United States v. Hayes, 2023 WL 2542654 (10thCir. 2023)
Everybody knows its okay to pick up food after it has been dropped on the floor and exposed to germs and methylethylbadstuff as long as its picked up within five seconds. I read it on the Internet.
Once upon a time, Jillian Clarke, who was a student at the Chicago High School for Agricultural Sciences, noted that the five-second rule dates back to the time of Genghis Khan, who first determined how long it was safe for food to remain on a floor when dropped there. Ms. Clarke investigated thescientific validity of the five-second ruleduring her apprenticeship in Hans Blascheks University of Illinois laboratory. A British scientist and germ expert, Professor Anthony Hilton of Aston University, also said it is so. Thus, one can rely on a high school student, a British professor who probably has a cool accent and the ancient founder of the Mongol empire as the authority for the five-second rule.
But does the five-second rule apply toextending a traffic stop to permit a dog sniff?
Neoal Hayes was stopped in a wall stop by officers cooperating with Drug Enforcement Agency agents. The timing of the events is important: Watch for the five-second mark.
The first officer told Hayes to exit the car and turn and face the car, give me your hands. As the officer handcuffed Hayes at the rear of the vehicle, he told Hayes he was just checking for weapons. Hayes was a large man wearing long pants and a hooded winter coat.
While another officer watched Hayes passenger, a drug detector dog handler returned to her patrol car to retrieve her dog. When, seconds later, she and her detector dog approached the back of the vehicle, the first officer moved Hayes three steps away from the vehicle. The officer adjusted Hayess handcuffs at the four-minute, 33-second mark on the body camera recording. The officer told Hayes at four minutes, 36 seconds he was not under arrest. As the dog team moved counterclockwise around the vehicle and appeared at the left front corner, the first officer looked to his left, toward the handler and dog. At four minutes, 41 seconds, the dog gave a positive alert to the odor of controlled substances.
A search of the vehicle revealed 2,505 grams of methamphetamine and 10 grams of heroin inside a duffel bag found behind the drivers seat. Inside a backpack, also located behind the drivers seat, officers retrieved a small safe containing methamphetamine, heroin, cocaine, Xanax, marijuana, a digital scale, packaging material and a loaded handgun. Hayes entered a conditional guilty plea to one count of possession with intent to distribute controlled substances and one count of possession of a firearm in furtherance of a drug trafficking crime. Hayes was sentenced to 15 years imprisonment.
As part of his plea agreement, Hayes reserved the right to appeal the trial courts denial of his motion to suppress evidence of the drugs and firearm. Hayes argued the officer unreasonablyprolonged the traffic stopto pursue an investigation into drug trafficking unrelated to the original purpose of the stop. He claimed the Rodriguezissue thus turns on the legal and factual significance of the five seconds between 4:36 and 4:41 on the body camera video (i.e., the time between the officers advisement that Hayes is being detained, and the dog alert, which occurs five seconds later). Hayes was relying on the rule ofRodriguez v. United States(575 U.S. 348 (2015)), that a stop may last no longer than is necessary to effectuate the initial purpose of the stopAuthority for the seizure thus ends when tasks tied to the traffic infraction are or reasonably should have been completed.
The court issued aper curiamdecision, meaning all three appellate judges agreed on the outcome. The short decision merely states that the judges conclude the detaining officer did not violate Hayess Fourth Amendment rights in this case. Two judges wrote individual opinions. One opined the officers had reasonable suspicion to detain Hayes and investigate drug trafficking, therefore the traffic stop length was not an issue. Another judge stated that the Hayes case is a good example of why, in adjudicating thereasonableness of a seizure, we should avoid drawing bright lines and placing rigid time limitations on law enforcement. This is because reasonableness rather than efficiency is the touchstone of the Fourth Amendment.
InRodriguez, the Supreme Court considered a seven-to-eight-minute delay, contrasted with the alleged five-second delay in this case. The rule fromRodriguezremains valid: A stop for a traffic violation may take the time necessary to determine whether to issue a traffic ticket and check the drivers license, determining whether there are outstanding warrants against the driver, and inspecting the automobiles registration and proof of insurance. Extending the stopbeyond that timerequires an independent reason to further detain the driver.
Now, thats not to say the five-second rule applies to traffic detention extensions. The takeaway fromUnited States v. Hayes? Courts may be open to some truly minimal, negligibly burdensome delay and may acknowledge thatRodriguezdoes not prohibit all conduct that in any way slows the officer from completing the stop as fast as humanly possible in the name of efficiency.
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