Commonwealth v. Feyenord

Greaney, J.

(concurring). I agree with the court that the defendant’s motion to suppress was properly denied because the police acted lawfully. In the circumstances that occurred, when a police officer harbors a reasonable suspicion that a crime has been committed, and that suspicion escalates, based on multiple false and evasive responses, and then reasonably focuses on the possibility of drug-related criminal activity,1 a dog sniff around the exterior of an otherwise lawfully stopped vehicle is a permissible investigative technique. I write separately, however, to *87voice my concern that it not become a routine occurrence to summon a drug sniffing dog to the scene whenever the operator, or passengers, of a vehicle that has been stopped for a minor traffic violation, appear nervous or answer an officer’s questions inconsistently.

In our democratic society, special concern must be vigilantly exercised by the courts to balance the rights of the police under the principles of Terry v. Ohio, 392 U.S. 1 (1968) (which have expanded considerably over the years since Terry was decided), with the protections afforded less powerful citizens who often feel the brunt of Terry-type stops. Many of these citizens (some even noncitizens), because of their economic standing, will be driving vehicles with defective equipment or driving them without proper licenses or registrations. Moreover, these vehicles will frequently be operated in areas of cities that have known drug zones (Lowell, Holyoke, Springfield, parts of Boston, to mention a few). The police, endeavoring to stamp out drug commerce and use, will invariably be making traffic stops in these zones. The lack of a license or proper registration or the commission of a routine traffic violation, coupled with nervousness, or even some evasion on the part of the operator or others in the vehicle, may provide a basis to continue detention under Terry principles, but should not, by themselves, provide a basis to bring in a drug-sniffing dog. As cogently noted by Professor LaFave:

“Allowing . . . dogs to be used serves only as a positive encouragement for police to engage in pretext and subterfuge, hardly a defensible move given the common knowledge that traffic-law enforcement has been diverted from its justified objectives to serve as a means for seeking out drugs. Allowing use of the drug dogs at all in conjunction with traffic stops can only encourage the making of stops for insignificant and technical violations on the basis of unarticulated suspicions and mere hunches or, at worst, on totally arbitrary and discriminatory bases. Moreover, allowing use of the dogs at all adds to the process another decision, whether to summon a drug dog, that the cases indicate requires no reasonable suspicion nor, for that matter, any justification whatsoever, but that *88the practice indicates is also likely to be made on an arbitrary basis.” (Footnotes omitted.)

LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1896 (2004). See 4 W.R. LaFave, Search and Seizure § 9.3(f), at 400 (4th ed. 2004).

This case also provides an opportunity to speak directly to the subject of racial or ethnic profiling in the context of the use of drug sniffing dogs during traffic stops. The majority of police officers proceed in good faith when making traffic stops. Some officers, however, do not and proceed more on stereotypical thinking and hunches, using dubious investigative techniques that result in the harassment of racial and ethnic minorities. In his concurring opinion in Commonwealth v. Gonsalves, 429 Mass. 658 (1999), Justice Ireland wrote of “the dangers posed by unfettered police power to order individuals out of automobiles without any justification” and of documented “widespread public concerns about police profiling, commonly referred to as ‘DWB — driving while black.’ ” Id. at 669, 670 (Ireland, J., concurring). The same kind of discriminatory conduct is also directed at other ethnic groups, especially Hispanics. A motorist must never be stopped based on his or her race or ethnicity without legally sufficient cause. Getting a traffic ticket is never a happy experience. Getting a traffic ticket if you are a black or Hispanic person who has committed a minor traffic violation and then been questioned in public view by an armed police officer determined to find a basis, or extract consent, to bring in a police dog, is humiliating, painful, and unlawful. See generally S.R. Gross, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651 (2002).

