Subject: Executive Summary

Re: Various Supreme Court Cases Relevant to Police Officer Policies and Procedures

From: Richard McQueary, President
__________________________________________________________________

Georgia v. Randolph 126S.Ct.1515 (2006)

This case involves two parties each having authority to grant consent to search the premises they share; the officers must adhere to the non-consenting party.

The U.S. Supreme Court agreed with the Georgia Supreme Court in that they reasoned it (Fourth Amendment) should not be interpreted in a manner that ignores the privacy expectation of the individual asserting his or her rights while the police attempts to obtain consent to search from another.

This principal applies to evidentiary searches based on consent as opposed to situations where exigent circumstances exist that may justify a warrant-less entry or when evidence may be at risk for destruction.

                                                                                                    * * *

Brigham City v. Stuart, 126 S.Ct. 1943 (2006)

The case involves law enforcement’s authority to make warrant-less entry into a residence to assist individuals seriously injured or under threat of such harm.
In this case a defendant’s motion to suppress evidence (obtained while responding to a violent domestic) where police entered the residence to help the injured party. Officers found evidence to make an arrest while inside the residence and the defendant argued that entry made by the police violated their Fourth Amendment rights. Therefore, without a search warrant anything the police obtained should be suppressed.

The U.S.Supreme Court stated that nothing in the Fourth Amendment requires police to wait until another “blow or punch” renders someone unconscious or semi conscious or worse, before entering the premise. The role of a peace officer(s) includes preventing violence and restoring order, and not simply rendering first aid to casualties.

                                                                                                      * * *

Sanchez-Llamas v. Oregon 126 S. Ct. 2669 (2006)

In this case, the Supreme Court considered whether a suppression of a confession is appropriate remedy for a violation of Article 36 of the (VCCR) Vienna Convention on Consular Relations. This article (36-VCCR), affords a foreign national, protection from authorities when arrested or detained in a foreign country and requiring the country of detainment to notify the Consular’s Office of the defendant being detained, and to inform the foreign detainee the right to speak immediately without delay with his/hers consular office.

The detainee was involved in a shooting injuring a police officer. Detainee was advised, and subsequently waived, his Miranda rights in (English/Spanish). Police conducted an interview with the individual aided by an interpreter. The detainee made numerous incriminating statements during interview. Later the defendant moved to suppress statements on the grounds that law enforcement failed to advise him of Article 36- (VCCR).

Chief Justice Robert’s writing for the majority rejected the defendant’s claim.
The court noted violations of Article 36 are not likely to provide the government with a practical advantage when interviewing an individual.
Futhermore, the court stressed that diplomatic channels should be the primary means by which protections afforded by Article 36, is secured.

                                                                                                * * *

Samson v. California 126 S.Ct. 2193 (2006)

This case has to do with suspicious less search of parolees by law enforcement officers and if they are reasonable under the Fourth Amendment.

In this case, according to California law, every parolee agrees in writing to be subjected to search and seizure by a parole officer or other peace officers at any time day or night, with or without a search warrant, and with or without just cause.
An officer detained a parolee and conducted a “Pat down search” and found a container on defendant and in the container was suspected methamphetamine. The officer arrested the parolee.
Defendant filed motion to suppress evidence found by police, by asserting the search violated his Fourth Amendment right.

The Supreme Court upheld the search and concluded that the governmental interest at stake in monitoring individuals released on parole, outweigh the already reduced privacy interest of the parolee. Thus, the suspicion less search in the case of a parolee was determined to be consistent with the Fourth Amendment.

                                                                                                  * * *

Hudson v. Michigan 126 S.Ct. 2159 (2006)

This case involves the application of the exclusionary rule and appropriate remedy being applied when law enforcement fails to comply with the “knock and announce” requirements of a forcible entry.
The court emphasized that the “knock and announce” requirement is not directly related to the search and seizure that occurs once officers make entry into a residence.
An officer’s safety may be compromised prior to making entry by waiting an unnecessarily extended period of time. In addition, evidence may be lost or actually destroyed by the criminal(s) prior to law enforcement’s entry and the court’s decision to exclude it from trial.
 
                                                                                                   * * *

Garcetti v. Ceballos 126 S.Ct.1951 (2006)

This case has to do with First Amendment rights of employee speech.

