James Otis, Paul Revere, a routine traffic stop and the Massachusetts Supreme Judicial Court: when it comes to drug-detection, it's not who let the dogs out, it's who wouldn't?

• Author: Morris, Ronen

The British are Coming! The British are Coming! (1)

1. INTRODUCTION

   James Otis once proclaimed that the greatest threat to freedom comes from placing "the liberty of every man in the hands of every petty officer." (2) From the trepidation of these words, our revolutionary forefathers predicated the most basic principles that underlie the Fourth Amendment to the nation's constitution--the principles that protect an individual's right in his person and property against unreasonable searches and seizures at the hands of the government. (3) Though much has changed in our nation's history since the last British solder stormed the privacy of a colonial home, the desire to protect against unfettered government power and unchecked police discretion remains keen to our present sense of freedom and independence. (4) Fueled by rising fears of crime and terrorism, however, modern courts have begun to whittle away at the protective coat of the Fourth Amendment. (5)

   Practicality suggests that certain government intrusions are necessary to ensure that law enforcement officers are afforded an adequate opportunity to meet their challenging goals. (6) Contemporary decisions, however, reflect an unprecedented expansion of the discretionary power of police officers, bringing new relevance to James Otis' historic bellow. (7) Supreme Court sanctioned suspicion-based intrusions again subject individual freedom to the powerful discretion of individual law enforcement personnel. (8) The last vestige of protection against arbitrary police conduct is the simple required correlation between the officer's suspicion and his subsequent conduct. (9) In Commonwealth v. Feyenord, (10) the Massachusetts Supreme Judicial Court effectively eliminated even this correlative requirement by upholding a police officer's decision to summons and await the arrival of a drug-detection canine unit during a routine motor vehicle stop, despite lacking any specific drug-related suspicion. Perhaps now, in the wake of rising police power, the illustrious warnings of Paul Revere as he echoed the fears of his contemporaries on the eve of the revolution appear more prophetic than pragmatic. Perhaps, taken metaphorically, they can be applied any time the "blue and whites" flash incessantly in the rear view mirror. (11)

   This note explores the erosion of the Fourth Amendment as it pertains to the detention of motorists during routine traffic stops. Part II of this note examines the history and evolution of the Fourth Amendment's protection against unreasonable seizures. Part III focuses on the courts' treatment of special exceptions to the general requirement of probable cause, paying particular attention to the Terry analysis of investigatory detentions. Part IV examines the application of the Terry analysis to motor vehicle stops. Part V differentiates between the alternative standards of suspicion used by courts to justify a police officer's decision to summons and use a narcotics-detection canine during a motor vehicle stop. Finally, Part VI articulates that the Massachusetts Supreme Judicial Court has forgone the constitutional principles that govern the Fourth Amendment. Specifically, it concludes that the proper constitutional standard for summonsing and using a narcotics-detecting dog is one of specific drug-related suspicion and that by lowering the standard, the Massachusetts Supreme Judicial Court effectively undermines the constitutional protection against arbitrary seizures.

2. THE FOURTH AMENDMENT AND THE BALANCE OF REASONABLE INTRUSIONS

   The Fourth Amendment protects individuals from arbitrary searches and seizures carried out by agents of the government. (12) The amendment's paramount protection is the assurance that government intrusions, and the way in which they are conducted, will be reasonable. (13) American courts have long struggled to define this "so-called" standard of reasonableness by balancing the government's legitimate interest as a law enforcement entity against the nature and extent to which such interest intrudes upon an individual's right to privacy. (14) Early case law reconciled these competing interests by subjecting all government searches and seizures to strict constitutional parameters. (15) The reasonableness of the government's invasive conduct, in all but extremely limited circumstances, was predicated upon the proper issuance of a warrant supported by probable cause. (16)

   The warrant requirement served a two-fold purpose. First, it ensured that invasive government action would be supported by inferences of probable cause drawn by a neutral magistrate or judge. (17) Second, the warrant requirement limited the scope of the invasive action to that which was no more intrusive than deemed necessary. (18) Even in the limited situations in which a warrant was not required, an officer's conduct was proscribed to the extent that his or her objective interpretation of the facts failed to yield a determination of probable cause. (19)

