While it is unclear how often the sniff of parked cars or cars stopped at traffic lights is occurring in New Jersey, they are almost certainly going to increase now that our Supreme Court has abandoned the reasonable suspicion requirement. In the face of this previously unsettled state law issue, police departments have varied their approaches. The adoption of Caballes as a matter of state constitutional law now encourages those departments that followed Cancel and Elders to abandon the reasonable suspicion requirement. In this writer’s experience, the Stafford Township Police were the only known department to adopt the suspicionless Caballes standard. This includes the Bradley Beach Department in the Dunbar case, as they argued in the alternative on appeal that reasonable suspicion did exist for the sniff. Our Supreme Court remanded the case for additional fact-finding on that issue.
On the other hand, the New Jersey State Police employ the reasonable suspicion standard announced in Cancel and Elders, as evidenced by the state police testimony in Elders:
“At the hearing, Trooper O’Connor testified that it might have taken as long as an hour for the on-duty canine officer and the dog to arrive. Both Trooper O’Connor and Sergeant Klem insisted that they had reasonable and articulable suspicion that some form of criminal activity was afoot and therefore a drug- sniffing dog was the next logical step.”
Elders, 192 N.J. at 235, n.5.
The Elders Appellate Division opinion was reversed and the evidence suppressed due to an “unconstitutional investigatory detention and request for consent to search.” Elders, 386 N.J. Super. at 252. In reversing, the New Jersey Supreme Court did not address whether reasonable suspicion is required for a canine sniff.
The New Jersey State Police are a Division of the Office of the New Jersey Attorney General, supervised by the Attorney General. See http://nj.gov/oag/. State Police protocol requiring reasonable suspicion for a canine sniff must therefore be consistent with the New Jersey Attorney General’s position dating back at least as far as the underlying facts of Elders, September 17, 2004.
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Ala. v. White, 496 U.S. 325, 330 (1990).
Requiring this less demanding standard for canine sniffs does not hinder law enforcement in any meaningful way. On the other hand, suspicionless sniffs on public thoroughfares embarrass and intimidate the public. The alternative to reasonable suspicion is to give police the power to threaten and deploy canine sniffs at will. The alternative to reasonable suspicion is to have no standard. Presently having no standard to protect the public from embarrassment and intimidation on our public thoroughfares is an affront to our State Constitution.