Guest Blog: Leslie Shoebotham, Oral Argument in Rodriguez v. United States: Bright-Line Rule or Determining Reasonableness Under a Totality Analysis?

“You can’t hold a person any – any measurable time that would allow [police] to get the dog… [To do so means that] the Fourth Amendment becomes a useless piece of paper.”

As this comment from Justice Sotomayor—made during questioning in Rodriguez v. United States—reflects, the Fourth Amendment has limits beyond which it ought not be stretched to accommodate police investigation. Rodriguez asks the Court to consider imposing limitations on use of the canine sniff investigative technique—not based on privacy or reliability grounds—but instead on the lawfulness of the detention that made it possible for police to perform the canine sniff in the first place. Based upon the Justices’ questions at oral argument (which is admittedly no more than a rough barometer of the case’s eventual outcome), several of the Justices expressed clear disagreement with expanding Illinois v. Caballes to allow canine sniffs after a traffic stop has been concluded.

Rodriguez in a Nutshell

As discussed in my pre-oral argument post on Hamilton and Griffin on, the issue in Rodriguez is whether police violate the Fourth Amendment by performing a canine drug-detection sniff after the completion of a traffic stop—i.e., after the traffic ticket has been issued. In Rodriguez, police stopped a truck after it briefly veered onto the shoulder of Nebraska’s Highway 275. The police officer, who was working alone but had a drug-detection canine with him in the patrol car, ran records checks on both the driver (Mr. Rodriguez) and passenger. Ultimately, the officer decided to issue Rodriguez a warning ticket for the traffic violation. However, because the officer had a “hunch” that Rodriguez might be transporting drugs in his vehicle, the officer radioed for backup because he wanted to perform a canine sniff of the vehicle. The officer radioed for backup immediately prior to issuing Rodriguez the ticket.

The problem is that the officer had nothing more than a “hunch” that Rodriguez was transporting drugs in his vehicle—not probable cause or reasonable suspicion. After handing the warning ticket to Rodriguez, the officer then asked Rodriguez to consent to a canine sniff of his vehicle. When Rodriguez declined, it meant that the eventual canine sniff—performed after the backup officer’s arrival—occurred during a period of suspicionless (for Fourth Amendment purposes) post-ticket detention. During the canine sniff, the detection dog alerted to drugs in Rodriguez’s vehicle. A physical search of the vehicle turned up the methamphetamine that formed the basis of Rodriguez’s suppression motion. The time between the issuance of Rodriguez’s warning ticket and the detection dog’s alert was seven to eight minutes.

Both the district court and the Eighth Circuit determined that the seven- to eight-minute delay in performing the canine sniff was a “de minimis” intrusion on Rodriguez’s personal liberty; an intrusion that was of no constitutional significance. Extending the traffic stop by only seven to eight minutes meant, to those courts, that Rodriguez’s detention was not unreasonably prolonged. On October 2, 2014, the Supreme Court granted certiorari.

Rodriguez Argues For a Bright-Line Rule

During Petitioner Rodriguez’s turn at the podium, the Court wrestled with the scope of a “stop.” What is included in a traffic stop? When does it begin? When does it end?

Mr. Rodriguez’s attorney was open to conceding certain positions. For instance, had the canine sniff in this case occurred before “the completion of the traffic stop and the ticket,” Petitioner agreed that the sniff would have been lawful. Further, Petitioner agreed that a police officer who lawfully stops a vehicle is allowed to make some non-traffic offense related inquiries of the detained driver and passengers. To Justice Sotomayor’s question, Petitioner agreed that routine traffic stops properly include some investigation and inquiry that was not strictly necessary to issuing a traffic ticket—i.e., a records check on both the driver and the vehicle, as well as identification and warrant checks on the vehicle’s passengers. However, Petitioner drew a bright line at the end of the “stop,” arguing that the Fourth Amendment prohibited any further actions by police during a period of suspicionless detention, even to accommodate these otherwise “routine” tasks.

