Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.

from the can't-give-those-hard-working-officers-enough-slack dept

If cops have the ability and opportunity to record a traffic stop, should it be held against them when they don’t? Arguments have been made to that effect for a few years now. Dashcams have been in wide use for at least a couple of decades. Law enforcement agencies all over the US are issuing body cameras to officers. But it seems whenever something questionable happens, footage is nowhere to be found, or what there is of it is almost useless.

Unfortunately, years of discussion by (mainly) defense lawyers hasn’t resulted in policy changes. Worse, it hasn’t budged the judicial needle much. In rare cases, the absence of footage is used against officers, but in those cases, it mainly seems to be because efforts were made to destroy footage already captured.

In this case [PDF] reviewed by the Sixth Circuit Appeals Court, no effort was made post facto to destroy footage. Instead, an officer proactively prevented footage from being created by disabling the dashcam recording the traffic stop. (via

The defendant made a few different arguments for suppression of evidence obtained via a search of his vehicle. Citing Rodriguez, he claimed the wait for the K9 unit unnecessarily prolonged the traffic stop. The appeals court disagreed, saying its interpretation of the Supreme Court’s decision gives officers about 20 minutes to freely violate citizens’ rights.

Defendant next argues that the search violated the Fourth Amendment because the officers extended the stop beyond the time required to investigate the traffic violation in order to conduct a canine sniff. The district court determined that the delay was not excessive, relying upon United States v. Collazo, 818 F.3d 247, 257-58 (6th Cir. 2016), in which we countenanced a traffic stop that exceeded twenty-one minutes based on the totality of the circumstances. Here, the district court observed that the canine unit appeared within ten minutes of the stop, the car’s paperwork, which was a rental, did not include any of the passengers as authorized drivers, and the GPS information indicated that defendant had been out-of-state, which was prohibited by the terms of his parole. While these factors might individually have an innocent explanation, the court found that “from a law enforcement perspective all that adds up . . . to a reasonable suspicion for an extension, which . . . wasn’t very long anyway.”

This completely ignores Supreme Court precedent, which made it clear it wasn’t the length of the rights violation, but rather the violation itself. Once the purpose of the traffic stop has been achieved, any fishing expeditions by law enforcement past that point are Constitutional violations, whether it’s five minutes, ten minutes, or a half hour. A holding like this makes it that much easier for officers to slow roll traffic stops so they can run a drug dog around a car they stopped for a lane change violation. That’s what appears to have happened here and both courts (district, appellate) said this is fine.

Trooper Boven returned to his cruiser after collecting everyone’s identification and ran the information through two law enforcement databases to check for outstanding warrants and to confirm that Mercedes Hunt was a valid driver. Defendant contends that Trooper Boven entered the information slowly in order to prolong the traffic stop until the canine unit arrived, which it did shortly after he finished processing the licenses.

In this case, there was plenty to be reasonably suspicious about, hence the call for the K9 unit. But once the K9 unit arrived something strange happened. The officer turned off his dashcam, ostensibly to “protect” the confidentiality of an informant.

Once Deputy Osbun arrived, Trooper Boven explained the situation to him to “keep him in the loop” and for officer safety. He also turned off the dashboard camera. According to his testimony, he did so to prevent information about the confidential informant from coming to light in case the stop revealed no drugs. After speaking with Deputy Osbun, however, Trooper Boven apparently forgot to restart the dashboard camera and, as a result, there is no footage of the search of the car. In total, twenty minutes elapsed before the camera was restarted.

The defendant challenged this, stating the missing footage prevented him from directly challenging the supposed probable cause generated by the dog’s nose. And there were sufficient reasons on record to warrant doing so.

Defendant contends that the lack of a visual record of the search undermines his ability to challenge the legitimacy of the canine alert to narcotics. First, there are no records maintained of the dog’s prior performance in the field. Second, Deputy Osbun recalled up to six false alerts at the suppression hearing, which defendant contends is a significant number given that dogs are deployed only when the presence of drugs is suspected. Third, the lack of dashboard camera footage makes it nearly impossible for defendant to challenge whether Deputy Osbun’s interaction with the dog may have influenced its subsequent alert. Finally, defendant characterizes the missing video footage as “spoliation” for which the government must be held responsible.

The district court, however, didn’t view this as spoliation of evidence. For the most part, the legal argument is sound. You can’t ruin evidence that doesn’t exist. The problem is that if you can prevent such evidence from ever existing, you can probably get your questionable actions excused by the courts.

