On June 10, 2017, the New Jersey Supreme Court decided State v. Dunbar. The unanimous decision overturned state precedent requiring reasonable suspicion of contraband before police can deploy a canine sniff. Suspicionless canine sniffs are now permitted in New Jersey so long as they do not prolong an otherwise lawful seizure.
Since 1975, The New Jersey Supreme Court had consistently interpreted our State Constitution to provide greater search and seizure protections than the Federal Fourth Amendment. Given these greater protections and the U.S. Supreme Court’s two-Justice dissent against suspicionless sniffs in Illinois v. Caballes, 53 U.S. 405 (2005), it was reasonable to expect at least one dissent in Dunbar. In the absence of dissent, this article considers the rationale for one.
Dunbar overturned two Appellate Division cases requiring reasonable suspicion of contraband to justify a canine sniff, State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992) and State v. Elders, 386 N.J. Super. 208, 228-30 (App. Div. 2006). Reasonable suspicion is a belief based on objective and particularized facts that a suspect was or is involved in criminal activity. State v. Thomas, 110 N.J. 673, 678 (1988).
The fact that the canine sniff in the U.S. Supreme Court’s 2005 Caballes case did not unduly prolong the stop did not distinguish Caballes from Cancel or Elders. In Cancel, the canine sniffed and alerted to the luggage before the defendant retrieved it from the airport luggage carousel and before she was stopped by police. Cancel, at 433. Therefore, reasonable suspicion was required for the canine sniff even though the sniff did not prolong Cancel’s stop. Similarly, the Elders Court held that there was no evidence that the troopers’ continued investigation was overly intrusive or detained defendants unreasonably. Elders, 386 N.J. Super. at 224-225 (emphasis added).
Elders also held that “[t]he test of a justifiable use of a drug-sniffing dog is reasonable suspicion— the same test applicable to justify a request for consent to search.” Id. at 228. In addressing why reasonable suspicion is required before the police can request consent to search, our Supreme Court held that “[t]he reasonable and articulable suspicion standard is derived from the New Jersey Constitution and serves the prophylactic purpose of preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop.” State v. Carty, 170 N.J. 632, 635 (2002). “Not having an objective standard or rule to govern the exercise of discretion would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Id. at 641.
The Carty rationale applies equally to the suspicionless canine sniffs that the police can now use to turn routine traffic stops into “fishing expeditions for criminal activity.” Because permitting suspicionless canine sniffs “invites intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches”, reasonable suspicion should still be required.
In his Caballes dissent, Justice Souter noted that since the 1983 Place decision, evidence of canine fallibility has developed. Caballes, 53 U.S. at 412. “In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.” Id. In Justice Souter’s view, evidence of canine fallibility is a sufficient basis to treat canine sniffs as limited searches requiring reasonable suspicion. Id. at 411. When canines make mistakes, suspicionless sniffs subject innocent people to full searches of their vehicles, persons, and effects. These innocent people are then sent on their way with neither meaningful recourse, nor the potential for police deterrence. Reasonable suspicion is thus necessary to prevent innocent people from being subjected to full searches premised on nothing more than suspicionless sniffs and false alerts.
Justice Souter noted that the uncritical adherence to Place renders the Fourth Amendment “indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks.” Caballes, at 412. Article 1, paragraph 7 of our State Constitution should not be indifferent to these “indiscriminate sweeps.”
Moreover, Justice Souter noted that Place, the case relied upon by the Caballes majority, involved independent grounds to suspect that the luggage in question contained contraband before they employed the dog sniff. See Place, 462 U.S. at 698, n.5 (describing how Place had acted suspiciously in line at the airport and had labeled his luggage with inconsistent and fictional addresses). The same is true of the facts in State v. Cancel. Thus, the New Jersey Supreme Court in Dunbar overlooked the crucial details of Cancel just as the U.S. Supreme Court overlooked the crucial details of Place.