   The impracticality of such rigid standards became apparent, however, and amidst growing concerns regarding crime and public safety, the balance of competing interests shifted in favor of a more pragmatic approach toward law enforcement. (20) The Supreme Court acknowledged that the practical and realistic needs of modern law enforcement agencies could not be met by stern and inflexible guidelines. (21) To accommodate those needs the Court carved out a series of limited exceptions to its rigid doctrinal precedent. (22) These exceptions enabled law enforcement officials to more readily engage individuals in the absence of a warrant or even probable cause. (23)

   The exceptions, however, were not without boundaries. (24) The principal concerns addressed by the Court in its earlier years continued to linger. (25) The continued emphasis placed on warrants and probable cause in all but extraordinary circumstances illustrated the Court's reluctance to rely upon an officer's own judgment and discretion. (26) Thus, despite the Court's increased recognition of police officers' special training and experience, it refused to grant officers any more discretionary power than absolutely necessary under the circumstances. (27)

3. ERODING THE DOCTRINE OF PROBABLE CAUSE: TEMPORARY DETENTIONS AND SUSPICION BASED POLICE CONDUCT

   The Supreme Court articulates circumstances in which the practical needs of law enforcement outweigh the Fourth Amendment privacy interests of an individual. (28) In many cases, the inquiry turns upon whether the specific law enforcement needs can be achieved in a less intrusive manner. (29) In other cases, the inquiry turns upon whether the individual's privacy interest under the circumstances are diminished due to a lesser expectation of privacy. (30)

   1. Temporary Detentions

   A police officer may temporarily detain an individual without a warrant and without probable cause if the officer reasonably believes that the individual is, or is about to be, engaged in criminal activity. (31) The idea that certain government seizures can be supported by less than probable cause was most notably articulated by the Supreme Court in Terry v. Ohio. (32) In response to the legitimate safety concerns of police officers in the field, the Court upheld the constitutionality of limited weapons searches and incidental detentions on facts insufficient to give rise to probable cause. (33) Although Terry was premised on safety concerns, the purview of its holding has since expanded to cover limited temporary detentions based on less than probable cause for purposes of investigation. (34)

   In recognizing the constitutionality of a suspicion based detention as an exception to the traditional doctrine of probable cause, the Supreme Court conceded that the amount of objective evidence required to justify a citizen-police interaction need only be proportionate to the nature and degree of the intrusiveness of that action. (35) To ensure that such detentions comply with the reasonableness standard of the Fourth Amendment, the Court established a two prong test. (36) The first prong requires that the detention be reasonable at its inception. (37) The second prong requires that the scope of the detention be reasonably related to the underlying circumstances that justified it. (38) Both prongs of this analysis are evaluated on a case by case basis under the "totality of the circumstances" test. (39)

   An investigative detention is reasonable at its inception if, at minimum, the detaining police officer has a reasonable suspicion that a suspected individual is, or is about to be, engaged in criminal activity. (40) Reasonable suspicion requires an objective determination of criminal activity based on specific facts. (41) Under the "totality of the circumstances" test, the requisite level of suspicion is established or negated by the combined propensity of the facts. (42) This propensity may be established from facts that, when viewed independently, suggest completely lawful conduct. (43) In the absence of explicit illegal behavior, courts will consider the probability that each lawful fact will yield an unlawful act. (44) That the totality of facts yield a general propensity of criminality is insufficient to establish a reasonable basis for the detention. (45) Thus, while a police officer may draw inferences of criminal behavior from her training and experiences, she may not rely solely upon a mere hunch or inclination. (46)

   The second prong of the test requires that the investigatory stop be carried out in a reasonable manner. (47) It maintains that the detention must be "reasonably related in scope to the circumstances that justified the interference in the first place." (48) Again, courts rely on the "totality of the circumstances" test to determine whether the detention was reasonable. (49)

   In applying this test, courts will consider whether the police "diligently pursued their investigation." (50) Overly intrusive...