The Appeals Court affirms the lower court’s decision. While the totality of the circumstances makes this a less-than-ideal test case, the fact remains too much slack is being cut by the courts. The camera could have been left on. Any concerns the trooper had about his informant’s confidentiality could have been addressed by the department. They could have been presented to the court prior to turning over the footage in case redactions were warranted. But shutting off a camera during a stop — especially a pretextual stop where an officer deliberately slowed down his ticket-writing duties to bring a drug dog to the scene — should be treated as a failure to preserve evidence by law enforcement.

In this case, the Sixth Circuit does double damage: it ignores the issues raised by cops disabling cameras during traffic stops, and gives officers in its jurisdiction 20 minutes in which to violate rights (and the Supreme Court’s Rodriguez decision) without fear of reprisal.

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Comments on “Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.”

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Paul Brinker (profile) says:

Re: Re: "Most cops are decent and wouldn't pull this."

While the courts find this is ok now, if/when the case goes to trial you can directly ask if the cop disabled a recording device before inspecting the car and other questions that cause doubt.

If later it comes out that this cop plants false evidence (as has been caught) then you have a slam dunk case for your freedom / dismissal.

Never forget the cops are not your friends.

tsunku says:

the only funny thing i noticed is, the person is on parole. when on parole you lose a lot of rights, the cops can pull you over and search you without warrant or even cause, they can enter your home and search it. there is a lot they can do to you because basically when out on parole you are still a prisoner. granted the camera being off is wrong, but it is within the cop’s ability to turn it off, there is probably no law requiring it be on during any traffic stop etc. what truly is distasteful is using a dog at all since it has been well proven that without the handler knowing where the contraband has been placed, the dog suddenly can’t find it in a very alarming number considering they have always told us the dogs are infallible yet a study found that not to be so.

Uriel-238 (profile) says:

Sounds like the court REALLY REALLY wanted to get this guy.

It seems that when the court decides a guy should be convicted no issues of human rights or matters of exonerating evidence is going to stop the court.

It’s been established at length that dog sniffs should not a means to get probable cause (they often false-positive more than they true positive). And yet they still are. So the officer turning off his cams to cover up wrongdoing is not surprisingly standard operating procedure.

But so long as the court doesn’t care, neither will the Department of Justice, including officers of law enforcement.

Paul Brinker (profile) says:

Re: Sounds like the court REALLY REALLY wanted to get this guy.

Courts get it wrong, but he has to challenge the time of the stop up the court system. This could easily go back to the Supreme court for smack down since they say the correct amount of time is how ever long it takes to write you a ticket, not sit on your ass and invent more things to look at while you wait for a dog.

MyNameHere (profile) says:

I was trying to figure out where there is the “right to force the police to video my stop” in the constitution. I don’t see any.

Stopping the camera / disabling it is a bitch move and should be handled accordingly. But having the camera turned off in and of itself isn’t a violation of rights. If that was the case, then every stop made before in car cameras were common would be a rights violation.

It’s pretty hard to take serious someone who is (a) on parole already, and (b) driving with drugs in the car, and (c) in a rental car with nobody listed as the driver.

10 minutes to run a few IDs through two databases isn’t excessively long, the officer could very well within reason tried to contact the rental agency as well to confirm that the car was not stolen (but yet unreported) and that one or more of the people in it were in fact allowed to drive. That could have taken much longer and would still have been reasonable.

The courts did say that excessive delays were a violation. In this case, at least from the descriptions given, they don’t appear to have been unreasonable. The K9 unit arrives within 10 minutes of the initial stop, that is a pretty reasonable amount of time.

Pretty much all about nothing. The police did their job and stopped a convicted felon who may have transported illegal drugs over state lines. Rather than slapping them on the head, how about a little pat on the back?

Stephen T. Stone (profile) says:

Re: Re:

having the camera turned off in and of itself isn’t a violation of rights.

It is, however, a distinct action taken to reduce the amount of evidence that documents an arrest or search. Without that evidence, the police could say Event X happened during an arrest, even if it did not, and receive a greater benefit of doubt from the courts than the defendant who claimx Event X never happened. The violation of civil rights is not the camera being turned off—it is what happens after the camera is turned off and the cops are, apparently, allowed to do whatever the hell they want.

We know the job of policing is hard. But we also deserve to know whether the people doing that job are doing it within the boundaries of the law.

MyNameHere (profile) says:

Re: Re: Re:

Think about it. Were all the arrests before cameras tainted because of a “lack of evidence”? Nope.

A camera is a nicety, but not a legal requirement. What would you say if in the same case the camera was broken or failed to record for technical reasons? Would the case be more or less tainted? What happened if the camera’s view was obstructed, or the angle to the car not correct? Do we suddenly let a guilty guy drive away?

