By Olivia C. Jerjian, ACLR Featured Online Contributor
A little past midnight on March 27, 2012, Dennys Rodriguez was driving on a highway in Nebraska with a friend. An officer with a drug sniffing dog in his patrol vehicle saw Rodriguez’s car swerve into the shoulder of the highway for a few seconds, breaking one of Nebraska’s traffic statutes, and pulled Rodriguez over. Rodriguez handed his driver’s license, registration, and proof of insurance to the officer. He explained that he was trying to avoid a pothole, but the officer was skeptical of this justification. He noticed that the passenger seemed nervous and that the car had a strong scent of air freshener. The officer asked Rodriguez to step out the car – an order which Rodriguez followed. However, when the officer asked Rodriguez to accompany him to his patrol car, the driver asked if he had to. Surprised, the officer told him he did not, and Rodriguez preferred remaining in his own vehicle. In the eyes of the officer, this refusal was a subconscious sign of guilt, even though Rodriguez’s record turned out to be clean, as well as that of his passenger.1
The officer was determined to walk his drug sniffing dog around the vehicle,2 but first, he called backup as a safety precaution. He returned Rodriguez’s documentation and issued the driver a citation, seemingly marking the end of the traffic stop. However, Rodriguez was not permitted to leave, as the officer made him wait outside of his car until the second officer arrived. Rodriguez asked whether he could refuse. When the officer said he could do so, Rodriguez explicitly refused to consent to the canine sniff, but he was ignored. A minute after the officer had issued the citation, he walked his dog around Rodriguez’s car. The dog alerted to the presence of methamphetamine seven to eight minutes after the officer had written the traffic citation. Rodriguez was charged with possession with intent to distribute fifty grams or more of methamphetamine and sentenced to five years in prison.3
In January 2014, the Eighth Circuit affirmed the trial court’s decision that the canine sniff was constitutional because the traffic stop was a de minimis intrusion on Rodriguez’s person and, thus, was not unreasonably prolonged.4 According to the court, a canine sniff during a traffic stop does not infringe upon a constitutionally protected interest in privacy.5 The court had previously upheld detentions and canine sniffs conducted two to ten minutes after the traffic stop had concluded as constitutional under the Fourth Amendment.6 Rodriguez appealed, and the Supreme Court granted certiorari in October 2014<7 and heard argument this past January.
Although largely overlooked by the media in favor of more prominent cases such as those on same-sex marriage and the Affordable Care Act, Rodriguez’s outcome is significant as it is likely to impact the strained post-Ferguson relationship between the police force and the community. The issue at the heart of Rodriguez is whether a police officer can extend a routine traffic stop (also known as a Terry stop) and delay the release of the driver to allow drug-sniffing dogs to examine the car. The Supreme Court should reverse the Eighth Circuit’s ruling in Rodriguez in order to limit police officers’ discretion in detaining drivers, as suggested by Justices Breyer, Sotomayor, and Kagan during argument.
Rodriguez essentially boils down to whether the Supreme Court should adopt a brightline rule or a reasonableness test. The appellants advocated for a straightforward brightline rule.8 According to them, a traffic stop is over when the officer has completed the purpose of the stop, often symbolized by the issuance of a citation or a warning or the return of documentation, such as driver’s license and car registration. An officer can conduct a canine sniff as long as it occurs during the traffic stop, not afterwards. In contrast, the respondents argued that the Supreme Court should adopt a reasonableness test standard, taking into account the total length of the stop and the relative proportion of time of the dog sniff to the rest of the stop.9
The Supreme Court has dealt with traffic stops and sniffing dogs previously. The most relevant decision to Rodriguez is Caballes, holding that a canine sniff conducted during a traffic stop was constitutional, implying that any investigation conducted subsequent to the end of the traffic stop would be unreasonable if there was no consent to a search or a new probable cause.10 In fact, during argument, Justice Breyer sarcastically pointed out that the Court could simply follow the Caballes precedent: “I have a great idea. Why don't we say . . . that the stop . . . cannot be prolonged more than the time reasonably required to complete the mission, which happens to be giving a temporary—a traffic ticket . . . What an original idea I had. It happens to be language from two cases that we've already said.”11 Similarly, Justice Kagan firmly expressed her dislike for the position Ginger Anders, the Assistant to the Solicitor General, presented by stating that giving officers “extra leeway to detain people . . . longer than an ordinary traffic stop would take” was “just not right.”12 Justice Sotomayor was also reluctant to “[create] a Fourth Amendment entitlement to search for drugs by using dogs, whenever anybody’s stopped.”13
Justices Breyer, Sotomayor, and Kagan were right to express reticence in legitimizing the reasonableness test the United States argued for, as such a test would result in allowing police officers to conduct post-traffic stop detentions as part of a de minimis exception. The Supreme Court should contain the Fourth Amendment traffic stop jurisprudence by following Caballes for two reasons. First, allowing officers to detain people without reasonable suspicion even though the mission of the traffic stop was over would give the police too much latitude in conducting criminal investigations and render the Fourth Amendment meaningless. Second, records-checking and post-traffic stop questioning are distinguishable from detaining someone to conduct a canine sniff on that person’s car.
