Wednesday, January 21, 2015

Line Drawing and Dog Sniffing

The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.

After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.

Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.

But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.

O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.

Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.

So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better. 

But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.

Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.

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It seems to me like the caselaw prior to this case was clear and the government was essentially muddying it.

My understanding of the rule in Caballes is this: The dog-sniff should be a non-factor. It's not a search and, for any analysis, can be treated as if it doesn't exist at all. But you still have to have reasonable suspicion for the stop and be diligently pursuing the basis of the stop in order to seize someone. If, during that time, the drug dog leads to independent grounds to seize the defendant, than by all means, but there is no right to seize someone for no reason just because you were about to do a dog sniff. That's the opposite of Caballes. The non-search in Caballes becomes a definite independent seizure.

It seemed to me the government's position wasn't even clearly articulated anyway. Essentially, a reasonable stop was a stop for some indeterminable amount of time based on whether the officer's actions were dilatory (so it seems context-based). On the other hand, whether the dog was unreasonably delaying the stop seems to be based on some definite period of "reasonable time" for a traffic case and, as long as that reasonable time wasn't exceeded, the dog sniff would be fine. The only problem is the two seemed to be in conflict and kept shifting the goalposts. The amount of time that was reasonable depended on the context of the stop, but, if that time wasn't very long, the amount of time that was reasonable could be longer to include the dog. I could never quite grasp concretely what the amount of time was for either. In addition to that, he seemed to completely misunderstand the other side's position. His view was it was just a question of timing - the dog delays the stop either way (the amount of time it takes to write the ticket would apparently take longer) so you might as well use the dog at the end. But my understanding of the defendant's position (and my understanding of the case law with Florida v. Royer, etc.) is that would be impermissible too. If the drug dog is delaying the basis of the stop without some other justification, the police aren't diligently pursuing the stop and it becomes an unlawful detention. Likewise, an officer that has a ticket and holds onto it for no reason is not diligently pursuing the stop. The only gray area to me is when an officer decides to issue a warning. You have to be a mind reader to really know, but I would argue the basis for the stop ends when an officer decides to issue a warning instead and then he has to tell the driver that he is free to go (he can, of course, ask the driver if he would consent to stay and answer some questions, though).

Aside from this, the case does raise some interesting questions going forward. I think many of these questions can be answered in the context of Delaware v. Prouse and Terry v. Ohio. Traffic stops are best analogized to Terry Stops rather than arrests (and I think most courts are in agreement with this). Terry specifically said that officers can ask a person's name, where they're going, etc. without problem. It seems reasonable questions like that could be asked in a traffic stop without abandoning the purpose of the stop or failing to diligently pursue it. As for license and registration, I think it follows from Prouse. Prouse was a compromise. It banned the practice of stopping vehicles individually for no reason, but stated that those vehicles could be stopped in a checkpoint. More importantly, it recognized that, if the vehicle was lawfully stopped, an officer could ask for a license, etc. to make sure a person was lawfully driving. Maybe it's part of the unique regulatory framework automobiles have under the fourth amendment, I don't know. I think requiring these questions to be germane to driving makes a lot of sense, though. But it's not really on point for this case anyway. Everyone agreed that a dog sniff wasn't a routine part of the stop - even if every police officer had a dog with him, that didn't become the new reasonable. Given all this, it seems the prior case law has a clear conclusion. I've always been shocked there's a split on this.

Posted by: Erik M | Jan 22, 2015 5:39:02 PM

Thanks, Erik. There's another wrinkle: the Court has allowed officers to engage in other activities, not directly related to the purpose of the stop, during the course of a stop--e.g., to run a driver's license during a stop for a missing tail-light. This makes it marginally harder to determine the reasonable length of a stop for, e.g., a missing tail-light. That's not a difficult problem to solve, but it does make things slightly murkier.

Still, I agree with your point: the caselaw solves this case, and the government's argument only muddies the waters. That's because the government argues that a de minimis extension is not a violation of the Fourth Amendment. We'd (obviously) have a different case (Caballes) if the government argue that the dog sniff was part-and-parcel of the original stop. But both the facts and the lower court's ruling foreclosed that argument. So we're stuck trying to draw lines around the end of the stop, the length of a de minimis extension, etc.

Posted by: Steven D. Schwinn | Jan 22, 2015 6:16:41 PM

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