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.

Posted by Dave Hejmanowski on Jan 11 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.