By Logan Dwyer, ACLR Blog Editor
Incorporation of the Fourth Amendment through the Due Process Clause of the Fourteenth Amendment was a sound decision. The Fourth Amendment’s federalized baseline governing police conduct assures that the police will respect citizens’ privacy rights while standardizing the circumstances under which the police my validly conduct searches and seizures. Nevertheless, there are some downsides to incorporation, perhaps the most obvious of which is the complicated, sometimes contradictory rulings the Supreme Court has handed down in response to the great variety of interactions between the police and those they protect. The Court has opined upon dog sniffs, DNA1 swabbing ,2 thermal imagers,3 and cell phone data searches.4 Conscious that the police cannot function effectively if they are overburdened with procedure and red tape, the Court has also carved out a number of exceptions to the warrant requirement (for example, exigent circumstances under Mincey v. Arizona,5 and search incident to arrest under Chimel v. California6), while specially protecting the home and the area around it.7 Analyzing whether a particular police interaction complied with the Fourth Amendment is, as a consequence, not always an easy matter.
One might respond by noting that the intricacies of Fourth Amendment doctrine reflect real distinctions in privacy expectations and social need in different contexts and in light of different police conduct. Thermal imagers, for example, are intuitively distinct from drug-detection dogs, and therefore it makes sense to perform a different analysis for either one. Yet every so often, a case comes before the Court that raises a question that appears so specific as not to merit the Court’s time. Consider, for instance, Illinois v. Cummings,8 which raises the question of whether a police offer violates the Fourth Amendment by asking a driver for his or her license after the reasonable suspicion or probable cause justifying the traffic stop has evaporated. While this is a question squarely sounding under the Fourth Amendment, the Court should nevertheless decline to decide it for two reasons. First, the question presented is too narrow to be of use in guiding future Fourth Amendment jurisprudence; it is not worth the Court’s time to hear argument and apply the relevant principles to such a specific question. Second, and perhaps more saliently, the Court has already agreed to hear argument in Rodriguez v. United States9, where the question is whether a traffic stop may be prolonged once reasonable suspicion has evaporated for a canine drug search. Resolution of Rodriguez will likely answer the question in Cummings by elucidating the broader principles governing searches that occur after an officer’s suspicions have been allayed.
First, the facts and the question in Cummings are both relatively unusual. Respondent Derrick Cummings was pulled over driving a van that was registered to Pearlene Chattic.10 Officer Shane Bland, who performed the stop, initially thought that the registration of the van had expired, so he ran the van’s license plates through the police database.11 As it turned out, the van’s registration was in order, but there was an outstanding warrant for Ms. Chattic.12 Because he couldn’t ascertain on the road whether the van’s driver was male or female—Mr. Cummings was apparently “pinned . . . back in the seat”—Officer Bland turned on his emergency lights and had the van pull over.13 After Officer Bland got out of his car but before he spoke to Mr. Cummings, he determined that Mr. Cummings was male and therefore knew that Ms. Chattic was not in the car.14 Nevertheless, because doing so was a standard practice in his department, Officer Bland asked Mr. Cummings for his license.15 When he was unable to produce one, Officer Bland issued a citation for driving without a license.16
Under current doctrine, everything Officer Bland did before asking for Mr. Cummings’ license was justified by reasonable suspicion. Traffic stops are seizures excepted from the warrant requirement due to driver’s reduced privacy expectations in their cars while on public roads.17 Analyzed under the Terry v. Ohio18 standard set out for investigative detentions, a traffic stop is justified if the officer involved reasonably believes the suspect has committed or is about to commit a crime. Officer Bland’s suspicion that Ms. Chattic would be driving the van registered to her was reasonable; stopping the van to ascertain the identity of the driver was therefore justified. However, once he determined that Ms. Chattic was not driving the van (because the driver was not female) the suspicion justifying the stop evaporated.
Putting aside whether Officer Bland acted lawfully in asking for Mr. Cumming’s license, this was a unique traffic stop. Most traffic stops occur after an officer witnesses an actual violation of the law such as speeding or running a red light.19 The majority of the remainder—that is, stops where the officer suspects ongoing criminal activity—involve equipment, license, or registration violations.20 In these cases, officers generally cannot conclusively resolve suspicion without talking to the suspect or searching the vehicle. Cummings is thus an exceptional case because Officer Bland’s suspicions were completely dispelled simply by observing the driver through the window. Instances where a readily observable characteristic of the driver eliminates all suspicion are few and far between, as evidenced by the fact petitioner in Cummings cites only two cases on point.21
The second reason that the Supreme Court should deny certiorari in Cummings is that argument is already scheduled in Rodriguez v. United States, a case that presents a broader question that would include the facts of Cummings along with more common traffic stops. At issue in Rodriguez is a drug search conducted after a traffic ticket had been issued.22 The police officer in that case noticed a car driving on the shoulder of the highway and pulled the car over to determine the cause.23 After the ticket for the traffic violation had been written and given to the driver, the officer detained the driver further, asked him to turn off his car and step outside it in order to conduct a search with a drug-sniffing dog which resulted in methamphetamines being discovered in the car.24 The Eighth Circuit held that detaining the driver for the drug search was not an unreasonable seizure under the Fourth Amendment since any additional delay was a de minimus intrusion on the driver’s liberty.25
In order to decide Rodriguez, the Supreme Court will have to expand upon its prior decision in Illinois v. Caballes26, which held that otherwise justified seizures become unreasonable under the Fourth Amendment if they last longer than is necessary to investigate or issue a citation. The principles that the Court will clarify in answering whether holding a driver for an unrelated dog sniff search violates the Fourth Amendment will almost certainly answer the question in Cummings, since ordering someone out of their car and letting a dog sniff for drugs is more intrusive than asking a driver for their license. Moreover, Rodriguez presents a more typical fact pattern, meaning that it directly address a situation that the police will likely encounter more often than the situation in Cummings.27 Petitioner in Cummings even suggests (albeit in a footnote) that deciding Rodriguez would essentially decide its case.28
Incorporating the Fourth Amendment has made much more work for the Supreme Court than otherwise—indeed, it is rare for the Court to go a term without deciding at least one case on the Fourth Amendment. Still, the Court has limited time with which to set out the fundamental guidelines governing police interactions with citizens. As a result, specific analysis of particular questions sometimes must take a backseat to enunciation of broader principles applicable to a larger number of cases. Because the question presented in Cummings is too narrow, and because the Court will likely resolve it anyway in Rodriguez, it should not grant certiorari in Cummings.