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License, registration, and dog sniff, please? After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal governments position in Rodriguez v. United States would lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want. Assistant to the Solicitor General Ginger Anders responded that I dont think thats how we envision things, but she then suggested that only the duration of a routine traffic stop under the circumstances defines the Fourth Amendments reasonable limit. This did not answer the question that Justice Anthony Kennedy asked early on: how do you define the traffic stop? But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguezs attorney, Shannon OConnor the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguezs car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower courts finding that there was no reasonable suspicion for the dog-sniff detention, but it ruled that a de minimis delay to conduct a dog sniff is okay. Since the Courts 2005 ruling in Caballes that a dog sniff conducted simultaneously with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesdays argument. First, a dog sniff of a car stopped for a traffic violation is extraneous to the purpose of that is, not an ordinary incident of a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the mission of the traffic stop have been routinely upheld, starting with the standard opening license and registration, please and extending, as in Rodriguezs case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions part of the mission and the dog sniff is not? But Anders wisely conceded that she was not arguing that a dog sniff should be considered an ordinary incident of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Courts 2000 decision ruling that routine drug checkpoints employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during OConnors argument(to laughter) that people have told me what happens when youre stopped. Justice Sonia Sotomayor later began Anders argument by saying and Chief, Ive been stopped, to which Anders quickly responded, so have I. The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, our experience on stops comes from, unfortunately, being the stoppee.)

A second point that appears clear from yesterdays argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment search. Justice Sotomayor appeared to raise this fundamental question briefly is that really what the Fourth Amendment should permit? but then quickly suggested that the Court should cabin it to Caballess simultaneous with writing the ticket holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of search that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices the Chief Justice and Justices Scalia Kagan in particular appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing that Caballes gives you extra leeway to detain people . I think thats just not right. Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether [i]ts only a violation of the Fourth Amendment for two minutes, right? And Justice Scalia later interjected, apparently along the same rhetorical line, it can prolong it a little bit.

At one point, Justice Breyer began a question for Anders with the announcement that I have a great idea. Reading this, I initially imagined everyone was groaning but then Justice Breyers idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop cannot last longer than is necessary to effectuate the purpose of the stop, or that a stop cannot be unnecessarily prolonged. He explained that these were not new ideas what an original idea I had, he noted with irony and that after we cite these two cases , [we] reverse. QED, goodbye. And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although OConnor urged the Court to decide that question itself for judicial economy, no Justice seemed likely to agree.

One final point, about Terry v. Ohio

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Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

The Making Of The Twenty Fourth Amendment Part 6
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Prior decisions of the Supreme Court addressing the constitutionality of the use of narcotics-sniffing dogs versus other law enforcement techniques have been on a theoretical collision course for years. On Wednesday, the Court will hear argument in Rodriguez v. United States and consider aspects of the issue once again: does the Fourth Amendment restrict the use of drug-sniffing dogs by the police at a roadside traffic stop, when the officer has finished issuing any citation and the stop is prolonged for a few minutes solely to conduct the dog sniff?

The nuances of simple facts

As in many Fourth Amendment cases, although the facts in Rodriguez are relatively simple they raise difficult theoretical questions which often turn on nuances about the details. One evening shortly after midnight, a car being driven by Dennys Rodriguez and carrying passenger Scott Pollman was stopped by Officer Morgan Struble. Struble had observed the car drift slowly onto the shoulder of a highway and then jerk suddenly back onto the road this was concededly probable cause to believe that Nebraska traffic statutes had been violated. Coincidentally, Officer Struble was a canine officer, and he had his drug-sniffing dog with him in his patrol car.

Upon questioning, Rodriguez told Officer Struble that he had swerved to avoid a pothole; the officer found that implausible. The officer was also suspicious of the overwhelming odor of air freshener; and he thought Pollman was unusually nervous for a passenger. When the officer asked Rodriguez to come sit in the patrol car during a records check, Rodriguez asked if he was required to do so. Upon being told that he was not, Rodriguez stayed in his own car.

When the records check came back negative, the officer went back to Rodriguezs car and spoke with Pollman, a conversation that the officer later said he also found suspicious. When the officer returned to his car, this time to run a records check on Pollman, he called for a second officer to come to the scene: Officer Straube had apparently decided to conduct a dog sniff and wanted another officer as back up for safety reasons.

Officer Struble then went back to Rodriguezs car, returned all documents to both men, and issued Rodriguez a written warning. At this point the stop of the car for traffic reasons appears to have been over. Officer Struble then asked for permission to walk his dog around the car. When Rodriguez refused, Officer Struble ordered him out of the car. This also concededly appears to be a moment of Fourth Amendment detention. They waited for the second officer, and when that officer arrived the dog sniff was conducted. The dog alerted within a few seconds. A search of the car yielded a bag of methamphetamine and the case went federal. Undisputedly, about seven or eight minutes elapsed from when Officer Struble gave Rodriguez the written warning until the dog alerted.

The federal magistrate found that the facts did not add up to reasonable suspicion once the traffic stop was over. Nevertheless, he recommended against suppression because the delay to conduct the dog sniff was a de minimis intrusion under Eighth Circuit precedent. The federal district court agreed, Rodriguez then pled guilty conditionally, and on appeal the Eighth Circuit affirmed.

Thus the question whether the Fourth Amendment permits an eight-minute detention, after a valid traffic stop has been completed, to conduct a dog sniff, seems clearly presented. More generally, the question whether (and for how long) a traffic stop may be prolonged, for reasons unrelated to the traffic violation itself, has divided lower courts. Note however, that the question in Rodriguez is premised on the assumption that the officer on the facts of this case did not have reasonable suspicion regarding narcotics. In addition to arguing that the dog-sniff detention was reasonable under the Fourth Amendment, the United States also argues that the Court could alternatively find that there was, as a matter of law, reasonable suspicion here. If the Court were to accept that view, then the detention for dog sniff without suspicion question would presumably be moot. But given the views of the trial judges, this alternative seems unlikely (although it could be open if there were a reversal for Rodriguez and remand).

The constitutional collision course

Heres a brief sketch of the constitutional debate regarding dog sniffs. The Fourth Amendment concept of a search is a constitutional trigger for inquiring into further requirements (probable cause, reasonable suspicion, possibly a search warrant, or some recognized exception). Absent a search (or seizure), officers are not restricted by the Fourth Amendment at all. Thus if a dog sniff is not a search, then there are no Fourth Amendment constraints on officers employing them (although this still leaves the question of the length of the detention here).

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Argument preview: Dog sniffs and traffic stops once more to the Fourth Amendment well

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an update for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isnt ready for prime time. First, its a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, its a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually arent likely to be changes at all. Theyre drafted in odd ways that probably miss their intended targets.

Heres some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Masons original Virginia Declaration of Rights. Heres the text:

That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginias history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials cant go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginias 1776 search and seizure provision are substantially the same as those contained in the Fourth Amendment. Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But its an option, not a requirement, and so far Virginias constitution hasnt gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Masons 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A persons disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, its somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons (C&F) offer an endorsement of the proposal that gives a relatively detailed explanation of it. Its the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Lets start at the beginning with the first sentence:

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Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over

PS4 GTA5 Team Deathmatch Fourth Amendment
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