Imagine that you’ve been pulled over by the police at a traffic stop, even though you don’t know what you’re supposed to have done wrong. Now imagine that the officer who pulled you over is accompanied by a drug-sniffing German Shepherd. Being stopped by a police officer is stressful enough, but when the officer brings in a “K-9 unit”, that can be even scarier.

Many people in this situation believe that they have to let the police dog sniff them and their vehicle, but this isn’t actually the case. In fact, in some cases it’s a bad idea to submit to a police dog sniff test even if you know you haven’t done anything wrong. A New Mexico man learned that lesson the hard way, after a police dog falsely alerted officers to the presence of drugs near the car.

New Mexico Man Endures Humiliating Cavity Searches after Traffic Stop

When New Mexico resident David Eckert was pulled over by a Deming police officer, there was no way he could anticipate the humiliation and invasion of privacy he would experience over the next several hours. When the officer asked him to get out of his vehicle, he complied, but the officer became suspicious because Eckert appeared to be holding his legs together and clenching his buttocks. As a result of this alleged suspicion, the officer detained Eckert, obtained a search warrant for an anal cavity search and took Eckert to the Gila Regional Medical Center in Silver City. There, in the hands of doctors compliant with the instructions of the overseeing police and without Eckert’s consent, medical staff performed 3 enemas, 2 x-rays, and finally forced sedation and colonoscopy on him in order to admit that Eckert had no drugs on his person. To add insult to injury, the hospital sent Eckert the bill for approximately $6,000 for the “procedures”.

Mr. Eckert filed a federal lawsuit against the city of Deming and Hidalgo County as a result of his mistreatment, and the city and county recently agreed to settle for $1.6 million. While it’s good news and a good message that at least Eckert received meaningful compensation for this version of anal rape, this situation should never have happened in the first place. Eckert was subjected to these “cavity searches” largely on the basis of the police dog’s false assertion that there were drugs either in the car or on the driver’s person.

This case raises important questions: has the “War on Drugs” damaged our society? when can police use drug-sniffing dogs? when do citizens have the right to refuse a dog sniff test?

Probable Cause Needed for Search

To answer the second two questions, (there isn’t enough time or space now to talk about the “War on Drugs”) let’s start with the basics of the Fourth Amendment. This Amendment protects against “unreasonable” searches by federal and state law enforcement, but it also means that police officers can search you and your property if they have “probable cause” to do so. In some cases, an officer might need a search warrant, but they can also search without a warrant if the particular circumstances justify it (for example, if smoke was billowing out of a car and they could smell marijuana).

Unfortunately, based on the ruling in the 2005 case of Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to employ drug-sniffing dogs during a legitimate traffic stop. However, if an officer doesn’t have a police dog with them at the time of the traffic stop, they do need to have probable cause to detain you until a K-9 unit can be brought in. If an officer does detain you, you have the right to refuse any searches, and the right to refuse to unlock the trunk without a warrant.

Please take note from the story above and other experience: Your refusal may not stop the police from detaining you and using the K-9 anyway. If the police arrest you, and if your defense lawyer “moves to suppress”, and a judge later determines that the officer had no right to keep you there while waiting to bring in a drug-sniffing dog, the evidence against you can be thrown out in court.

Drug-Sniffing Dogs Are Often Wrong

Drug-sniffing dogs are often used as the basis for probable cause to search a vehicle at a traffic stop, but there’s a lot of evidence suggesting that they shouldn’t be. According to a data analysis performed by the Chicago Tribune in 2011, less than half of all police dog alerts (44%, to be exact) actually led to the discovery of drugs or drug paraphernalia. Even more alarmingly, the Tribune found that the accuracy rate went down to 27% for Hispanic drivers, suggesting that even if it’s unintentional, handlers may be giving their dogs certain cues based on race.

Many police dogs are not trained well enough to respond only to the scent of drugs and may give an alert based on other cues, such as an officer leading them around a car several times or spending too long examining a vehicle. Knowing this, it seems absurd that so many police departments still rely heavily on drug-sniffing dogs and that an alert from a police dog is enough to indicate the “probable cause” necessary to search innocent people like Mr. Eckert.

If you are facing criminal charges after your person or vehicle was searched on the basis of a police dog’s alert, it’s important that you contact a skilled criminal defense attorney as soon as possible. Law enforcement may have violated your rights in the search and any evidence they obtained may not be admissible in court as a result. The only way to know for sure is to work with a defense lawyer who has handled this type of case before.

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