Still, though, the Court drilled down on precisely what police conduct establishes the “end” of a traffic stop? Petitioner argued that a traffic stop ends at “the formal handing of the ticket . . . .” At that point in time, Petitioner argued, “the justification for the stop and the purpose is complete, the ticket is done, whether it is a warning, whether it is handed to them, at some point in time the ticket is done and that’s the [end] of the stop.” In other words, police questioning or investigation that is constitutionally permissible before a traffic stop has concluded would no longer be permitted after the traffic stop has ended

However, some Justices seemed to believe that Petitioner’s before-and-after argument begged the question: What if dog sniffs were simply added to all traffic stops, but were performed before the traffic ticket was issued? Wouldn’t every police officer—aside from “the uninformed or incompetent,” as Justice Alito put it—simply withhold the ticket until the canine sniff had been done? In other words, the Supreme Court tested Petitioner’s bright-line argument for a “before-and-after” rule by asking why police could not simply revise their traffic stop procedures to delay issuance of a ticket until after the canine sniff had been performed. In response, Petitioner amended his argument slightly, contending that it was not necessary for police to actually deliver the traffic ticket for the traffic stop to end. Instead, the stop ends “when the mission has been accomplished”—i.e., when police, working in a diligent manner, have completed the tasks related to the traffic offense.

The United States Argues for a Reasonableness Determination Based on the Overall Duration of the Traffic Stop and Sniff

The Supreme Court peppered the United States’ attorney with a different set of questions, focusing on reasonableness instead of a bright-line rule. Justice Sotomayor expressed significant—and justifiable—concerns about the scope of the government’s view of “reasonableness.” Respondent United States explained that “reasonableness” is a “length of time . . . tethered to the traffic violation purpose of the stop.” Respondent’s attorney explained that reasonableness was not a specific de minimis amount of time—perhaps distancing the government from the Eighth Circuit’s bright-line “ten minutes or less” rule. Instead, the Respondent’s counsel argued that “reasonableness” called for an objective inquiry tied to the facts of a stop and an officer’s diligence in completing the mission of the stop.

The United States’ view of “reasonableness” came across as perhaps a little too squishy for the Court. For instance, Justice Scalia—to the gallery’s great amusement—insisted that he wanted to know the “minute criteria” for a reasonable traffic stop so he could “complain when it’s longer.” In all seriousness, however, Justice Scalia cut to the quick of the reasonableness issue when he asked, “Don’t you have to pick a minute sooner or later to decide these cases?”

But it was really Justice Breyer who engaged in the most debate with Respondent’s counsel. Justice Breyer rightfully wondered whether the answer to the question in this case had not already been addressed in two prior cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Arizona v. Johnson, 555 U.S. 323 (2009). Should reasonableness be determined by reference to “the time necessary to effectuate the purpose of the stop” or “the time that is reasonably required to complete the mission,” with “mission” defined as “giving . . . a traffic ticket”? In either event, stated Justice Breyer, the government “cannot call in the dogs” once the stop is over. In response, the government offered that the difference between the “effectuate the stop” and “complete the mission” language is a distinction without a difference. The intrusion—i.e., the length of the traffic stop—is the same regardless of whether the canine sniff is performed before or after the ticket has been issued.

Yet, some Justices seemed to wonder why the canine sniff was being included in the temporal calculus at all. Here, the government conceded that a canine drug-detection sniff is not an ordinary incident of a traffic stop—i.e., a sniff is not routine. A dog sniff is, however, permissible. The questioning Justices pressed this issue, investigating whether, in the government’s view, a greater prevalence of drug detection canines—one in every squad car—might make canine sniffs “routine”.

