What is a “sniffer”? Should I be worried about it?
We have addressed in a variety of ways the subject of how police officers make their decisions on whether to pull a driver over based on reasonable suspicion of drunk driving, and how once that takes place they interact with the driver to make a follow-up determination of whether to have the driver take field sobriety tests and a pre-arrest blood alcohol test. The intermediate stage of this process — interaction with the driver after the stop — frequently involves something referred to by prosecutors and defense attorneys alike as the “plain view” doctrine.
The plain view doctrine establishes that if a police officer sees — or smells — evidence of alcohol, that can be used as justification for the officer to take further action, including a more thorough search of the vehicle or to initiate field sobriety or alcohol detection tests. This doctrine has applied to police drunk driving searches, seizures and arrests in Oklahoma for decades. One defense to the employment of this doctrine can be to challenge the officer’s sensory acuity, but a company that manufactures a device called “The PAS IV Sniffer” (PAS standing for “passive alcohol sensor) claims to have found a technological way to defeat such challenges.
The Sniffer looks like, and superficially operates like, a flashlight. But it is much more than that underneath, its primary function being to serve as an “electronic nose” that can detect the presence of alcohol in the air — not just on the driver’s breath, but in the vehicle as well. The manufacturer of the tool claims that although it does not measure alcohol concentration, it can still be effective in helping officers to determine, for example, if an open container is in the vehicle even if it is not in plain sight. Obvious law enforcement uses for The Sniffer are when a car’s occupants have had time to conceal an open container of alcohol before a police officer has a chance to observe it, or in cases of underage drivers for whom the measurement of alcohol concentration is not as important as it is with a person of legal drinking age.
The Sniffer is not without its critics, who have questioned the evidentiary value of the device on invasion of privacy grounds. They argue that the plain view doctrine anticipates that the police officer will use his own senses when detecting the presence of alcohol, and that inserting an electronic snooper into the car is not what courts have intended when they established and have interpreted the doctrine. The manufacturer of the device balks at such concerns, claiming that the plain view doctrine does not go into such detail about the nature of the officer’s “sensory impressions” and that The Sniffer is to the officer’s sense of smell what eyeglasses are to his sense of vision.
Although it one day may become so, the Sniffer is not yet a tool used by law enforcement in Oklahoma. So there are not yet any cases to determine which way Oklahoma courts might decide if a person arrested for drunk driving challenges the legal validity of The Sniffer in this state on privacy or any other grounds. But given how courts have applied a variety of automobile exceptions to the “exclusionary rule” — the doctrine that would otherwise preclude the admissibility of evidence obtained without a search warrant — challenging The Sniffer would need to be only one of the defenses that your attorney should employ if it is ever used against you in connection with a drunk driving charge.
