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Court says search legal, drug conviction stands Thursday, Jun 5, 2008 By John Lyon Arkansas News Bureau LITTLE ROCK - A dog's sniff is different from a police officer's search and does not require probable cause, the state Court of Appeals said Wednesday in affirming the drug conviction of a Virginia woman caught with 400 pounds of marijuana during a traffic stop in Crawford County. The court rejected Patricia Avery's argument that police searched her vehicle illegally and affirmed her 30-year prison sentence and $15,000 in fines for possession of marijuana with intent deliver and possession of drug paraphernalia. State Trooper Olen Craig pulled over Avery for speeding on Jan. 30, 2005. After Avery gave verbal consent to a search of her vehicle, Craig asked Van Buren police Cpl. Mike Bowman to come to the scene with his canine partner, Nero. Just before Nero sniffed the vehicle, Avery said she wanted to withdraw her consent for a search. Bowman proceeded to walk Nero around the vehicle, leading to discovery of the marijuana. "While Trooper Craig fiddled, Nero roamed and ultimately burned Avery," Judge Josephine Linker Hart wrote in the appeals court opinion Wednesday. Avery argued on appeal that Craig did not have reasonable cause to detain her longer than was necessary for the traffic stop. She was detained about 17 1/2 minutes before Nero sniffed her vehicle. The appeals court noted that a canine sniff is not the same as a police search and does not require reasonable suspicion of criminal activity. Because just 90 seconds passed between Avery's withdrawal of her consent for a search and the canine sniff, "we cannot say that the delay was unreasonable," Hart wrote. In a concurring opinion, Judge Robert Gladwin wrote the fact that Avery's driver's license had expired was cause enough for the trooper to detain her. |
