Using Drug Sniffing Dogs: Commonwealth v. Feyenord, 445 Mass. 72 (2005)

More and more we are seeing searches and arrests made in Massachusetts that stem from the use of drug sniffing dogs. Take for the example the case of Johnny V. Nunez, a Boston man arrested last night for trafficking heroin. Nunez was stopped on Route 93 for routine motor vehicle violations. Drug paraphernalia was found in his car prompting the trooper to call for a K9 unit. The dog arrived, “hit” on the car and an ultimate search revealed the presence of more than a kilo of heroin. None of this would have occurred without the use of the drug sniffing dog. This post focuses on the legality of using drug-sniffing dogs in Massachusetts as discussed in Commonwealth v. Feyenord, 445 Mass. 72 (2005). 

The Facts in Commonwealth v. Feyenord

In May of 2000 a Massachusetts State Police Officer made a stop for a car having only one headlight. The driver, Feyenord was unable to produce any identification. When asked who he was he waivered. The passenger did produce identification. The trooper then separated the two and continued to try to get a positive identification on who Feyenord really was. The stories provided by Feyenord and the passenger never matched. Consequently, the trooper told Feyenord to remain in the car. He was not handcuffed however he was not free to leave either. Another trooper with a drug sniffing dog appeared. The dog hit on the trunk of the car. The troopers searched the car finding crack cocaine. The detention of Feyenord from the time of the stop until the dog hit on the trunk was about twenty-five to thirty minutes.

What Level of Reasonable Suspicion is Needed to Justify Utilizing A Drug Sniffing Dog?

The Court in this case found that the inconsistencies in the responses of the defendant and his passenger gave rise to reasonable suspicion that both parties were engaged in criminal activity. What was unsettled at the time of this case was whether the police uncertainty about what crime might be afoot warranted summonsing the dog. The Court held that in fact the officer did not have to know what crime was being committed but his actions in confirming or dispelling his suspicions must be reasonable. Here, detention until the dog arrived was deemed reasonable. In addition, a thirty minute period of detention was not considered unreasonable. In a concurring opinion Justice Greaney against routinely summonsing dogs to the scene just because a driver is nervous or responses to questions are not consistent. He also warned against ethnic and racial profiling. This is a concern I express regularly. Here, Nunez, an Hispanic male at best committing a minor motor vehicle violation ends up being detained and searched.

The dissent in Feyenord made clear its position that reasonable suspicion did not exist here. It held that the trooper’s conclusion that “something meriting further investigation was afoot” did not constitute reasonable suspicion. The suspicion voiced by the trooper was not particularized to drugs suggesting that he had no more than a hunch that something illegal was up.

Does the Use of a Drug Sniffing Dog Constitute a Search?

Feyenord challenged the use of the dog as constituting a search and seizure in violation of the 4th Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The Court held that there is no reasonable expectation of privacy in odors emanating from motor vehicles. Thus, a dog sniff of a properly stopped car is not a search. In a footnote the Supreme Judicial Court noted that a different analysis might be used where dogs sniff outside of someone’s home. Justice Greaney’s concurring opinion warned that using a drug sniffing dog “is more than a de minimus intrustion” and that greater scrutiny be applied to challenges to the constitutionality of these stops.

The Future of Feyenord

It is unlikely that this issue is settled in Massachusetts. Both the concurring and dissenting opinions caution that there is great potential for abuse in situations where routine motor vehicle stops result in detentions, a call for drug-sniffing dogs and a search and seizure. There is no bright line defining what is constitutes reasonable suspicion in these cases. Constant attacks on reasonable suspicion might result in the Supreme Judicial Court revisiting this case.