By Drew Bacharach

To lead off our judicial watch segment, we have a recent decision from the 8th Circuit.   Canine sniff cases are all the rage for the Supreme Court this term, and the the 8th Circuit is following suit.  The issue  in United States v. Grant was whether the officer’s use of “declarative language” amounted to coercing a suspect to consent to a canine sniff of his vehicle.

The facts are as follows.  As the officer was completing the traffic stop, he asked the suspect one last question — whether he had a criminal record.  When the suspect admitted to a prior arrest for marijuana possession, the officer asked for consent to perform a canine sniff of his vehicle.  The key issue was the change of language halfway through this request, as follows: Officer:  I think what we’re going to do is, because of your—I mean, what would you think about it if I had a dog come and go around it? If he doesn’t indicate anything, then we’ll get you going.   Suspect:  Okay.  Officer: Is that all right?  Suspect:  Sure.

Twenty-two minutes later, the narcotics canine arrived and positively alerted to narcotics in the vehicle.  A subsequent search revealed cocaine.  The defendant’s motion to suppress argued that the officer’s initial language amounted to an official command to allow the search, invalidating the consent.   Reversing the district court’s decision to suppress the evidence, the 8th Circuit found that the officer’s adherence to mom’s age-old advice to be polite and choose his words wisely saved the search.  It reasoned that there is a “constitutionally significant distinction between an official command and a request that may be refused.”  Because the officer made it clear that he was seeking permission, a reasonable person would understand that a denial was possible.  The suspect’s decision to consent to the canine sniff was not coerced.

While this case will not have the same impact as the Court’s current dog sniff cases, it does reinforce that words matter (and mom is always right).

The full opinion can be viewed here: United States v. Grant, 11-3665 (8th Cir. Oct. 18, 2012)