The Supreme Court held that for public employee speech to amount to a matter of public concern, courts should examine whether the speech was a subject of legitimate news interest or value to society. If the speech or expressive conduct does not meet this threshold, no further scrutiny is necessary as there is no Forth Amendment protection afforded the employees.
The Supreme Court stated that the First Amendment does not protect a public employee from adverse employment actions when statements made are consistent with the employee’s duties.
The court also pointed out that persons who seek to expose wrongdoing may utilize the powerful network of legislative enactments- i.e. whistle-blower protection laws and labor codes.

                                                                                                      * * *

Burlington Northern v. White 126 S.Ct.2669 (2006)

This case has to do with the anti-retaliation provision within Title VII of the Civil Rights Act of 1964 (which is not limited to actions only related to employment or that occur at the workplace).
The court stated the scope of this provision did not extend to all forms of retaliation but, to those that are materially adverse, meaning it might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The key factor according to the Court is whether the retaliatory conduct would deter a reasonable worker from pursuing a claim of discrimination.

                                                                                                        * * *

The Supreme Court cases anticipated for the current term do not appear to have many relevant rulings significant to law enforcement. However, at the end of the term (June 2007), I will research and pass on any case decisions involving police related ruling or interest.

The article above incorporates summaries of Supreme Court cases including editorial comments that reflect the author’s opinion and should not be considered legal guidance. For a complete understanding of the case(s) referenced, readers should review the individual cases in their entirety.
 

Police Prosecutor Update

The Indiana Supreme Court recently decided a trash search case which limited (at least theoretically) the circumstances in which a warrantless trash search would be permissible. Based on information the Indiana State Police received from federal DEA officials, ISP believed the defendants (husband and wife) might be growing marijuana. On two occasions, two troopers went to the address where they found trash barrels in the same general area where the collection service normally picked up the trash and where the barrels were routinely kept. The barrels were located on the defendants' property about 15-25 feet from the edge of the county road and about 175 feet from the nearest corner of the defendants' house. On both occasions, the troopers entered onto the property and removed several garbage bags. The bags contained marijuana stems, seeds, and leaves, and burnt rolling papers and hemp rolling paper packaging. Based on this evidence, they obtained a warrant to search the residence. The defendants contended the search of both the trash and the house were illegal.

Under the Indiana Constitution, a search, to be legal, must be "reasonable" under the "totality of the circumstances." Reasonableness must be evaluated from the perspective of both the investigating officer and the subject of the search. Courts are to consider both the degree of intrusion into the subject's ordinary activities and the basis on which the officer selected the subject of the search. There have been several trash search cases decided by the Court of Appeals. Some of these cases have held that a trespass by the police onto private property to retrieve the trash automatically makes the seizure and search of the trash illegal. However, the Supreme Court decided that the reasonableness of an officer's conduct in searching a person's trash does not turn on whether the police entered onto the person's property. If the trash is located in the place where it is normally picked up, the trash collection service, whether public or private, is invited onto the property to the extent necessary to pick up the trash. Police officers can perform the same acts with no greater intrusion. Prohibiting officers from examining trash before it is collected imposes burdens on law enforcement by forcing officers to accompany or follow trash collectors or work at the dump to do what could be accomplished much easier and provides no real protection to the citizen. Therefore, because there is no intrusion, trash searches are generally reasonable.

However, a factor that may make a search unreasonable is an arbitrary selection of the subject. Therefore, the Supreme Court stated that is is not reasonable for law enforcement officers to search indiscriminately through people's trash. To protect against this, the Court held that the police must have an articulable basis justifying reasonable suspicion that the subject of the search has engaged in violations of the law that might reasonably lead to evidence in the trash. This articulable individualized suspicion is basically the same as is required for a "Terry stop."

Finally, the Court cautioned that police do need to ensure that they do not cause a disturbance or create the appearance of a police raid of the residence.

To summarize, a search of trash is reasonable if: (1) it is recovered from the place where it is left for collection; and (2) the investigating officials have an articulable basis justifying reasonable suspicion that the subject of the search has engaged in violations of law that might reasonably lead to evidence in the trash.

Illinois v. Caballes
U.S. Supreme Court Upholds Dog Sniffs
543 U.S. Supreme Court (2005)

Introduction

The U.S. Supreme Court overturned an Illinois ruling that held that specific and articulable facts suggesting drug activity were needed before a dog could be walked around a car at a traffic stop. The U.S. Supreme Court asserted that a canine sniff that only reveals what a person has no right to possess does not violate the Fourth Amendment.

