Opinion analysis: Traffic stops cant last too long or go too far, and no extra dog sniffs!

The Court issued a seemingly simple rule today in Rodriguez v. United States: A seizure for a traffic violation justifies a police investigation of that violation not more — and authority for the seizure . . . ends when tasks tied to the traffic infraction are or reasonably should have beencompleted. Because being stopped by police officers for traffic violations is a common occurrence for us all (not just drug dealers), this six-to-three decision probably gives some (small) comfort to many. Traffic stops have to be reasonably short, and unless there is reasonable suspicion of some other crime, officers cant use the stop as a subterfuge for extraneous investigation. Most specifically, says Justice Ruth Bader Ginsburgs opinion for the Court, officers cant prolong a traffic stop just to perform a dog-sniffing drug search.

But as Justices Samuel Alito and Clarence Thomas point out in separate dissents, the world is usually more complicated and nuanced than sound-bite summaries can accommodate. In fact, says Justice Thomas, the majoritys rule will lead to arbitrary results, depending on how efficient, or technology-adept, the individual officer who stops a car is. And Justice Alito predicts, whether cynically or just realistically, that officers will now be trained on the prescribed protocols that will still enable them to conduct traffic-stop dog sniffs if they want to. (He says he would love to be the proverbial fly on the wall for such training sessions really?) Moreover, he finds it perverse that if the officer in this case had not waited for a back-up officer for safety reasons, he could have performed a solo dog sniff without any constitutional problem.

Brief facts

Two prior posts (previewing and then analyzing the oral argument) describe the setting for todays Fourth Amendment decision. One midnight in Nebraska, K-9 Officer Morgan Struble was driving alone with his drug-sniffing companion when he saw Rodriguezs car drift over the shoulder line and then jerk back onto the road. Struble stopped the car, asked for an explanation (pothole), and took Rodriguezs license, registration, and proof of insurance to run a records check back in his patrol car. He asked Rodriguez to accompany him, but when Rodriguez asked if he had to and Struble said no, Rodriguez decided to wait in his own vehicle. (This brings to mind the many videos populating the internet these days that show people not complying with police requests unless ordered to. As I often remind my students, these videos tend not to show the incidents where such standing on your rights goes badly for the private citizen. Know your rights, but dont always invoke them, is my realpolitik advice. The real world is a volatile place.)

In any case, Struble returned to Rodriguezs car, began to question a passenger, and then went back to his patrol car to run a records check on the passenger. He also radioed for a back-up officer Officer Struble had apparently already decided to conduct a dog sniff of Rodriguezs car and he wanted another officer there for safety. With the second records check still negative, Struble went back to Rodriguezs car again, finished writing a warning ticket, and asked permission to walk his dog around the car. When Rodriguez declined that invitation as well, Struble (surprise!) ordered him from the car and did it anyway. And surprise again! — methamphetamine.

The Fourth Amendment law of traffic stops

Justice Ginsburg was a natural choice to write this decision (Chief Justice Roberts being in the majority), because she was the author of a prior opinion (Arizona v. Johnson) that allows officers to pat down, for safety reasons, individuals stopped for traffic violations, and also (in dictum) to question them during the stop about unrelated matters. But Justice Ginsburg has also expressed discomfort regarding drug-sniffing dogs, and she dissented in Illinois v. Caballes, arguing that dog sniffs ought not be routinely permitted during traffic stops; otherwise, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.

In todays decision, Justice Ginsburg wrote that the Court adheres to Caballes, but sticks to the line drawn there: a traffic stop can become unlawful if it is prolonged beyond the time reasonably required to complete the [traffic stop] mission. In this case, because Officer Struble agreed that he had got[ten] all the reasons for the stop out of the way before conducting the dog sniff, the dog sniff violated Caballess Fourth Amendment rule. Justice Thomass dissent says that the majority accomplishes today what the Caballes dissent could not. But this is a shade too broad. Caballes allows a dog sniff if conducted during a reasonable traffic stop time; todays decision forbids it if it unnecessarily prolongs that time.

As both dissents (Thomass and Alitos) note, this can be a razor-thin and sometimes arbitrary distinction but such are the realities of a Fourth Amendment jurisprudence when the Framers gave us only one word unreasonable to define the scope of the amendment. The criminal procedure treatises are full of such thin, gray-area search-and-seizure distinctions otherwise what would criminal law lawyers and professors do for a living? This morning the Court split six to three as to where the line should be. But with the swirl of popular culture concern regarding perceived police over-reaching, todays decision is hardly surprising.

Two small loose ends

This case may not be as big a win for Rodriguez as it looks, because the Court remands the case to examine whether there was, in fact, some reasonable suspicion of further crime that would have allowed the officers to further detain him. Two trial judges said there was not, but the Eighth Circuit did not address that question. Justices Thomas and Alito now say there was; the majority says that is unnecessary. Notably, Justice Anthony Kennedy who otherwise joined Justice Thomas did not join that aspect of Thomass dissent.

It is also notable that Justice Alito closed his dissent with a footnote stating that it remains true that [during a traffic stop] police may ask questions aimed at uncovering other criminal conduct. It is not at all clear that the majority would agree with this reading; it says only that an officer may conduct certain unrelated checks during a stop, without discussing what limitations certain may imply. The majority also says that on-scene investigation into other crimes detours from that mission of traffic safety. The time limit of a reasonable traffic stop no doubt applies, and the issue of unrelated questioning is not otherwise part of the holding of the Court. Justice Alitos footnote suggestion is in the time-honored tradition of attempting to influence the understanding of a majority opinion by giving ones own reading in dissent.

Is the Court slowly walking away from Place?

Perhaps the most interesting aspect of todays decision is the further evidence that the Court is quietly distancing itself from its decision three decades ago in United States v. Place, holding that a specially trained dog sniff is not a search under the Fourth Amendment. That 1985 ruling is one of the more extreme extensions of the reasonable expectation of privacy test which, while serving the liberal purpose of extending the Fourth Amendment to non-physical searches, has been extended on occasion to permit trespassing on open fields (including fenced-in wooded preserves) and searches of bank and phone records, without any Fourth Amendment constraint. More recently, however, the Court has recognized that privacy has some scope beyond expectations that the real world may compel us to abandon, and the Fourth Amendment may still have something to say about it. Thus the Court has more recently applied the Fourth Amendment to cell phones(last years decision in Riley v. California); images of residential interiors accessible by technology (Kyllo v. United States in 2001); and even ones own front porch (Florida v. Jardines in 2013 another dog sniff case).

Today the majority described a dog sniff as a measure aimed at detecting evidence. That sounds like a search to me. Even the Justice Thomas noted in dissent that a dog sniff is directed at uncovering contraband. And recall that in Jardines, Justice Scalia noted that a dog sniff, even on a porch that is visible and generally accessible to the public, can be a search because it is directed at obtaining information.”

Have you ever accidentally knocked something over and then embarrassedly just walked away rather than helping to clean it up, hoping that no one noticed? Sometimes the Supreme Court corrects its own mistakes this way not overruling, but just quietly and slowly walking away, over years and various decisions, from a rationale that increasingly seems mistaken. As Justice Thomass dissent noted today (not happily), the majoritys reasoning appears to come down to the principle that dogs are different. Perhaps he is correct. But specially trained dogs do not seem different from thermal heat-imagers, GPS locators, or wiretapping, all of which have been ruled searches by the Court in the past. Their employment may or may not be reasonable it depends on the circumstances. But they are all investigative tools. Perhaps Justice Thomas is actually noting that the Court is moving toward the realization that drug-sniffing dogs are actually no different from other search devices.