This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are de minimis intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.
Lower court opinion: United States v. Rodriguez, 741 F.3d 905 (8th Cir. 2014)
This important case will address the common police tactic of extending a routine traffic stop after the initial basis for the stop has been resolved. It will require the Court to elaborate on a comment in Illinois v. Caballes, 543 U.S. 405, 407 (2005), where, in cursorily holding that conducting a drug sniff during an ongoing traffic stop was reasonable, the Court said that “[a] seizure that is justified solely by the interest of issuing a warning ticket to the drive can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” It also means the Court will have to address head-on the question that, as Wayne LaFave explains, it managed to dodge in Ohio v. Robinette, 519 U.S. 33 (1996)—namely, “whether a traffic offender somehow becomes ‘unseized’ upon return of his license notwithstanding a continuation (albeit on a different subject) of police discussion with the stopped driver.” 4 Search and Seizure § 9.3(g) (5th ed. 2012), at 553.
Here are the facts: After stopping Rodriguez near Valley, Nebraska, for a routine traffic violation, the officer called for back-up, issued Rodriquez a written warning, and then asked Rodriquez for consent to walk his drug detection dog around the car. When Rodriquez refused to consent he was ordered out of the car, where he stood for the seven to eight minutes it took the second officer to arrive. The police then deployed the dog, which alerted and led to the discovery of methamphetamine.
The Eighth Circuit acknowledged that once an officer decides to let a routine traffic offender depart with a ticket, a warning, or an “all clear,” the Fourth Amendment limits any subsequent detention or search. But it held that “[a] brief delay to employ a dog does not unreasonably prolong the stop, … and we have repeatedly upheld dog sniffs that were conducted minutes after the traffic stop concluded.” 741 F.3d at 907, citing United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (four-minute delay upheld as a de minimis intrusion on personal liberty); United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (two-minute delay upheld); United States v. Morgan, 270 F.3d 625, 632 (8th Cir. 2001) (delay of “well under ten minutes” upheld). The Seventh Circuit, among others, has reached a similar conclusion. United States v. Carpenter, 406 F.3d 915 (7th Cir. 2005) (five-minute delay was a “modest incremental” one and not unreasonable).
State practitioners will recognize the scenario in Rodriquez as a variation of the “Badger” stop, a ruse addressed in State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, and State v. Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104. A “Badger” stop involves an attempt to obtain a driver’s consent to search a car by taking advantage of the fact that motorists think that they are obliged to answer questions and not to leave the scene, even though as a matter of law the motorist is free to go because the basis for the initial stop has been resolved. Williams, 255 Wis. 2d 1, ¶43 (Abrahamson, J., dissenting). To simplify a great deal, the validity of any consent to search given during a “Badger” stop will depend on a fact-specific inquiry into whether a reasonable person would have felt that the stop was concluded—and, therefore, that he or she was free to leave—once the officer issued the warning or ticket or “all clear.” (For much more detail, see our posts on the cases, here and here. LaFave, §§ 9.3(a) to (g), has a lot to say on this topic, too.)
Of course, unlike the defendants in Williams and Jones, Rodriquez refused to give consent, and was then ordered out of the car and made to wait for the arrival of the backup officer. Under our cases, that fact would mean Rodriquez was unreasonably detained, for no reasonable person in his situation would have felt free to leave. Indeed, Rodriguez’s case is very much like State v. House, 2013 WI App 111, 350 Wis. 2d 478, 837 N.W.2d 645, where the police officer didn’t even ask House for consent to search, but just went ahead and conducted the dog sniff after issuing House a warning and returning House’s driver’s license. Distinguishing State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, where a drug dog sniff occurred during an ongoing traffic stop, and relying on Williams and Jones, the court of appeals held that issuing the warning and returning the license ended the initial stop. Because the purpose of the stop had been resolved, the reasons justifying the initial stop ceased to exist and the continued detention of House to conduct the dog sniff was not reasonably related in scope to the circumstances justifying the stop. (¶¶6-10). (Rodriguez would also have prevailed on a suppression motion if he had been charged in state court, rather than federal court, given State v. Louthan, 744 N.W.2d 454 (Neb. 2008), a decision similar to House.)
Though this case involves a dog sniff, the Court’s decision will arguably set the standard for the use of other investigative techniques after the conclusion of a traffic stop. It will also determine the continued vitality of the Williams and Jones approach. The Court could reject the Eighth Circuit’s conclusion, and hold either that: 1) the conclusion of the traffic stop makes continued detention unreasonable in the absence of some other additional justification other than the basis for the initial stop; or 2) the reasonableness of the continued detention depends, as Williams and Jones hold, on whether a reasonable person would have felt free to leave. Or the Court could affirm the Eighth Circuit, which would mean the approach of Williams and Jones is replaced by the more amorphous test as to whether the stop was “unreasonably prolonged” because it went beyond a de minimis intrusion on the driver’s liberty. Under 10 minutes is okay; how about 11? And how will we know?
As Rodriguez’s cert petition nicely puts it (at p. 8): “These [routine traffic] stops play a central role in many criminal prosecutions and, more importantly, in the day-to-day lives of the traveling public. If not properly contained, permitting de minimis intrusions on personal liberties could swallow the protections of the Fourth Amendment entirely.” With this case and Heien v. North Carolina on the docket, it looks like the Court’s decisions this term will have a significant impact on the motoring public—which is to say, just about everybody.
UPDATE (1/28/15): In this summary of the oral argument on the case, Scotusblog commentator Rory Little predicts the Court will reverse and remand because it will be “unwilling to allow a legal universe in which suspicionless drug-dog sniffs—whether a ‘search’ or not—become a routine ‘part of the mission’ of traffic stops, as Justices Scalia and Alito put it.” As Justice Sotomayor observed in response to the government’s suggestion that it was reasonable to briefly extend a traffic stop to allow a drug dog to arrive : “we can’t keep bending the Fourth Amendment to the resources of law enforcement.” (A transcript and audio are available at the Scotusblog case page.)