped for a minor traffic offense. When the officer approaches the vehicle to get the man’s personal information it immediately becomes clear to the officer that something is amiss. The man’s behavior is odd. The interior of the vehicle smells like a combination of college dorm room and cheap air fresheners. He’s making furtive movements in the car.
As a result of what he sees the officer likely has what the law calls a “reasonable suspicion” that something more than just a minor traffic violation is going on. The officer goes back to his cruiser and while he’s checking to see if the man’s license is active and whether there are any warrants active for his arrest, the officer also calls to see if the agency’s canine unit is nearby.
Fortunately, the canine officer and his four-legged partner are on duty and close by. So long as they can arrive in the time that the original officer would have detained the driver to issue the traffic citation then there is no “search” and Constitutional provisions are not triggered. The canine arrives shortly and, while the original officer is issuing the traffic citation, the canine walks around the exterior of the vehicle sniffing for drugs.
The canine’s sniff is also not a search for constitutional purposes. The car is in a public place and the canine is neither entering the vehicle nor looking at closed containers or compartments inside it. This same legal logic is why drugs sniffs in school parking lots are constitutional.
Part way around the vehicle the dogs alerts, adopting a physical posture that his handling officers knows is an indication that he has detected the odor of drugs on or in the vehicle. Because a motor vehicle is inherently moveable, different rules apply to the search of vehicles than apply to the search of static objects like physical structures. The officers now remove the driver from his car and prepare to search it for contraband.
What follows is a classic “man bites dog” moment, or in this case, rather, a “man barks at dog moment.” Earlier this week, under a similar set of facts, a 22 year-old man was arrested in Kettering, Ohio, when he began to bark at a police dog and pound on the rear windows of a police cruiser while the dog was conducting an external sniff of his car. News reports indicate that not only were drugs found in the car, but that the man was also charged with a violation of Ohio Revised Code section 2921.321 — assaulting or harassing a police dog, a misdemeanor of the second degree.
While you can’t harass the dog, apparently you can make rude gestures at the officer. Last week, the 2nd District U.S. Circuit Court of Appeals ruled in favor of a husband and wife who were arrested and charged with disorderly conduct for ‘giving the finger’ to a police officer in St. Johnsville, New York. The couple is now suing the police department for damages and the appeals court has given the go-ahead for the suit to proceed.
Attorneys for the police department had argued that it was lawful for the police officer to pull the vehicle over after the passenger made the rude gesture because the officer thought that the gesture meant that perhaps the occupants of the vehicle were in danger and needed assistance. The appeals court didn’t buy that argument, stating, “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”
The middle finger lawsuit will now go back to the lower federal court for a full trial on the merits of the case. The taunting charge will go before a southwest Ohio municipal court for arraignment. Until both cases reach their final conclusions it would probably be best to keep your hand gestures and your barking to yourself.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.