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April 21, 2015

By 6-3 vote, SCOTUS finds Fourth Amendment violation from stop at start of federal drug prosecution

The US Supreme Court handed down a notable Fourth Amendment ruling this morning in Rodriguez v. US, No. 13-9972 (S. Ct. April 21, 2015) (available here).  Though not a sentencing case, I cannot help but wonder if some votes on the case were somewhat influenced by the federal drug war setting that raised the import and stakes for the Fourth Amendment issue brought to the Justices.  Here, for starters, is the start of this Court's opinion per Justice Ginsburg:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitu­tion’s shield against unreasonable seizures.  A seizure justified only by a police-observed traffic violation, there­ fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407.  The Court so recog­nized in Caballes, and we adhere to the line drawn in that decision.

Notably, this federal criminal case started with a seemingly routine traffic stop based on a Nebraska driver veering to avoid a pothole and ended with a federal drug prosecution requiring the defendant to serve a mandatory minimum 5-year federal prison term for possessing 50 or more grams of meth with intent to distribute. I cannot help but think these contextual realities played some (perhaps unconscious) role in a majority of the Justices concluding that the extension of the traffic stop was unconstitutional with this kind of statement: "Highway and officer safety are interests different in kind from the Government’s endeavor to de­tect crime in general or drug trafficking in particular."

Here is how the primary dissent by Justice Thomas in Rodriguez gets started:

Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” Illinois v. Caballes, 543 U. S. 405, 408 (2005).  The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes.  Because the stop was reasonably executed, no Fourth Amendment violation occurred.  The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.  It was also unnecessary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff.  I respectfully dissent.

Here is how a distinct dissent by Justice Alito in Rodriguez gets started:

This is an unnecessary, impractical, and arbitrary decision.  It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs.  In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.

April 21, 2015 at 10:24 AM | Permalink


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I think the broad reach of Whren and Caballes has led a few justices to be wary of a totally open-ended rule regarding traffic stops & some limits are deemed appropriate.

Posted by: Joe | Apr 21, 2015 10:35:24 AM

Swerving to avoid a pothole is not a summary offense, nor is the suspicious weaving of the car. Usually, the officer smells alcohol, or hears slurred speech. In their absence the entire stop must stop. There should have been no further discussion or even checking of credentials once that explanation was confirmed. Swerving is a sign of impaired driving. In this case, it is a sign of alert and good driving.

That being said, the Justices in the majority should have set out the time span permissible under Fourth amendment jurisprudence, so the officers could start a stop watch. The majority just refused. OK, they refused to specify. Then what is the average duration of a traffic stop for swerving? In the absence of evidence of drunk driving, it has to be a minute or two.

The dog has smell a million times stronger than man. It can be trained to detect cancer of the prostate, an organ deep inside the body with a high degree of accuracy. A hound dog followed the smell of a kidnapping victim inside a car trunk for 5 miles down a 60 mph highway. So the meth molecules were in the open, open to the public, like leaving your trash out on the street, with no expectation of continued possession.

That being said, the exclusionary rule punishes the public by freeing a criminal. If the officer violates the Fourth Amendment, the officer should be punished by a fine, reprimand, and mandated additional training. Denial of the evidence is yet another lawyer fictitious practice, as are so many.

I strongly urge law schools to provide a course in The Rules of the Road, perhaps in 2L. Those are the criminal laws almost every adult is likely to violate, and to cause an encounter with the criminal justice system. For example, I can guarantee every member of the Supreme Court has speeded enough to get arrested. It is a field apart, where you will never see anything you learned in school, and nothing they do will you have learned in school.

Posted by: Supremacy Claus | Apr 21, 2015 1:41:47 PM

Yet another SCOTUS reversal for the Eighth Circuit in a criminal case!

Posted by: Todd | Apr 21, 2015 3:01:53 PM

In theory this ruling is all about limiting the ability of the police to use traffic violations as pretexts for other types of investigations. But Alito and Thomas lay out the game plan--it will just become a discussion of what is "reasonable" and courts are going to find any old thing reasonable.

Incoming true story.

Last summer I was on vaction and decided to go for a hike in the forest. The day was much hotter than I thought so when I got back to my car after the hike I put all the windows down and opened up the doors to let the heat out. Not more than five minutes later some armed rangers drive past, stop, and then come walking back wanting to know what was wrong. Geninuely surpised I said nothing and they told me a car parked well off the road with all four doors open was "suspicious". It was 90 degrees out!

Thankfully the encounter ended well in the sense I wasn't shot or arrested. But I am deeply dubious about what counts as "reasonable suspicion" these days and the willingness of courts to police it. We shall see.

Posted by: Daniel | Apr 21, 2015 5:56:44 PM

I would have held you 3 hours until the sniffer dogs could reach the hiking location, just in case you were one of those hippies smoking dope, airing out your car. Was it one of these?


Posted by: Supremacy Claus | Apr 21, 2015 7:35:21 PM

Lawyers: Your duty is to raise the correct objections at trial. In this case the objection is: Objection, hearsay of the dog. Your honor the dog spoke to the cop and yet his search is based upon the statement of the dog. The dog might have said: I want a dog biscuit. The cop wants us to believe that the dog said that there was pot in the trunk of the car. There is no exception in the Federal Rules of Evidence to Hearsay of the Dog. Until there is, the statement of the cop, repeating what the dog said to him is inadmissible and therefore the motion to suppress the evidence is sustained.

Posted by: BarkinDog | Apr 22, 2015 1:21:40 AM

Justice Souter spoke about the possibility that the dog can be wrong in Illinois v. Caballes, but he (along with Ginsburg) was in dissent. The last comment may or may not be joking, but has a point. Also, the defense attorney should have some ability to show if there was a convincing argument that the dog was untrustworthy. See, e.g., Florida v. Harris.

Posted by: Joe | Apr 22, 2015 9:31:24 AM

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