“the cops are, apparently, allowed to do whatever the hell they want.”

They aren’t. it isn’t “turn off the camera and start beating them in the head”. They didn’t hold them at gun point and make them confess. They did what they had to do, they had probably cause and used the drug dog as an additional reason to more completely search the car.

Wanting to protect their sources isn’t a bad thing. There is no reason for the police to help the criminals.

Uriel-238 (profile) says:

Re: Re: Re: "A camera is a nicety, but not a legal requirement."

A camera is not a legal requirement, but maybe it should be.

The reason we’re seeing a movement towards officers wearing body cams is not because the officers themselves want it. To the contrary, they’d rather we go back to times before when they they had to seize everyone’s phones to assure they controlled the story.

Instead, way, way too often, the story according to official police reports is contradicted by camera footage the police failed to control. Typically the precinct would then harass whoever had this footage so that they could control the narrative. It became necessary publish such videos (say to the web) just to prevent the Department of Justice getting overly (and often violently) enthusiastic about making the footage vanish.

This is to say, incident reports typically get blue embellishments. This is regarded in our legal system as normal for police to lie to the courts, and for the courts to accept their false testimonies as true, especially if that allows them to put another person in prison. (Putting people into prison is the best thing.)

The courts already believe the police over common civilians. When a police officer chose to lie in court, the only recourse the defense would have is video footage that contradicts the police testimony. And courts will often dismiss such footage anyway, unless it is already public.

C’mon MyNameHere you were there too. You’ve watched this movie. You know the words to this song. You’ve been here all this time to watch this unfold.

District after district is mandating police body-cams for its officers, and precinct after precinct is resisting this mandate every step of the way. It’s funny, the childish way officers point their cameras in the wrong direction or turn them off so consistently right before crazy incidents occur. Rather, it would be funny if someone wasn’t get their face beaten in by thugs in blue while the cameras are off or misdirected.

Districts now have to mandate when what it means when cameras happen to not be on during an incident. Or what it means if the footage is edited post hoc. Or what it means when the footage from several police bodycams are pointed away from the incident at the time.

So, no. Cameras aren’t a nicety, they’re a small step towards a system of oversight that is necessary to have our police do their jobs.

Without visual confirmation of testimony, police reports are too often inconsistent with what actually happened, at least in those cases where there is another narrative.

Without continuous monitoring, police are too easily tempted to commit violence or malfeasance or perjury. Even then, the cameras they have are not enough.

So yeah, when an officer turns off a camera, it’s valid to assume the police are about to commit wrongdoing, because we’ve already established countless times that is what it means.

MyNameHere (profile) says:

Re: Re: Re:2 "A camera is a nicety, but not a legal requirement."

Body cameras and in car cameras have good points – and they have bad points. Officers are only too aware of what those bad points are.

Video creates a situation where back seat drivers and Monday morning quarterbacks can bitch and complain about anything and everything that happens during a stop, and arrest, or a significant event. Very few people would be comfortable to have not only their own boss but the entire public watching over their shoulder and second guessing everything they did, and cops really are caught in a bad situation.

Literally, they cannot win.

The legal system is (some would say rightly) heavily tilted towards the defendant. If the police, officers, lawyer, court official, clerk, or any of the other people and agencies between arrest and conviction at any time fail to cross a t, dot an I, or do not say and do the exact perfect words, the defendant walks. The pressure put on officers not to make even the tiniest mistake while they are dealing with someone is so high, that in many cases it appears to be leading to them doing nothing.

“Without continuous monitoring, police are too easily tempted to commit violence or malfeasance or perjury. Even then, the cameras they have are not enough.”

We are reaching the point where fewer and fewer people want to be police officers. They risk their lives, they risk their families, and they risk having to deal with endless video reviews. They deal with hardened criminals who get to walk if the officer so much as stubs their toes.

At some point, something will have to give. My guess is that within a very short time, police officers will no longer actually do anything at a crime scene, they will make a video, file a report that says “see video” and they will stop there. They won’t want to deal with criminals, they won’t want to try to prevent crime, and they won’t want to deal with the problems of society, because they will get dragged up on the carpet for everything they do.

Can you imagine having a camera on every second of your life? Take the last of the coffee at work and don’t refill it? You get dragged in front of all of your coworkers and disciplined, 1 week without pay.

Cross the street on a red light? Ticket in the mail.

Tell a little white lie to get out of a date or dinner with friends? We’ll send it to them and they can hate you for the rest of your life.

I can’t imagine anyone here having the attachments to be a police officer or face what they have to face.

