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Dog Sniff Searches Limited by North Carolina Court of Appeals

On July 1, 2014, the North Carolina Court of Appeals released its opinion in State v. Cottrell in which the court limited the use of police dog drug sniffs following traffic stops.

In Cottrell, the defendant was observed driving without turning on his headlights. The law enforcement officer stopped him for this infraction as well as a possible noise violation due to the volume of his radio. Realizing his lights were off, Cottrell turned the lights on before the stop and apologized to the officer who proceeded to take the driver’s license and registration to ensure they were valid and there were no outstanding warrants. While confirming everything was in order, the officer also ran a record check and discovered the defendant had past convictions for drug charges. The officer returned to the defendant’s car and told him he was going to let him go with a warning on the headlights and to please turn down his radio.

Although the purpose of his initial stop was complete, the officer smelled cologne as he returned to Cottrell’s car, so based on this smell and Cottrell’s past drug charges, the officer proceeded to further question Cottrell. Cottrell denied the officer’s request for consent to search his car at which point the officer informed Cottrell that he would just call a drug dog to the scene if he wouldn’t give consent. Following this statement by the officer, Cottrell relented and let the officer search – a search which eventually revealed a small bag of cocaine in the glove box.

On a writ of certiorari to the North Carolina Court of Appeals, the court affirmed well established law that once an officer has completed a traffic stop, the officer “must have the driver’s consent [to continue questioning] or reasonable articulable suspicion that illegal activity is afoot.” In Cottrell the Court held that the smell of cologne and a bad criminal record do not amount to “reasonable articulable suspicion.” The Court further held that the defendant’s consent was not lawfully obtained because Cottrell was not free to go as the officer had never returned his license.

Most importantly, the court also held that the officer’s threat of obtaining a dog to sniff in order to coerce consent was improper as the Cop could not have lawfully obtained a dog sniff in this scenario. Although the State argued that dog searches are legal because the wait time for them is minimal, the Court disagreed and held that in prior “dog sniff” cases, the dog was either already at the scene or was called to the scene prior to the completion of the initial, lawful purpose of the stop. In Cottrell’s situation, the stop had been completed and the officer had not yet actually called for the dog, therefore he was not permitted to continue to detain Cottrell unless he had reasonable, articulable suspicion to do so.

In summary, Cottrell appears to hold that in North Carolina, once the initial purpose of a traffic stop has been completed, an officer may not perform a “dog sniff” search unless – 1) the canine is already on scene or has already been called to the scene prior to completion of the stop, 2) there is reasonable, articulable suspicion of illegal activity to justify holding you until a dog arrives, or 3) you consent to further questioning and consent to waiting for the dog to arrive.

If you or someone you know were recently arrested following a traffic stop in which a drug dog was used or threatened to be used to get consent, a good criminal defense attorney may be able to suppress any information obtained as a result. The lawyers at the Clifford Division of Clifford Clendenin & O’Hale, LLP have handled hundreds of cases involving searches and successfully suppressed evidence in many. We are knowledgeable in the law and will fight for your rights. If you need criminal law representation, call 336-574-2788 or email clifford@cliffordlawoffice.com.

For more information, contact the Clifford Division of Clifford, Clendenin & O'hale.

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