Opinion analysis: Traffic stops can’t last too long or go too far, and no extra dog sniffs!
on Apr 21, 2015 at 7:55 pm
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 been—completed.” 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 can’t use the stop as a subterfuge for extraneous investigation. Most specifically, says Justice Ruth Bader Ginsburg’s opinion for the Court, officers can’t 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 majority’s 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.
Two prior posts (previewing and then analyzing the oral argument) describe the setting for today’s Fourth Amendment decision. One midnight in Nebraska, “K-9” Officer Morgan Struble was driving alone with his drug-sniffing companion when he saw Rodriguez’s car drift over the shoulder line and then jerk back onto the road. Struble stopped the car, asked for an explanation (“pothole”), and took Rodriguez’s 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 don’t always invoke them,” is my realpolitik advice. The real world is a volatile place.)
In any case, Struble returned to Rodriguez’s 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 Rodriguez’s car and he wanted another officer there for safety. With the second records check still negative, Struble went back to Rodriguez’s 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 today’s 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 Caballes’s Fourth Amendment rule. Justice Thomas’s 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; today’s decision forbids it if it unnecessarily prolongs that time.
As both dissents (Thomas’s and Alito’s) 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, today’s 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 Thomas’s 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 Alito’s footnote suggestion is in the time-honored tradition of attempting to influence the understanding of a majority opinion by giving one’s own reading in dissent.
Is the Court slowly walking away from Place?
Perhaps the most interesting aspect of today’s 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 year’s decision in Riley v. California); images of residential interiors accessible by technology (Kyllo v. United States in 2001); and even one’s 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 Thomas’s dissent noted today (not happily), the majority’s “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.