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First off, it is imperative to know that the Fourth Amendment to the United States Constitution secures the “right of all people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” and mandates that that right “shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

That being said, one must understand that there are a number of exceptions to the warrant requirement, that allow police to search and seize people and items without a written warrant.  To that effect, many courts, including the Supreme, have held that the sniff of a trained police dog dog not even constitute a search under the Fourth Amendment.

The purpose of this article is to discuss some of the more important aspects of search and seizure law as it specifically relates to police dogs.  Logic flows that if a police dog sniff is not a search than police would bring dogs to the scene of any suspicious stop to check for drugs, even if they otherwise have no probable cause for a warrant to search.  This is exactly what the Howard County police have begun to do.  The question is, is this legal/Constitutional?  The short answer is, as it usually is, that it depends.  The point of this article is to give a brief overview of the legality of the k-9 search, enough so that the average person can be at least slightly informed of his or her rights.  After all, our lives in this country are guided by the US Constitutional and its Amendments.  However, very few people, outside of the legal community, have a grasp on any of its provisions. As a Howard County criminal lawyer, it is my goal to change that.

Police dogs are a valuable asset for today’s law enforcement agencies.  Recent efforts to combat narcotics in growing rural areas like Howard County have led to an even greater role for the police dog.  Generally, courts have embraced the use of police dogs. As mentioned above, the Supreme Court has held that a dog sniff is not a search that requires probable cause.  In determining that the canine sniff is not a search under the Fourth Amendment, the Court relied upon the extremely limited nature of the intrusion and the fact that there is no expectation of privacy in the air or in an odor.  Courts have also noted that there is no actual physical intrusion in the area or article sniffed.  Nontneless, minimal physical contact between the dog and the article will not escalate the sniff to a Fourth Amendment “seizure.”

A CANINE SNIFF IS NOT A SEARCH OR SEIZURE UNDER THE FOURTH AMENDMENT
 

The principal that a police dog may sniff an area or article without a search warrant is considered analogous to the plain-view doctrine (which is essentially the idea that if the police see contraband in plain view they can seize it without a warrant) and has become known as the “plain-smell doctrine.”  The use of a dog’s keener sense of smell to detect odors is comparable to the use of an officer’s flashlight to enhance the officer’s perception of that which is already in plain view.

However, and most importantly, in order to utilize this plain-smell doctrine, the police must legitimately be at the location where the sniff occurs or legitimately detaining the article sniffed.  This brings me back to the idea of an officer calling a k-9 unit when he or she senses something suspicions during a routine traffic stop.  In order for the police to be considered “legally where they are,” during a traffic stop they must not hold a suspect during that traffic stop any longer than it would take an ordinary prudent officer to issue a citation for the underlying traffic offense.  Think of it this way.  The Fourth Amendment veil is like an iron curtain that opens only when probable cause or a warrant exists.  During a traffic stop the curtain opens so that the officer can issue a citation for whatever offense was committed (i.e., speeding, tail light out, running a stop sign, etc.). However, the curtain closes immediately upon the issuance of the citation or at the time when the citation should have been issued.

Thus, if an officer is able to have a k-9 unit do a perimeter search of one’s car during the small amount of time that it takes to issue a citation, the Fourth Amendment has been complied with. However, if an officer calls a k-9 unit upon suspicion and holds a suspect even one minute longer than the ordinary time to issue a citation waiting for that k-9 unit to arrive, the Fourth Amendment has been violated.  A violation of the Fourth Amendment will not stop an arrest from taking place, but it can and should lead to the suppression of evidence in court.  Additionally, there is nothing at all wrong with a suspect being issued a traffic citation refusing to wait for a  k-9 officer to arrive and do a random search – believe it or not that happens all the time.  This is essentially a person volunteering to wait to have his or her rights violated.

If your have been the subject of a K-9 search and you feel your rights have been violated, call the Howard County Criminal Attorneys at the law firm Shapiro & Mack for a free and immediate consultation.

Article by David Zwanetz, Esq, Associate Attorney at the law firm of Shapiro & Mack - Howard County’s premier criminal defense firm.