Case Facts

The facts of the Cabelles case are discussed at length in the Summer 2004 IPWDA Journal (Volume 1; issue 2). Caballes was stopped for going 62 mph in a 55-mph zone. While a trooper was writing a warning ticket a Canine Team showed up. The Canine Team walked around the exterior of the car. After an alert from the dog the trunk was searched and nearly $250,000 in marijuana was located. The entire incident lasted less than ten minutes.

Question decided by the Supreme Court

The main question decided was fairly narrow:

"Whether the Fourth Amendment requires reasonable, articulable suspicion to justify
using a drug-detection dog to sniff a vehicle during a legitimate traffic stop".

Ruling of the Court

The Court held that reasonable suspicion was not required before a dog could be used for a sniff. They were careful to note that if the detention was not unlawful (such as holding someone longer than the time needed to complete a traffic ticket) that the court's conclusion would probably be different.

"In our view, conducting a dog sniff would not change the character of a traffic stop
that is lawful at its inception and otherwise executed in a reasonable manner,
unless the dog sniff itself infringed respondent's constitutionally protected interest
in privacy. Our cases hold that it did not. Official conduct that does not 'comprise
any legitimate interest in privacy' is not a search subject to the Fourth
Amendment."

Since the suspect was being lawfully held for a traffic violation and the canine use does not expose non-contraband items, the canine use did not rise to the level of an infringement on a constitutional right. The ruling of the Illinois Supreme Court was vacated. The case has been sent back to that court for further proceedings consistent with the ruling of the U.S. Supreme Court.

Discussion

The issue decided by the court was narrow, but needed. Most lower courts had been adhering to the doctrine that the Supreme Court had outlined in earlier cases United States v. Place, 462 U.S. 696 (1983) and Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). However, some lower courts were dismissing similar cases to Caballes. The Supreme Court has stepped in and provided clear direction for lower courts.

The Supreme Court decided the case with a 6-2 majority, with Judge Rehnquist not participating in the ruling. (Judge Rehnquist is only participating in cases where there is a 4-4 tie while he recovers from illness). A 6-2 majority signals a consensus on the issue. The temptation will be to assume that this case provides broader powers than the ruling outlines. You must recognize that this case only applies when:

1. The suspect is being lawfully detained.

and

2. The dog indicates on contraband items only.

Understanding the above two points will help a handler understand:

- In this case, another trooper made the stop and the handler slid by on his
own. If the motorist had been detained longer than the normal time so the
dog could arrive the ruling would have been different.

- If the handler had made the stop, and then searched with his dog instead of
writing the ticket, the ruling would have been different.

- If the dog was trained to detect non-contraband items (alcohol, tobacco,
gun oil, etc.) the ruling may have been different.

- In this case the Officers had no articulable reason to believe that a drug offense
was occurring. If they had reasonable suspicion that an offense was occurring
they may have been allowed a reasonable time to have a dog respond. The court
provided no direction on this issue.

Two justices wrote dissenting opinions. The opinions are not binding, but they do signal some concern from at least some of the court. The dissenting opinion wondered about the slippery slope that the ruling would provide - worried about random searches of parked cars and pedestrians. The dissenters also wondered about failure rates and false positives of Canine Teams.

Those dissenting clearly signaled that explosive searches that were done with the interests of communtiy safety should have much greater leeway. When demonstrated risk is higher (searching for bombs or chemical weapons) searches are much more likely to be held as reasonable.

What the ruling means to you:

The court once again ruled that Canine sniffs for contraband items do not rise to the level of a Fourth Amendment search. The ruling has some finer points that need to be understood. Do not use the ruling to attempt to greatly expand the use of your canine into gray areas of the law. Do not forget to articulate other search reasons such as search incident to arrest and consent searches.

There is significant concern in the courts about failure rates. Maintain certifications, good training records, and investigate possible reasons for unknown hits on the street. Do not label hits on the street that were due to an unknown source as "false hits".


Sgt. Mark Mathis
I.P.W.D.A. News editor

(Article also published in the IPWDA Journal; Spring 2005 - Volume 2, issue 1)

 

[ top ]

Interesting Court Decision

This was forwarded by Deputy Bryan Wolfe of the Johnson County Sheriff's department. Here is an interesting case that was decided in the Indiana Supreme Court that involved the Indianapolis Police Department and a Greenwood Police Canine Unit. The two areas of interest involving us are as follows: Does the smell of marijuana satisfy the reasonable suspicion requirement justifying an investigatory stop; At what point does an Investigatory stop actually begin during a standard traffic stop; and finally how long can an officer detain a person/vehicle while waiting for a canine to arrive? Bryan