Uriel-238 (profile) says:

Re: Re: Re:3 "back seat drivers and Monday morning quarterbacks"

That’s the moment you lost me.

The police have demonstrated time and again that they cannot be trusted to testify accurately or even honestly. The police are back-seat driving and monday-morning quarterbacking to the cameras, not the other way around.

All witness testimonies should be given equal value regardless of who they came from. And it should be verified by video or some other reliable neutral measure.

Our current legal system is not interested in justice, which includes exonerating the innocent, it seeks only to fill our prisons with warm bodies.

And given that police officers are perversely incentivized to engage in corruption and wrongdoing, yes, it’s a good time to quit the force.

MyNameHere says:

Re: Re: Re:4 "back seat drivers and Monday morning quarterbacks"

You don’t think the defendants don’t do the same? The old “Dindu Nuffin” meme comes from the basic concept of someone caught red handed, and having the balls to suggest that they haven’t done anything, and that the police did them wrong.

So many of the cases you see aren’t about a truly innocent person caught up in the system, rather someone trying hard with a determined defense lawyer to try to find something, anything, to suggest the police failed to cross all the Ts and dot the Is.

Do you honestly think that defendants testify honestly and accurately, or do they only say exactly what their lawyer coached them to say?

The justice system is interested in justice. The participants however have their own agenda.

Anonymous Coward says:

Re: Re: Re:3 "A camera is a nicety, but not a legal requirement."

police officers will no longer actually do anything at a crime scene

We’re already there, because knuckle-draggers like you justify each and every mistake. Even the fatal ones. Especially the fatal ones.

Of course cops aren’t going to do anything because you keep rewarding the wrong behavior.

MyNameHere (profile) says:

Re: Re: Re:4 "A camera is a nicety, but not a legal requirement."

I don’t justify their mistakes. I accept that they are human and mistakes happen. When you consider all of the hoops (flaming and otherwise) that they must jump through, and how a simple thing like forgetting to seal one evidence bag or making a mistake on a case number of a form can set someone free, it’s an incredibly frustrating situation.

Police deal every day with people the rest of us would rather never see. Like a fireman who runs into a burning building, cops often have to go into a situation where people are dead, dying, trying to kill each other, and angry / confused /drugged / armed to do the same to anyone else including the police. They have to deal with liars, crooks, criminals, drug addicts, wife beaters, child abusers, and a whole long cast of people who would try the patience of the most relaxed person on the planet. Most poeple here wouldn’t last a single shift dealing with the stuff they have to deal with.

So yes, they make mistakes.

So yes, they lose their cool.

So yes, sometimes they use excessive force, and yes, sometimes people die as a result.

It sucks.

The cops aren’t going to do anything because you aren’t rewarding any behavior except standing back and letting the criminals run free. it’s much easier for them not to make the traffic stop, it’s easier not to stop the drugs that might kill a friend or a family member. It’s tons easier not to rush into a situation with an armed suspect and deal with it. It would be way easier just not to show up.

When they do their jobs, people cuss them out. When they don’t do their jobs, people cuss them out. When they make a minor mistake, people cuss them out and perps walk. When they make a major mistake and someone dies, every back seat driver is there to review the video 100 times over saying “I would never have done that!”, without understanding the context that it happens in, what all the cop had to deal with right before, or what happened to them last time in a similar situation.

I don’t excuse them – I accept them as human. I wouldn’t want their job, it sucks, there is little upside and plenty of people chewing the out and calling them knuckle draggers.

Anonymous Coward says:

Re: Re: Re:5 "A camera is a nicety, but not a legal requirement."

Nah, the knuckle dragger is you for thinking that just because someone has it bad, he can pull off a fuck-up that causes someone else to lose their life despite all the tech, funding and leeway at their disposal. Video game controller? Must be a gun! Running away naked? That crotch looked dangerous!

If criticism of scenarios where a little restraint would have worked much better offends your sensibilities this much, maybe think for a little yourself. Under what situation is a cop in where a naked, unarmed, fleeing citizen poses such a fucking threat with his spinal cord that the cop had to shoot it? In this case, perhaps the “knuckle dragger” slur is deserved.

Anonymous Coward says:

Re: Re: Re:7 "A camera is a nicety, but not a legal requirement."

“Google must know beforehand that a website, hyperlink or country is pirating. Citizens must know in advance what law they are breaking. But if a cop fudges a warrant or shoots an unarmed citizen there must be a solid reason for which he cannot be blamed for.”

Seems legit.

Anonymous Coward says:

Re: Re: Re:7 "A camera is a nicety, but not a legal requirement."