As a Howard County DUI practitioner I have handled countless cases where people have attempted to use their vehicle to sleep off a rough night of drinking and found themselves charged with DUI/DWI.Is is critically important to understand that “driving” for purposes of DUI law is not the same as “driving” in the classic sense of the word.”Driving,” for legal purposes is being in “actual physical control” of a vehicle.  In this definition, the Maryland Legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are able to soberly drive, and those people who represent an imminent threat to the public by reason of their control of the vehicle.  The benchmark Maryland case of Atkinson v. State, 331 Md. 199 (1992), describes six factors to consider when determining of one is in “actual physical control” of a vehicle:

1.      Whether or not the engine is running or the ignition is on (strongest factor)

2.      Whether and in what position the person is found in the vehicle

3.      Whether the person is awake or asleep

4.      Where the vehicle’s ignition key is located

5.      Where the vehicle’s headlights are on

6.      Whether the vehicle is located in the roadway or is legally parked

Thus, it is clear from the factors above, that one can be charged and convicted of DUI/DWI in Maryland without ever actually moving his or her vehicle.Get into the drivers seat of a car, turn the ignition on for heat, and take a nap while drunk is technically, legally, driving while impaired or under the influence in Maryland.The only sure way to avoid a drinking and driving charge in Maryland is to avoid getting into a vehicle with any alcohol in your system.

This article was written by David., Associate Attorney at the law firm of Shapiro & Mack - Howard County, Maryland’s, top Criminal Defense firm. Dave Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

By: David Zwanetz, Esq., Shapiro & Mack in Howard County, Maryland

“What should I do if I’m ever pulled over after having a few drinks?” This question ranks as number two of the top ten most frequently asked. Thus, I have decided to let my philosophy out of the bag. I want to preface this article by saying that I am by no means advocating drinking and driving. With that said, as a defense lawyer focusing on Howard County DUI law (not federal law), I recognize that state DUI law is governed by a set of rules and regulations that should be, but are not, shared with the general public. This article is focused on the rules pertaining to the breath test and why those rules make consenting to a breath test such a terrible decision. The decision to consent or to refuse a breath test is the single most important decision when faced with potential DUI/DWI in Maryland. This tenuous area of law changed in January 2007, making it less advantageous, almost ludicrous, for anyone to ever take a breath test.

First things first, it is imperative to know that the result of a breath test is often used as the paramount evidence to illustrate a defendant’s level of intoxication. In order to lay a proper foundation of how all of this will play out, I must back up a bit. The breath test decision will likely be the second big decision you will have to make if stopped for an alleged drinking and driving offense. The first will be whether or not to consent to field sobriety tests. Just like you have seen on all the television shows, a suspect will get pulled over, the officer will ask for his or her license and registration, and then will ask him or her to step out of their vehicle. Once removed, they will inevitably be asked to submit to field sobriety tests. You know the tests I mean: walking the line, standing on one leg and counting to 10,000, following the pen with your eyes, reciting the alphabet in multiple languages backwards. To cut to the chase, my philosophy is simply to never consent to field sobriety tests. After all, no matter what your mental state, how do you think you would do? As part of the rules, you have the unbridled right to refuse field sobriety tests. In fact, unlike the breath test, there is no penalty for refusing the field sobriety tests. Thus, you can only hurt yourself by going through this dog and pony show. Think about it for a second, you get stopped by the police for suspicion of driving drunk, then the first thing you are asked to do is voluntarily submit to a series of extremely difficult physical demonstrations. The bottom line is that consenting to the field tests is a lose/lose situation. If you do well you can be accused of being an extreme alcoholic that can do difficult things even when drunk, and if you fail the result is clear. Remember, if one were pulled over for DUI and refused the field sobriety tests they may still be arrested on suspicion of dui. Clearly, however, suspicion is much better in court than confirmation of DUI.