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN (JACK) F. CRAWFORD JEFFREY A. MODISETT
Crawford & Rader Attorney General of Indiana
Indianapolis, Indiana

KIMBERLY MACDONALD
Deputy Attorney General
Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
PAUL KENNER, )
Appellant-Defendant, )
vs. ) No. 49A04-9802-CR-89
STATE OF INDIANA, )
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION NO. 20
The Honorable Michael S. Jensen, Judge
Cause No. 49G20-9609-CF-140818

January 6, 1999
OPINION - FOR PUBLICATION
RUCKER, Judge

In this interlocutory appeal Paul Kenner challenges the trial court's denial of his motion to suppress evidence. Kenner phrases the issues as follows: (1) is the "plain smell" test valid under Article One, Section Eleven of the Constitution of Indiana, and (2) did the trial court err in finding that under the totality of the circumstances the detention of Kenner for one hour was reasonable. We affirm.

At approximately 7:50 p.m. on September 16, 1996, Officer Paul McDonald of the Indianapolis Police Department stopped a red Camaro on Interstate 70 in the city of Indianapolis. The car was traveling sixty miles per hour in a fifty mile per hour speed zone. Officer McDonald had just been informed by another officer that a red Camaro and a tan Chevrolet Celebrity appeared to have been traveling together and passing each other at excessive rates of speed. The driver of the Celebrity was ultimately stopped by another officer and identified as Piere Riley.

In the meantime Officer McDonald approached the driver of the Camaro and requested identification and registration. The driver complied and produced a driver's license in the name of Paul Kenner. The car was registered in the name of Piere Riley. At the officer's request Kenner exited his car. When he did so Officer McDonald smelled what he believed to be raw marijuana. The parties proceeded to the patrol car and once inside Officer McDonald informed Kenner that he was going to give Kenner a break.

The officer wrote Kenner a warning ticket, returned Kenner's driver's license and registration, and then told Kenner the traffic stop was over. The time was 8:01 p.m.

Officer McDonald then asked Kenner if he would mind answering a few questions. Kenner agreed and McDonald proceeded to ask Kenner a number of questions including where he was going, with whom was he traveling, and where he had been. He also asked Kenner if there were any illegal drugs in the car and Kenner answered not to his knowledge. His suspicions aroused, Officer McDonald then requested permission to search the car. Kenner responded that because the car did not belong to him, he did not want to give his consent to search. Officer McDonald then radioed for a canine unit. It was now 8:16 p.m. The officer informed Kenner that he was free to leave however the car had to remain. Kenner stayed. Approximately half an hour later the canine unit arrived.

Walking the perimeter of the Camaro a drug sniffing dog alerted to the presence of illegal drugs. Officer McDonald searched the Camaro and discovered a white trash bag containing twelve pounds of a substance later identified as marijuana.

Kenner was arrested and subsequently charged with possession of marijuana as a Class D felony and dealing in marijuana as a Class C felony. He thereafter filed a motion to suppress evidence which was denied after a hearing. This interlocutory appeal followed.

I.

Referring to Officer McDonald's testimony that while Kenner was exiting the Camaro the officer smelled raw marijuana, Kenner contends that Article one, Section Eleven of the Indiana Constitution prohibits the adoption of what he characterizes as the "plain smell" test. Kenner argues that odor alone cannot provide the basis for probable cause to search a vehicle. Continuing the argument, Kenner maintains that the test for determining whether a police search violates Article One, Section Eleven of the Indiana Constitution is different from that applied in federal jurisprudence.

We have no quarrel with Kenner's argument on this latter point. See Brown v. State, 653 N.E.2d 77 (Ind. 1995) (distinguishing between Article One, Section Eleven and the Fourth Amendment on question of warrantless search of automobile). However, Kenner appears to misconstrue the distinction between probable cause justifying a search on the one hand and reasonable suspicion justifying an investigatory stop on the other. Facts necessary to demonstrate the existence of probable cause for a warrantless search are not materially different from those which would authorize the issuance of a warrant if presented to a magistrate. Young v. State, 564 N.E.2d 968, 970 (Ind. Ct. App. 1991), trans. denied.

"Probable cause" to issue a search warrant exists where the facts and circumstances would lead a reasonably prudent person to conclude that a search of those premises will uncover evidence of a crime.

Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994). As we discuss more fully below, Officer McDonald's search of Kenner's automobile occurred after a drug sniffing dog alerted to the presence of illegal drugs. The alert of the dog provided the probable cause necessary to obtain a search warrant. See U.S. v. Brown, 24 F.3d 1223, 1226 (10th Cir. 1994) ("[W]hen the canine alerted to Brown's Lincoln, the authorities had 'probable cause' to impound the vehicle, . . . and thereafter obtain a search warrant.").

