Justice, the longtime York County police dog won over three S.C. Supreme Court justices Wednesday – by a nose over two dissenting justices.
And because of the 3-2 decision, the 30 year sentence for trafficking in ecstasy and possession of marijuana was upheld for a drug dealer convicted six years ago.
The state Supreme Court ruled Wednesday in split 3-2 decision that York County Sheriff’s Office deputies had probable cause in 2008 to stop Kenneth Morris II, 35, of Wilmington, N.C., and a passenger on Interstate 77 in York County when Morris was following a truck too closely in a rental car. Deputies said they smelled marijuana and found empty cigars called “blunts” often used to smoke marijuana in the car’s interior.
Justice, the drug-sniffing dog, was brought in with his handler, but did not find any drugs. Officers testified that may have been because of rainy conditions.
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Deputies continued to search and found 393 ecstasy pills in a gift bag in the trunk and a half-pound of pot hidden under the spare tire.
Justice, a 7-year-old black Labrador retriever handled by Deputy Randy Gibson, was rescued as a puppy then trained for use on drug cases, said sheriff’s spokesman Trent Faris. The dog is often taken to public events and is beloved in York County, Faris said.
“Justice is one of our best drug dogs and best-loved dogs,” Faris said.
But Morris’ lawyers at the 2009 trial and before the court of appeals and state Supreme Court claimed Justice blew the case. Morris’ lawyers argued failure of the dog to find the drugs meant that the officers then had no probable cause to search the trunk. The drugs found were “fruit of an illegal search and seizure,” Morris’ lawyers argued, so should not be used as evidence against Morris.
The trial judge and appeals court disagreed.
Supreme Court Justices Costa Pleicones and Donald Beatty agreed with Morris in Wednesday’s ruling, saying that Justice’s failure meant Morris should get a new trial because it was already a “close question” on whether the traffic stop was legal in the first place.
“Once the drug dog failed to alert, the already marginal ‘objectively reasonable suspicion’ to search the vehicle and its trunk evaporated,” Pleicones wrote.
Yet Supreme Court Justice Kaye Hearn wrote with agreement from Chief Justice Jean Toal and Justice John Kittredge that deputies had probable cause because of the totality of the circumstances, even with Justice failing to find the drugs. Justice’s failure to alert is “certainly a consideration in determining probable cause,” yet case law shows “a near universal recognition that a drug-sniffing dog’s failure to alert does not necessarily destroy probable cause.”
The failure of drug dogs to find drugs eventually found by human officers has been argued all the way to the U.S. Supreme Court, including one case where the U.S. justices stated “the infallible dog ... is a creature of legal fiction,” and that even the best drug dogs have “limitations of the dogs themselves.”
Prosecutors lauded the decision not to order a new trial based on a dog’s mistake.
“We are pleased that the good law enforcement in this case, which was upheld by the Supreme Court, removed drug traffickers from the streets,” said Mark Powell, spokesman for the office of S.C. Attorney General Alan Wilson.
Morris, whom court and police records show has two previous convictions for drug trafficking and one for marijuana possession, remains in prison.
Morris’ trial and appeals lawyers could not be reached for comment to see if Morris will try to appeal the decision exonerating Justice to the U.S. Supreme Court.
Justice, the drug dog, remains on the job.