The New Jersey Constitution, unlike the federal, requires that reasonable suspicion exist before an officer can request consent to search. State v. Johnson, 68 N.J. 349, 353-354 (1975). Since reasonable suspicion is required for a voluntary search, it should logically be required for an involuntary and adversarial canine sniff. While a sniff limited to the exterior of a vehicle is a “limited search”, the limited nature justifies a lesser standard than probable cause, i.e. reasonable suspicion. It does not justify a search conducted without standards.
Canine sniffs should also require reasonable suspicion to avoid sanctioning the coercion of consent under circumstances wherein an individual is told that a canine will be deployed if s/he does not consent to a search. With the sanctioning of suspicionless canine sniffs, our Supreme Court sanctions this coercive scenario since our courts do not look at the subjective intent of the officer, but only the objective reasonableness of deploying a canine without reasonable suspicion. See State v. Bruzzese, 94 N.J. 210 (1983). Now that New Jersey has lock-stepped with the federal Caballes rule, such a threat (and subsequent canine sniff) is objectively reasonable. Dunbar thus creates a conflict of law in New Jersey because it undermines Johnson’s requirement that reasonable suspicion exist before consent can be requested, i.e. it permits the coercion of consent through the threat of a canine sniff without necessitating a request for consent.
In the wake of Dunbar, suspicionless canine sniffs need not be within the scope of any motor vehicle stop. Just as in Caballes, the police do not need any evidence suggesting the presence of contraband 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 when the scent of their lawfully-possessed medicine remains in their vehicles.
Suspicionless sniffs also run afoul of Terry v. Ohio, 392 U.S. 1 (1968), and the federal requirement that the police action be “reasonably related in scope to the circumstances justifying the initial interference”, i.e. they impermissibly broaden the scope of the seizure of the person and their effects. Our State Supreme Court also overlooked the significance of the adversarial, embarrassing, and intimidating nature of a canine sniff. The adversarial nature alone justifies requiring reasonable suspicion under the New Jersey Constitution. See State v. Davis, 104 N.J. 490, 504 (1986) (holding that “even if the initial stop is deemed constitutional, a further inquiry must be made to determine whether the subsequent scope of the seizure was justified by the least intrusive investigative techniques reasonably available to verify or dispel suspicion in the shortest period of time.”) The fear and humiliation engendered by the canine sniff also justifies requiring reasonable suspicion. Id. at 478-479.
Justice Ginsburg responded to the Caballes majority’s focus on there being no legitimate expectation of privacy in concealed contraband: “Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty. Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.” Caballes, 53 U.S. at 422.
While it is unclear how often the sniff of parked cars or cars stopped at traffic lights had been occurring in New Jersey, these suspicionless sniffs are 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 varied their approaches. The adoption of Caballes as a matter of state constitutional law now encourages those departments that followed Cancel and Elders to conduct canine sniffs on a whim. Stafford Township was the only police department known to this writer to adopt the suspicionless Caballes standard before Dunbar. That includes the Bradley Beach Police in the Dunbar case, as they argued in the alternative on appeal that reasonable suspicion did exist for their canine sniff. Our Supreme Court remanded the case for additional fact-finding on that issue.
On the other hand, the New Jersey State Police had employed the reasonable suspicion standard announced in Cancel and Elders, as evidenced by the state police testimony in Elders. The New Jersey State Police are a Division of the Office of the New Jersey Attorney General, supervised by the Attorney General. State Police protocol requiring reasonable suspicion for a canine sniff must have therefore be consistent with the New Jersey Attorney General’s position dating back at least as far as the facts of Elders, September 17, 2004.
The Dunbar decision overturned decades of New Jersey precedent. It also demonstrated a change in our chief law enforcement officer’s long-standing position. Like our state courts, the Attorney General used to recognize that a canine sniff constituted a limited search. The position of our courts and Attorney General is now that a canine sniff is not a search, police can conduct them on a whim, and citizens are required to acquiesce.