Moving on, once stopped for alleged drinking and driving you will likely be arrested, brought back to the police station, and asked whether or not you will consent to a breath test. What should you do? I will simply lay out the rules of the game and the answer should be clear. First of all, without a breath test the State will be forced at trial to prove that you were impaired solely based on the police observations of you. Imagine if you refused field sobriety tests, as I recommended, (which again you can do with no penalty) and refused a breath test. There would simply be little to no evidence to present at trial to show that you were either intoxicated or impaired. Let me pose a hypothetical example: John Doe gets pulled over on a Friday night for speeding. Upon speaking with the police officer, alcohol is detected on Mr. Doe’s breath. Mr. Doe is removed from his car and asked to submit to field sobriety tests. He stops for a moment and thinks about David Zwanetz’s DUI article and decides to be politely uncooperative and refuse to submit to the field tests. Mr. Doe is swiftly arrested, brought back the police station, and asked to submit to the breath test. Thinking “what would Dave Z do?” he refuses the breath test as well. Now what evidence will the State have at trial? 1) Mr. Doe was speeding, 2) Mr. Doe smelled like alcohol. On these facts, at trial, the State would most likely be unable to prove beyond a reasonable doubt that Mr. Doe was either substantially or even slightly impaired. After all, Mr. Doe could surely smell like alcohol without actually consuming alcohol, and speeding is a relatively common offense that could surely be committed by a sober individual.

As I mentioned above, there is no penalty for refusing field sobriety tests, and therefore, no one should ever take them unless he or she is completely alcohol free. There is, however, a penalty for refusing a breath test. This penalty is the only reason why the question of whether or not to take the test is a question at all. Basically, if you refuse a breath test, the maximum criminal penalty you are facing can be increased. But, in order for there to be an enhanced criminal penalty there has to be a criminal conviction, which as I explained above is unlikely if one refuses the tests. Thus, the most worrisome penalty for most people comes not in District or Circuit Court but at the Motor Vehicle Administration. Interestingly, however, as of January 2007 the penalty for refusing a breath test so closely mirrors the penalty for taking the test and blowing a high result that there is simply no logical incentive to consent. Allow me to expand.

If charged with DUI/DWI in Howard County, Maryland, you would be facing both criminal and/or civil penalties. On the criminal end, you would be facing approximately one (1) year in jail and/or $1000.00 in fines. On the civil end, the MVA will conduct a hearing to decide what type of suspension, if any, to impose on your license. The level of suspension you would be facing would vary depending your choice of either taking or refusing the breath test. The penalty for refusing comes by way of the MVA possibly imposing a greater period of license suspension for a person that refuses to submit to a breath test. This is the legislature’s way of encouraging people to take the breath test, and conversely, punishing those who pull the carpet from under the feet of the State. Interestingly, however, in my opinion in January of 2007 the legislature made a major blunder. Below I have broken down the three possible MVA penalties in order to expose the flaw.

- On a first offense DUI/DWI, if you take the breath test and blow a .08 - .14 you could face up to 45 days of license suspension. That suspension can be modified to allow the suspended driver to go to and from work, school, alcohol counseling, and to any pre-planned doctor visits or to get meds.

- On a first offense DUI/DWI if you take the breath test a blow a .15 or above you are facing 90 days of suspension, which can only be modified by getting the ignition interlock system installed on your vehicle for 1 year.

- On a first offense DUI/DWI if you refuse a breath test you are facing 120 days of license suspension, which can only be modified by getting the ignition interlock installed on your vehicle for a period of 1 year.

Now do you see? The MVA/legislative penalty for taking a test and blowing a .15 or higher is almost exactly the same as refusing the test outright. Therefore, there is absolutely no logical incentive to take a breath test and give the Police and the State’s Attorneys the evidence they need to convict you. Additionally, everyone is entitled to a request an MVA hearing where an attorney like me can fight to prevent one from getting suspended at all. The long and short of it is that if your refuse both the field tests and the breath test you will most probably be acquitted in criminal court, where you are facing jail, but have to face minutely smaller penalties at the MVA. Would anyone choose possible jail over possible license suspension? I know I wouldn’t.

In my years of study I have always been fascinated with how little the general public knows about the very laws that govern their daily lives. I find nothing wrong with sharing the rules of the game, even if it means exposing flaws in the system. Unquestionably, with knowledge comes power and in no way do I intend to keep this power to myself.

This article was written by David Zwanetz, Esq., Associate Attorney at the law firm of Shapiro & Mack - Howard County, Maryland’s, top Criminal Defense firm. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.