A dog sniff is not a search under the Fourth Amendment to the United States Constitution, see Illinois v. Caballes, 543 U.S. 405, 407-410 (2005); United States v. Place, 462 U.S. 696, 707 (1983), and the court correctly concludes that a dog sniff of the exterior of an automobile is likewise not a search within the meaning of art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 607-609 (1993) (helicopter surveillance of backyard *89of private home not a search); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991) (measure of expectation of privacy under art. 14 is “(1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable”). I would pursue the art. 14 analysis a step further, however, and candidly acknowledge that the use of a dog during a traffic stop, while not a full search in the constitutional sense, is more than a de minimis intrusion into the detained individual’s privacy interests. See Commonwealth v. Gonsalves, supra at 662-663 (art. 14 extends protections to drivers and occupants of motor vehicles beyond those granted by Fourth Amendment and protects Massachusetts citizens from being subjected to unjustified exit orders during routine traffic stops). I would recognize that the act of summoning a dog heightens the tension inherent in any traffic stop to a measurable degree, and that the use of a drug-sniffing dog, even around the exterior of a vehicle, sends a clear public signal, not only to the detained motorist, but to all others passing by, that a drug investigation is in progress. See 4 W.R. LaFave, Search and Seizure, supra at § 9.3(f), at 401. In sum, “[ijnjecting [a dog] into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer.” Illinois v. Caballes, supra at 421 (Ginsburg, J., dissenting). Taking a broader perspective, there is something viscerally disturbing about the use of police dogs in traffic stops — something that hints at the oppressive measures used by police in societies where respect for personal freedom and privacy are devalued or nonexistent.

In my view, we should clearly delineate the permissible bounds of a routine traffic stop, beyond which police officers may not go, in order fully to protect the art. 14 rights of all our citizens and to avoid even the appearance of having countenanced official discrimination and harassment. A police officer conducting a traffic stop may not summon a canine officer and dog on a mere hunch or unarticulated suspicion that drugs might be discovered in the stopped vehicle. See State v. Wiegand, 645 N.W.2d 125, 136-137 (Minn. 2002). Nor may the officer continue to engage the vehicle’s occupants in arbitrary or dila*90tory questioning, thus surreptitiously enlarging the duration and scope of the stop, in the expectation that circumstances may turn up justification, or consent obtained, to initiate a dog sniff of the vehicle. See People v. Cox, 202 Ill. 2d 462, 470-471 (2002), cert. denied, 539 U.S. 937 (2003); State v. Mitchell, 265 Kan. 238, 244-245 (1998). Even when an officer’s decision to summon a dog is based on a justifiable suspicion of drug-related activity that arose during the course of the stop, the dog sniff and its fruits should be suppressed if tainted by the officer’s protracted detention of the vehicle’s occupants and failure promptly to terminate the stop when its original lawful objectives are accomplished. See Commonwealth v. McCleery, 345 Mass. 151, 153-154 (1962). The court recognizes this to be true, ante at 78 n.5, but, nonetheless, considers it significant that the defendant’s detention “was not overly prolonged or onerous in duration” and “lasted no longer than thirty minutes.” Ante at 81. In the usual case, thirty minutes is too long to detain a motorist, in order to effectuate a dog sniff of the vehicle, in the absence of a reasonable articulable suspicion of drug-related activity. An officer’s conduct during a Terry-type stop of a motor vehicle must be at all times lawfully related in scope to the circumstances that justified the stop in the first place, or to unfolding circumstances as they develop. See Terry v. Ohio, supra at 19-20. We must ensure that, under art. 14, the use of a drug-sniffing dog in connection with a routine traffic stop remains the exception and does not become the rule.

The situation presented to the State trooper was fused with tension and not simply one in which the defendant had difficulty in producing proper documentation. In my view, the contradictory statements given by the two men with respect to their relationship and travel destination (the defendant identified his passenger as his brother-in-law and stated that they were traveling to see a “friend” in Putnam, Connecticut, while his passenger declared that he knew the defendant only as “Pat” and asserted that their intended destination was Brooklyn, New York) raised grave concerns that virtually compelled Trooper Pinkes, who was trained and experienced in narcotics investigations, to pursue further the possibility of illegal drug activity.