In response, the government rebranded its “routine” argument, contending that “once there’s probable cause to perform a set of legitimate investigative inquiries . . . then it ought to be constitutionally reasonable to do that.” For the government, whether a practice is routine was determined not by the frequency with which the investigative tool is used, but instead by whether it is constitutionally permissible to utilize that tool when it is reasonable to do so. And it should not matter, argued the government, that the dog sniff prolonged the traffic stop by a short, incremental amount of time. A prolongation of the traffic stop would be reasonable if the “ultimate duration” of the stop is not extended. In other words, the government argued that the sum of the overall stop (ticket process plus canine sniff, regardless of which of those two procedures takes place first) should be the barometer on which reasonableness is gauged.

Justice Sotomayor also expressed concern that canine drug-detection sniffs had come to be viewed as a police “entitlement.” While Caballes upheld a suspicionless canine sniff during a lawful traffic stop, the United States’ argument pushed the doctrine too far, in Justice Sotomayor’s view, by allowing a suspicionless canine sniff after a stop was over—i.e., during a suspicionless (post-ticket) detention.

From a practical perspective, Justice Sotomayor seemed concerned that, without Fourth Amendment constraints, canine sniffs would become a routine incident of every traffic stop. For now, police budgetary concerns appear to be the only limitation on using canine sniffs in conjunction with every traffic stop. How many detection dogs can a town or municipality afford? Those budgetary concerns are substantially eased if police are permitted to perform canine sniffs of stopped vehicles after a stop is concluded—so long as the sniff takes place within a “reasonable” period of time. Far fewer drug-detection dogs would be required in order to sniff all or most of the vehicles stopped for traffic offenses. Justice Sotomayor expressed similar concerns in her concurring opinion in United States v. Jones, the Court’s recent GPS decision. See United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) (describing “limited police resources and community hostility” as factors that reduce the risk a police investigative practice can become abusive).

Will the Court Clarify the Caveat in Caballes?

Without reading tea leaves, it appeared that Justice Breyer’s position might have been the most attractive to a majority of the Court. In revisiting Caballes, Justice Breyer articulated two rules as arising from that decision—rules that he clearly believed produced a specific outcome on the Rodriguez facts. Rule 1: Caballes held that the Fourth Amendment authorizes police to perform a canine sniff of a vehicle during a lawful traffic stop, even if no suspicion exists to believe that the vehicle is being used for drug-related activities. Rule 2: Performing the canine sniff cannot prolong the traffic stop.

The fundamental disagreement between Justice Breyer and the United States’ interpretation of Caballes turned on Caballes’ use of the phrase “unreasonably prolong[].” Justice Breyer suggested that Caballes was referencing police foot-dragging in performing the tasks associated with the traffic stop in order to allow a canine unit time to get to the scene. He clearly disagreed with the United States’ view of Caballes—that the decision offered a Fourth Amendment basis to extend a traffic stop for a reasonable period of time. In other words, Justice Breyer saw Caballes’ reasonableness language as a clear limitation on police authority to extend a stop, while the government viewed it as an opportunity for reasonable expansions.

Based upon Justice Breyer’s articulation of Caballes’ two rules, the canine sniff in Rodriguez violated the Fourth Amendment because it did not take place during the course of the traffic stop. Justice Breyer openly acknowledged that this approach, by necessity, would result in some anomalies. In other words, there could be traffic stops in which the officer might wish to perform a canine sniff at the end of the traffic stop, which would be impermissible; while in other circumstances the officer could perform a canine sniff at the beginning of the traffic stop, which would be allowed.

At the end of the day, the Court did not seem inclined to grant Petitioner a simple bright-line rule forbidding any and all stop-related activities at the moment a traffic ticket was issued. It would be too easy for police to manipulate such a rule by simply revising traffic stop procedures to put the sniff before the ticket—the horse before the cart. At the same time, the Court was not impressed with the government’s argument diminishing the seriousness of a post-traffic stop detention. As Chief Justice Roberts humorously quipped, “It’s only a violation of the Fourth Amendment for two minutes, right?”


Photo Credit: By U.S. Navy photo by Mass Communication Specialist 2nd Class Maebel Tinoko [Public domain], via Wikimedia Commons