That the officer here did not attempt to obtain a warrant has not been raised as an issue on appeal. We note, however, that where there is probable cause to believe an automobile contains the fruit or instrumentality of a crime, the inherent mobility of the automobile justifies a warrantless search. Green v. State, 647 N.E.2d 694, 696 (Ind. Ct. App. 1995). We also note that smell testing by a trained dog is not a search within the meaning of the Fourth Amendment. State v. Watkins, 515 N.E.2d 1152, 1154-55 (Ind. Ct. App. 1987) (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Also, the Fourth Amendment does not prohibit law enforcement authorities from detaining personal property for a sniff test by a trained narcotics detection dog if there is reasonable suspicion to believe the property contains narcotics. Watkins, 515 N.E.2d at 1155.

In any event the proper focus of Kenner's "plain smell" argument is not upon the search of Kenner's automobile for which the officer had probable cause after the alert of the dog. Rather the proper focus is upon the investigatory stop that ultimately culminated into a search. This jurisdiction has adopted the Terry rationale in determining the legality of investigatory stops under Indiana's constitution. Taylor v. State, 639 N.E.2d 1052, 1054 (Ind. Ct. App. 1994). In Terry v Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court established the rule that a police officer can briefly detain a person for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion of criminal activity.

This is so even if the officer lacks probable cause under the Fourth Amendment. Terry, 392 U.S. at 27. The requirement of reasonable suspicion is satisfied when the facts known to the officer, together with the reasonable inferences arising therefrom, would permit an ordinary prudent person to believe that criminal activity has or was about to occur. Taylor, 639 N.E.2d at 1054.

Here Officer McDonald stopped Kenner because he was speeding. Kenner does not contend the stop was pretextual.See footnote 1 Once stopped, Kenner was given a warning ticket and questioned about his activities.See footnote 2 Thereafter Kenner was detained for further investigation in part because Officer McDonald detected the smell of marijuana coming from Kenner's automobile.See footnote 3 Although there are no Indiana cases on point,See footnote 4 we note that in a number of jurisdictions the odor of marijuana alone can provide the basis for probable cause to search a vehicle.

See, e.g., State v. Harrison, 533 P.2d 1143 (Ariz. 1975) (odor of marijuana emanating from vehicle stopped for traffic or equipment violations alone provided probable cause for search); State v. Sandoval, 590 P.2d 175 (N.M. Ct. App. 1979); People v. Gremp, 312 N.E.2d 716 (Ill. App. Ct. 1974) (probable cause to conduct warrantless search existed where officer detected the odor of marijuana after opening door of stopped car in attempt to view vehicle identification number); State v. Cross, 543 P.2d. 48 (Or. Ct. App. 1975) (where trained police officer, during investigation of accident at which defendant was present but not involved, smelled odor of marijuana emanating from clothing and person of defendant, officer had probable cause to conduct warrantless search of jacket that he observed defendant take off); U.S. v. Gorthy, 550 F.2d 1051 (5th Cir. 1977), cert. denied (probable cause found where border patrol agent who detected strong smell of marijuana when opening the side door of motor home stopped at border checkpoint).

In affirming convictions involving marijuana this court has taken into consideration testimony concerning the drug's smell. In Carrao v. State, 154 Ind. App. 525, 290 N.E.2d 484 (1972) we held that the defendant's knowledge of the presence of marijuana could be inferred by its smell. In Bay v. State, 489 N.E.2d 1220, 1224 (Ind. Ct. App. 1986) we observed that a police officer's testimony that the house "reeked of marijuana" supported the defendant's conviction. Implicit in the foregoing cases is the conclusion that the odor of marijuana is distinctive and capable of being detected by trained or experienced law enforcement personnel. See, e.g., U.S. v. Dallas, 672 F. Supp. 362, 365 (S.D. Ind. 1987) (observing that raw marijuana has a distinctive odor that can be readily detected with experience and training).

Here, Officer McDonald testified that he had been a police officer for fifteen years, had made hundreds of arrests involving marijuana and other drugs, received specific training through drug interdiction schools, including a 40 hour course with a drug enforcement agency and drug identification and detection, and had received formal training in college and through the police academy. We reserve for another day the resolution of whether in Indiana the odor of marijuana standing alone constitutes probable cause justifying a search. However, we are persuaded that an officer's detection of the smell of marijuana, together with the reasonable inferences arising therefrom, would permit an ordinary prudent person to believe that criminal activity has or was about to occur. In essence the smell of marijuana can satisfy the reasonable suspicion requirement justifying an investigatory stop. Because of Officer McDonald's experience and training he was qualified to detect the distinct odor of raw marijuana.

