The Supreme 9 Revisits K-9s (again)
On January 21, 2015, the Supreme Court of the United States heard oral argument in Rodriguez v. United States, Docket No. 13-9972. This case intentionally raised an interesting Fourth Amendment question pertaining to the scope of a seizure (traffic stop), and unintentionally (at least in my view) left a very interesting question open for another day; one that strikes at the core of a well-established police practice: requesting a driver’s license, vehicle registration, and proof of insurance.
Every year, more than seventeen million drivers are subjected to a traffic stop. Each traffic stop is considered a “seizure” under the Fourth Amendment, Brendlin v. California, 551 U.S. 249 (2007), and, just after midnight on March 27, 2012, the traffic stop of Dennys Rodriguez’s vehicle was no exception.
The Traffic Stop
Rodriguez and his passenger were driving — not at an excessive speed or erratically, mind you — on Nebraska State Highway 275 when a police officer noticed the vehicle cross over the line separating the shoulder from the road for about two seconds–and that was enough for this officer to effectuate a traffic stop of Rodriguez’s vehicle.
The trilogy was requested: a driver’s license, registration, and proof of insurance. The officer, noticing an odor of an air freshener and that the passenger seemed nervous, asked Rodriguez to get out of the car. Rodriguez complied, but when the officer asked him to come to his patrol car, Rodriguez declined the invitation. In the officer’s experience, this was “subconscious behavior that people concealing contraband will exhibit.”
The officer returned to his cruiser — alone — and called for a records check on Rodriguez before returning to Rodriguez’s vehicle to talk to the passenger. He requested for ID from the passenger and asked where they were coming from and going to. “To look at a car to buy,” the passenger said. To the officer, this was not likely. He returned his cruiser to run a records check on the passenger, request a second officer, and begin writing a “warning ticket” for Rodriguez.
By the time the officer returned all of the documents to Rodriguez and the passenger and issued the written warning, he had, in his words, “got[ten] all the reason (sic) for the stop out of the way.” Nonetheless, he did not permit Rodriguez to leave.
Why? All along, the officer had a drug-detection dog, or K-9, in his cruiser and had decided that he was “going to walk [his] dog around the vehicle regardless of whether [Rodriguez] gave [him] permission or not.” After asking if Rodriguez had “an issue” with him walking his K-9 around the outside of the vehicle, which Rodriguez said he did not, the officer walked his dog around the vehicle. This was about 7 to 8 minutes after issuing the written warning.
Guess what? The dog alerted; a search of the interior of the car was performed; a bag of methamphetamine was discovered.
The Motion to Suppress
Rodriguez filed a motion to suppress the physical evidence seized from his car, arguing that the police officer had violated his Fourth Amendment rights by detaining him for a dog sniff without reasonable suspicion of criminal activity.
The federal Magistrate found that the sniff occurred about 8 minutes after the traffic stop had concluded and that all the officer had was a “big hunch.” The recommendation? The motion should be denied. Why? The Eight Circuit had a “de minimus” standard, which basically held that when an officer has K-9 resources immediately available after making a traffic stop, it does not violate the Fourth Amendment to require the motorist’s detention to be “momentarily extended” for an exterior sniff. See United States v. $404,905.00 in U.S. Currency, 182 F.3d 643 (8th Cir. 1999). The magistrate held that the caselaw suggests up to 10 minutes for a suspicionless detention for a sniff is permissible.
The District Court adopted the Magistrate’s factual findings and legal conclusions–in their entirety. The Motion was denied.
Rodriguez entered a conditional guilty plea to the Indictment reserving his right to appeal, which he did.The Eighth Circuit affirmed, reasoning that “a brief delay to employ a dog does not unreasonably prolong the stop.”
The Supreme Court Granted certiorari.
The Positions on Appeal
The Petitioner (Rodriguez) argued that “a traffic stop must be brief and reasonably related in scope to the circumstances that justified the detention in the first place. Initial Brief. To Rodriguez, an officer may employ a K-9 drug sniff during a traffic stop provided the sniff does not “delay completion of the tasks related to the traffic infraction.” Id. To Rodriguez, the “de minimus” rule was unwieldy and put too much discretion in the officer’s hands. Id. Therefore, a bright-lined rule was needed to provide guidance to officers in future cases. (Oddly, the Petitioner seemed to argue for a rule where, as soon as the written citation is handed to the driver, the traffic stop must be complete. I say oddly because, as the Court noted during oral argument, that seemed like a rule immediately susceptible to abuse by police).
The Respondent (United States) unsurprisingly took the position that “a dog sniff may be a reasonable incident of a traffic stop,” relying on Illinois v. Caballes, 543 U.S. 405 (2005). Answer Brief. According to the government, the sequence of events during a stop (that is, whether a ticket is issued before or after a K-9 sniff) does not affect the constitutional reasonableness of the sniff; therefore, this sniff was reasonable. Id.
In Caballes, the Court held that a dog sniff could constitutionally prolong a traffic stop, so long as the total duration of the stop remains “reasonable.” The exact language of the holding is: “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” (As you can see, during the Oral Argument in Rodriguez, this “complet[ing] that mission” phrase was placed under scrutiny).
In Arizona v. Johnson, 555 U.S. 323 (2009), the Court held that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
The bench was awfully “hot,” and seemed to desperately want answers to questions that could cabin the Petitioner’s positions, and apply them to other factual scenarios. Counsel for the Petitioner struggled to answer the Court’s questions, and at times, his position seems weak and unnecessarily complicated.
Justices Sotomayor and Kagan seemed to be leaning toward the Petitioner; Justice Breyer seemed to be trying to help flesh out exactly what each side’s positions were; and Justice Scalia seemed on the side of the Respondent.
Most interesting, though, was that several times the question arose as to why police officers are constitutionally permitted to ask for documentation (e.g. insurance and registration) on routine traffic stops. Why don’t those ancillary requests exceed the scope and “mission” of the stop. However, as the Justices pointed out, the Petitioner adopted that premise without challenge–and probably shouldn’t have.
This will be a very interesting opinion.