No!
[A] canine alert alone does not establish probable cause sufficient to fully search or arrest the occupant of a vehicle.
State v. Dudsak
2021 – Ohio – 3632
Ninth District Appellate Court
Medina County, Ohio
October 12, 2021
On an unknown date just before 4:30 p.m., a canine officer observed Mr. Dustin Dudsak’s driving his vehicle eastbound on I-76 with a female in the passenger seat. The officer was patrolling the area with his canine partner and noticed the vehicle because it had illegally tinted windows. The officer followed the vehicle as it exited the highway and saw Mr. Dudsak, “make a motion towards the passenger compartment as if accessing the glove box.”. Shortly thereafter, Mr. Dudsak turned left into a gas station across three lanes of traffic and almost struck a vehicle in an adjacent lane.
Based on the traffic violations observed, the officer followed Mr. Dudsak into the gas station parking lot and activated his cruiser’s lights and sirens. Mr. Dudsak continued to drive through two portions of the parking lot before stopping near the roadway. The officer took note of the additional time it took Mr. Dudsak to stop. Additionally, upon his approach, the officer found certain aspects of Mr. Dudsak’s behavior suspicious. Specifically, he found suspicious the fact that Mr. Dudsak tried rolling up his window most of the way to talk and tried covering his face with a mask while he was smoking a freshly lit cigarette.
The officer also found it suspicious that Mr. Dudsak:
(1) Rolled his window most of the way up instead of down as he (the officer) approached the car and
(2) Tried to cover his face with a mask when he appeared to be actively smoking a freshly lit cigarette.
The officer spoke with Mr. Dudsak and his female passenger. Because Mr. Dudsak had a protection order against him and the female passenger did not have any identification on her person, the officer returned to his cruiser to verify her identity and ensure that she was not the female named in the protection order. As he did so, he called for assistance, and the back-up officer who arrived began the process of generating a warning or traffic ticket for Mr. Dudsak. Meanwhile, the officer spoke with Mr. Dudsak about the suspicious behavior he had observed.
Mr. Dudsak denied reaching toward the vehicle’s glove box and insisted that he had only been “messing with his girlfriend’s skirt.”. In short there was an awfully lot going on this car at the time the officer stopped the vehicle:
- Bad driving.
- Smoking a cigarette behind a mask so he would be protected from the Corona virus.
- Messing with a skirt … cleverly masked as reaching for the glove compartment; and
- Concealment of methamphetamine … which will soon be discovered.
Mr. Dudsak exited the vehicle at the officer’s command, and the officer performed a pat down. The officer did not find any weapons or contraband on Mr. Dudsak’s person, and Mr. Dudsak refused to consent to a vehicle search. The officer was still troubled by the things he had observed, however, so he decided to walk his canine around the vehicle. The canine alerted to the odor of narcotics coming from the vehicle at a location near the driver’s side window.
The officer searched Mr. Dudsak’s vehicle but failed to find any illegal narcotics. He then immediately searched Mr. Dudsak because he suspected “the narcotics may be on the driver or passenger * * * based on everything that [he] had observed and all the suspicious behavior and the dog’s alert and not finding any narcotics [in the vehicle].” When the officer reached into the watch pocket of Mr. Dudsak’s pants, he extracted a small plastic vial containing methamphetamine. Most often narcotics are found in the watch pocket of jeans rather than actual watches. That begs the question … should the name of this small pocket be changed from the watch pocket to the narcotics pocket?
Mr. Dudsak was indicted on one count of aggravated possession of methamphetamine. He moved to suppress the evidence against him. The state filed a brief in opposition, and the trial court held a hearing on his motion. The court determined that the officer lacked probable cause to conduct a warrantless search of Mr. Dudsak’s person. Thus, it granted the motion to suppress. The State of Ohio appealed and upheld the suppression of Mr. Dudsak’s methamphetamine as it held “The particular facts and circumstances presented herein do not support the conclusion that [the officer] had probable cause to believe Mr. Dudsak was guilty of a crime.”.
Information for this article was obtained from State v. Dudsak, 2021 – Ohio – 3632.
This decision was issued by the Ninth District which is binding in Lorain, Medina, Summit and Wayne Counties.
Lessons Learned:
- A canine alert on a vehicle does not permit law enforcement to search the person of the vehicle occupants. The Ninth District Court reviewed previous decisions with a similar fact pattern.
“[A] canine alert alone does not establish probable cause sufficient to fully search or arrest the occupant of a vehicle.” State v. Robinson, 9th Dist. Wayne No. 10CA0022, 2012-Ohio-2428
“The requisite probable cause for the search must be “particularized with respect to that person … This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search … the [place] where the person may happen to be.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
- The State of Ohio made an attempt to use a legally different legal method to admit the methamphetamine. The state argued that the officer had enough probable cause without the canine alert to arrest Mr. Dudsak and that the officer discovered the vial of methamphetamine in his narcotics pocket as a search incident to arrest. The Ninth District Appellate Court rejected that argument as it held “Upon review, this Court cannot conclude that [the officer] had probable cause to search Mr. Dudsak under the totality of the circumstances presented herein. [The officer] saw Mr. Dudsak make one “abnormal” movement toward the passenger compartment. Mr. Dudsak explained, however, that he had simply been “messing with his girlfriend’s skirt.” Moreover, at the point in time that [the officer] observed Mr. Dudsak’s movement, he had yet to activate his lights and sirens or otherwise give Mr. Dudsak any indication that he intended to stop his vehicle. The record is devoid of any evidence that Mr. Dudsak was even aware that [the officer] was behind him, and [the officer] did not testify that he saw any furtive movements once he signaled Mr. Dudsak to stop.”. The court’s probable rejection was underscored with this statement “To the extent Mr. Dudsak began rolling up his window when Officer Petit approached and tried covering his face with a mask while smoking a cigarette, this Court would note that the events herein took place during a global pandemic. It is not unreasonable that an individual would be concerned or confused about distancing or mask protocols during a traffic stop.”.
- The arresting officer had a gut feeling that Mr. Dudsak was engaged in criminal activity and in this case felonious criminal activity and he was right! The officer should be commended for identifying that Mr. Dudsak, the methamphetamine carrier, was simultaneously trying to cover his face while smoking a cigarette was indicative of something suspicious other than protecting his health during a global pandemic. For more on an officer’s gut feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But Was it Legally Justified?.
Does your agency train on Canine Searches?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!