In the wake of Dunbar, canine sniffs need not be within the scope of the motor vehicle stop. Just as in Caballes, the police did not detect the odor of marijuana or note any other evidence suggesting the presence of illegal drugs before broadening the scope of the stop.
Moreover, canines do not distinguish between legally and illegally possessed drugs. This creates additional concerns for law-abiding possessors of prescription drugs and/or medical marijuana being subjected to full searches derived from suspicionless canine sniffs.
Regarding the second prong of Terry, Justice Ginsburg noted that:
In applying Terry, the Court has several times indicated that the limitation on “scope” is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 188 (2004) (an officer’s request that an individual identify himself “has an immediate relation to the purpose, rationale, and practical demands of a Terry stop”); United States v. Hensley, 469 U.S. 221, 235 (1985) (examining, under Terry, both “the length and intrusiveness of the stop and detention”); Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion. . . .”).
Caballes, at 420-421 (emphasis added).
Thus, requiring reasonable suspicion for a canine sniff is not only consistent with New Jersey precedent and the enhanced protections afforded by our Constitution, but also consistent with federal precedent in conflict with Caballes. Justice Ginsburg continued:
In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry (was the police action “reasonably related in scope to the circumstances [justifying] the [initial] interference”). 392 U.S., at 20. A drug-detection dog is an intimidating animal. Cf. United States v. Williams, 356 F. 3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) (“drug dogs are not lap dogs”). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes — who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit — was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” cf. Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); United States v. Place, 462 U.S. 696, 707 (1983), the sniff surely broadened the scope of the traffic-violation-related seizure.
Caballes, 53 U.S. at 421-422.