Having smelled marijuana coming from Kenner's car, the officer had the reasonable suspicion necessary to justify detaining the car for further investigation - namely: a sniff test by a trained dog. The dog's alert to the presence of marijuana provided Officer McDonald with probable cause to search Kenner's car.

II.

Kenner next contends that his one hour detention awaiting the arrival of a canine unit violated his Fourth Amendment right against unreasonable searches and seizures. We first observe the record does not support Kenner's claim that he was detained for an hour. For purposes of the Fourth Amendment an investigatory stop begins when the person being questioned no longer remains free to leave. Luster v. State, 578 N.E.2d 740, 744 (Ind. Ct. App. 1991); United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1871, 64 L.Ed.2d 497 (1980). The same rule applies where the person being questioned is free to leave but his property is detained. See United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.ED.2d 110 (1983) (holding "when police seize luggage from the suspect's custody . . . the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause.").

In the case before us Kenner was initially stopped at 7:49 p.m. at which time the officer detected the smell of marijuana. It was 8:16 p.m. when Officer McDonald requested a canine unit and advised Kenner that he was free to go but the car had to stay. However, we believe the investigatory stop actually began at 8:01 p.m. after the officer had written Kenner a warning ticket and told him "the traffic stop was over. . . ." R. at 156. It was at this point that Officer McDonald proceeded to question Kenner following up on his suspicion of illegal activity which had already been aroused by the earlier detection of the odor of marijuana.

It is reasonable to presume that shortly after the traffic stop was over Officer McDonald decided that the car would be detained. The record shows the canine unit arrived approximately one half hour after the request had been issued - sometime around 8:46 p.m. Thus, for purposes of the Fourth Amendment Kenner was detained for approximately forty- five minutes.

Because an investigatory stop is permitted on less than probable cause, its scope also must be limited. U.S. v. Teslim, 869 F.2d 316, 322 (7th Cir. 1989). Reasonable suspicion justifying a limited investigative stop does not give law enforcement officers all the rights attendant to arrest, but only the right to "temporarily freeze the situation in order to make investigative inquiry." Platt v. State, 589 N.E.2d 222, 227 (Ind. 1992). "[T]here is [no] litmus paper test for . . . determining when a seizure exceeds the bounds of an investigative stop." Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983). The United States Supreme Court has refused to adopt a "hard-and-fast time limit for a permissible Terry stop." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.ED.2D 605 (1985); Place, 462 U.S. at 709 n.10, 103 S.Ct. at 2646 n. 10, 77 L.Ed.2d 110. "Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575 .

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

Id. at 686, 105 S.Ct. at 1575. Using the foregoing test, courts have upheld detentions of forty-five minutes, United States v. Davies, 768 F.2d 893 (7th Cir,), cert. denied, 474 U.S. 1008, 106 S.Ct. 533, 88 L.ED.2D 463 (1985); fifty minutes, United States v. Alpert, 816 F.2d 958 (4th Cir. 1987); sixty minutes, United States v. Large, 729 F.2d 636 (8th Cir. 1984); United States v. Campbell, 627 F. Supp. 320 (D. Alaska 1985), aff'd 810 F.2d 206 (9th Cir. 1987); and seventy-five minutes, United States v. Borys, 766 F.2d 304 (7th Cir.), cert. denied 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1985).

Each of the last four cited cases involved delays necessitated by efforts to obtain a narcotics dog to sniff luggage or packages.

In this case the record shows there was some initial difficulty in obtaining a canine unit. Apparently the units assigned to the Indianapolis Police Department were unavailable requiring the assistance of another Department. Eventually a unit was dispatched from the Greenwood Police Department. Having a reasonable suspicion that drugs may have been present in Kenner's vehicle, Officer McDonald acted diligently in obtaining a dog in order to confirm or dispel his suspicion.

Obviously there will be inevitable delay in obtaining a dog to sniff luggage or packages transported on interstate highways. Kenner's forty-five minute detention in this case did not exceed the permissible bounds of an investigatory stop and thus did not violate the Fourth Amendment. The trial court did not err in denying Kenner's motion to suppress evidence.

Judgment affirmed.
GARRARD, J., concurs.
RILEY, J., dissents with opinion.