Federal Judge Applies GPS Ruling To Drug Dog Traffic Stop
By Michael Komorn
Last week, a judge with the US District Court for the Southern District of West Virginia applied the precedent to the common police practice of “permeation” where a police officer enters a suspect’s vehicle without warrant or consent to facilitate a drug dog sniff of the car’s exterior.
In January 2012, Justice Antonin Scalia penned the United States v. Jones decision that held attaching a GPS tracking device without a warrant was not permissible.
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“The government physically occupied private property for the purpose of obtaining information,” Justice Scalia wrote for the unanimous court. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
This finding was reiterated with a decision by the Supreme Court in March, again authorized by Justice Scalia, ruling that a police officer could not use a drug dog on the porch of a home without a warrant.
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These recent decisions came to the forefront when Marcus Wyn Taylor was pulled over after making an allegedly unsafe turn to his home in a Charleston, West Virginia public housing project at 6pm on October 24, 2012. Charleston Police Corporal Owen Morris suspected Taylor of being a drug dealer because he had recognized the man sat on his porch “at all hours of the day and night.”
The officers approached the car and noted that Taylor seemed nervous. Taylor asked if he could speak to his lawyer, but the officers refused. When Taylor opened the glove compartment to retrieve his license and registration, Detective Daniels caught a glimpse of an unknown amount of cash.
Taylor was ordered out of the Buick, and he asked again to speak to his lawyer while refusing to consent to a search of the car. Taylor was handcuffed for “aggressive behavior.” A drug dog was called in, as about twenty local residents gathered to watch the spectacle.
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“One must take into consideration as well Mr. Moore’s appearance on the scene and his uncooperativeness, and a growing crowd from which at least a couple of hostile utterances were heard,” Judge Copenhaver ruled. “The stop was not prolonged beyond the time reasonably required to complete its mission under the circumstances faced by the officers.”
Although no actual drugs were found, there was a FN Five-seveN semi-auto pistol under the driver’s seat and $93,157 in the trunk. Taylor was arrested for being a felon in possession of a firearm.
Had the dog not alerted, Taylor would have been sent on his way. The judge found the entry into the Buick to be a constitutional violation.
“As in Jones and Jardines, law enforcement physically occupied private property — the Buick — for the purpose of obtaining information — the otherwise undetectable, or less easily detected, odors of controlled substances — found therein,” Judge Copenhaver ruled. “Probable cause was lacking for that unreasonable search. The search thus transgressed the Fourth Amendment.”
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