Affirming the Eighth Circuit’s decision would give police officers too much freedom in conducting investigations without reasonable suspicion. The brightline rule for which Rodriguez’s counsel advocated—once the traffic stop is over, the driver is free to go—provides uniform objective guidance for police officers to follow in a traffic stop procedure: officers can use a sniffing dog up until the stop is over, but conducting a canine sniff after the stop constitutes a Fourth Amendment intrusion. Anders argued that the Supreme Court had already ruled that a canine sniff in itself did not constitute a Fourth Amendment search.14 A brightline rule disallowing the detention of drivers beyond the technical end of a stop would lead to arbitrary results and make sequencing dispositive.15 According to her, police officers need to be able to decide whether to conduct a canine sniff during the narrowed scope of a stop or after issuing a citation to ensure their safety.16 There is some truth in Anders’s argument, as police officers are entitled to consider their safety during traffic stops.17 However, once an officer has finished investigating the traffic violation, the driver’s individual liberty interest carries more weight than officer safety.18 Officers will have likely exercised sufficient precautionary measures by the time the investigation is over.
Anders further argued that, even if the canine sniff constituted a Fourth Amendment intrusion, the intrusion was so minimal that it should be allowable, as the officers’ “mission” included looking for potential evidence of criminal behavior.19 However, adopting this line of argument strips the Fourth Amendment of its meaning,20 as it essentially allows officers to extend a stop and conduct a search for which they might not even have reasonable suspicion. The brightline rule provides guidance to police officers and leaves less room for manipulation.21 The reasonableness test, on the other hand, would allow officers to decide how long a de minimus intrusion can be on a subjective, inconsistent basis—five, ten, twenty, or forty minutes? While it can be argued that courts could set time limits for police officers, this would constitute an inappropriate intrusion on the judicial branch’s part. Police officers, not judges, are at the frontline of traffic stops,22 so they should have the ability to conduct them without worrying about meeting an arbitrary time limit. Moreover, courts would have a hard time defining such a time limit. They could, of course, look to the average time for a stop. However, would the time limit vary based on the number of officers involved, the amount of resources they have available to them, and their experience? In essence, courts would be conducting a reasonableness test instead of the officers by setting temporal limits on traffic stops. Police officers should have leeway in conducting traffic stops, especially to ensure their own safety. However, they should not have so much latitude so as to decide how long to detain drivers beyond the end of a traffic stop. The brightline rule, which simply asks officers to conduct canine sniffs before the end of a stop, provides an effective limitation that does not overly burden the police while protecting the drivers’ Fourth Amendment rights.
Justice Alito was concerned that a brightline rule would incentivize officers to prolong traffic stops until a sniff dog and a backup officer arrived on site, essentially leading to the same concrete result for the stopped driver.23 However, officers have a duty to be reasonably diligent, which would disallow them from unnecessarily prolonging a stop. Furthermore, as Justice Kagan pointed out, officers should not be permitted to take any action that would be extraneous from the purpose of the stop, such as a cigarette break, during the stop. As such, canine sniffs, though more useful than cigarette breaks, should be considered extraneous to the purpose of the stop and are, therefore, no different if conducted after the officer resolved the purpose of the stop. Though one could argue that officer diligence also limits the scope of a traffic stop in a reasonableness test, the brightline rule makes it easier for courts to look at whether a stop was unreasonably prolonged to conduct a canine sniff. Judges will only have to look at the time it took the officer to end the traffic stop by issuing a citation, a warning, or returning documentation to the driver and whether the officer took an unreasonably long time in order to delay the end of the stop . On the other hand, the reasonableness test does not provide a clear standard for courts to determine whether an officer was reasonably diligent. All courts would have to look to would be the temporal proportion of the canine sniff in relation to the total length of the stop. Officer diligence is therefore less likely to reasonably limit the length of a stop in a reasonableness analysis than in a brightline rule one.
Additionally, records-checking and extensive questioning differ from detaining someone to conduct a canine sniff on that person’s car. During argument, Justice Alito was adamant on making counsel for Rodriguez distinguish records-checking or prolonged questioning after a stop—which courts have allowed—from a post-stop canine sniff. Though counsel for Rodriguez did not articulate this argument, questioning is radically different from a sniff dog in that one can refuse to answer a question—especially when one has not been arrested. By contrast, one cannot refuse a sniff from a dog walking around a car, like Rodriguez. Another argument brought up by Justice Roberts is that records-checking and questioning allow for the officer’s safety during the stop, as the officers should “know who he is dealing with.”24 However, once the stop is over, the officer should no longer be concerned for safety as the driver is supposed to leave. Finally, records-checking and questioning have long been accepted as part of a traffic stop, while even Anders conceded that canine sniffs were not part of the ordinary routine.25
Rodriguez should be reversed for policy reasons as well, as Justice Sotomayor tried to help counsel for Rodriguez articulate.26 A reasonableness test is likely to enable racial profiling, as minorities are statistically more likely to be stopped than white drivers.27 In contrast, a brightline rule is more likely to protect innocent motorists, including minority drivers, from unreasonable searches.
For these reasons, the Court should reverse the Eight Circuit’s decision in Rodriguez and limit officers’ ability to detain individuals without reasonable suspicion, even though the Justices sounded divided during argument. The de minimis exception should not engulf the point of the Fourth Amendment, which is to protect individuals’ rights, not to promote general public safety.