So I asked you for context. Instead you decided to give a non-answer that amounted to little more than “I demand the benefit of the doubt”.

That’s a victory to you? “Heads I win, tails you lose”? Sure, because the people toting live ammunition and tasers need the moral support against the nude…

Anonymous Coward says:

Re: Re:

I would submit here that the something like 50% of the entire purpose for the existence of standard cops is the collection of evidence. They aren’t there for prosecuting criminals, that’s what district attorney’s are for. They aren’t there for determining guilt, that’s what courts are for. They are there for collecting evidence (and then carrying out warrants based on that evidence), and acting as first responders in issues of public safety.

So when a cop deliberately fails to collect evidence, then what exactly is he doing? There was no public safety issue here, meaning the only thing he should have been doing was collecting evidence of criminal activity. Except he deliberately avoided doing that.

The police did not do their job here. In fact, they specifically avoided doing their job. They stood up and said "Right now, we are attempting to gather evidence that can be presented to the courts/prosecutors. So we are going to go around and turn off all of our evidence gathering devices. Because the best way to collect evidence for the court is to deliberately not collect any evidence at all."

Uriel-238 (profile) says:

Re: Re: Fixed it for you.

I would submit here that the something like 50% of the entire purpose for the existence of standard cops is the collection of evidence that serves to secure a conviction.

The police are not interested in ruling out suspects. The Department of Justice gets no benefit from exonerating innocent civilians.

Look at the FBI’s attitude towards persecuting retards and wackos to build their record of terrorist collars. It’s evident our law enforcement doesn’t care whether a suspect is motivated to commit a crime or is even mentally capable of committing a crime, so long as he can be successfully convicted of committing a crime.

stderric (profile) says:

Re: Re: Re:

Stuff they need 24/7: speed- & stoplight-cams, public surveillance cams, fixed ALPRs, mobile LPRs on squad cars, Dirt Boxes, Stingrays, surveillance blimps & drones, facial recognition, thermal cameras that can search a house warrant-free, gunshot-sensing microphone coverage of entire neighborhoods, etc., etc…

Stuff they always seem to need shut off: dash cams, body cams, bystanders’ smartphones.

Anonymous Coward says:

WHy is there an OFF switch on a Dash CAM? I get, personal Camera’s, so they can turn it off when going to the bathroom, or a few other exceptions, but that’s not the case with a DashCam which should always be recording. I have one in my truck and it’s always recording!!!!

The second thing is, why the F are they getting the ID of everyone in the car? If I was a passenger, I’d told the PIG to F off. I’m not driving, I don’t have to show an ID to even tell that person my name. Not unless I’m expected of committing a crime and are under arrest. Collecting ID from everyone in a car is such B.S. and so many people just go along with it. It’s Unconstitutional!!! They can ask, but YOU can refuse, and should refuse.

Davey (profile) says:

No duty to generate evidence

Police have a duty to collect evidence of a crime. I’m not sure that they are required to generate evidence. Charging a drunk driver without making them blow into a tube is a cop’s choice. Prosecuting a drug crime without dashcam footage weakens the prosecution case, but they’re allowed to take that gamble.

Further, they are certainly not required to generate evidence of a non-crime – i.e., exculpatory evidence. IANAL, but I don’t expect police to be extremely busy affirming a suspect’s innocence. Police would say that’s what juries are for.

Uriel-238 (profile) says:

Re: affirming a suspect's innocence

That is, we are discovering, something that should be included in the job of the police. Juries don’t give suspects in court the benefit of doubt. In fact, quite the opposite, tough on crime stances are popular even when that means erring on the side of false convictions.

Given the US has a high conviction rate…

Given US and state legal departments underpay and understaff public defense…

Given judges and prosecutors commonly withholds evidence from the defense…

Given courts allows law enforcement to lie in court (in fact, commonly pressures them to do so) not once enforcing perjury charges…

Given federal and state penal systems actively obstruct convicts from pursuing process to establish their own vindication or innocence…

…It is very possible that we have more than a 50% false conviction rate, that more than half of our inmates in the US are innocent. Of course, we can’t prove such a claim because we only have a single unilateral system of courts of law, and while there are many grounds on which to deny it confidence, it has, and enforces law by, an overwhelming amount of applicable force.

(IANAL but I believe that’s the whole point of Habeus Corpus, although I don’t understand how it’s possible to prove or disprove the legitimacy of a court within its own purview. It’s like asking a king to establish his own authority. Historically it’s always come down to my army is bigger than yours.)

Ultimately, it should be the responsibility of a department of justice to rule out innocence of each suspect. Any less is just culling warm bodies to fill prison cells.

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