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Today the Supreme Court granted cert in Rodriguez v. United States, a case on the duration of traffic stops. Heres the Question Presented from the cert petition:

This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are de minimis intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

I wrote a post on Rodriguez back in February that Ill reprint below in light of the grant:

Imagine a police officer pulls over a car for a routine traffic violation, such as speeding or driving with a broken taillight. During the stop, the officer develops a hunch that there may be drugs in the car. He contacts a local K-9 unit and requests a trained drug-sniffing dog; when the unit arrives, another officer will walk the dog around the car to see if it alerts to drugs inside. Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable. The officer cant delay the driver forever.

This raises a question of Fourth Amendment law that has led to a lot of lower court litigation: If the officer has no reasonable suspicion that drugs are in the car that is, he only has a hunch how long can the traffic stop be delayed before the dog arrives and checks out the car?

This might seem like a really technical question. But its actually pretty important. If courts say that the police cant extend the stop even one second to bring over the dogs, then the dogs will only be used when they happen to be right there or some reasonable suspicion exists specifically justifying their use. On the other hand, if the courts say that the police can extend the stop for a long time, then the police will be free to bring out the dogs at routine traffic stops whenever they like.

Lower courts have generally answered the question by adopting a de minimis doctrine. Officers can extend the stop and wait for the dogs for a de minimis amount of time. But exactly how long is that?

Just yesterday, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Rodriguez that seven to eight minutes is de minimis. On the other hand, the Supreme Court of Nevada held a few months ago in State v. Beckman that nine minutes is too long.

These are just lower-court decisions, of course, and there is room to argue that duration alone isnt the only criteria for whether a stop was too long.

Plus, the Supreme Court has been reluctant to announce arbitrary-sounding time limits on Fourth Amendment searches and seizures. Off the top of my head, the only time it has suggested such limits is County of Riverside v. McLaughlin, and even then it did so only because an earlier decision that did not suggest a specific time limit had caused significant chaos in the lower courts in that specific context.

Read the original here:
Volokh Conspiracy: Supreme Court takes case on duration of traffic stops

Ive blogged a few times about the Third Circuits litigation in United States v. Katzin, a case on the Fourth Amendment implications of installing a GPS device. Initially, a panel of the court held that installing a GPS device on a car requires a warrant and that the exclusionary rule applied because there was no binding precedent allowing the government to install the device. Next, DOJ moved for en banc rehearing of just the exclusionary rule holding, which the Third Circuit granted. That brings us to the new development: On Wednesday, the en banc Third Circuit ruled that the exclusionary rule does not apply.

Here are three thoughts on the new case.

1) The Third Circuit focuses on the overall culpability of the officer who conducted the search, relying on the broad reading of Davis and Herring. The key passage seems to be this:

The constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy. Given this panoply of authority, we cannot say that a reasonably well trained officer would have known that the search was illegal, id., nor that the agents acted with deliberate, reckless, or grossly negligent disregard for [Appellees] Fourth Amendment rights, Davis, 131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Thus, suppression is inappropriate because it would not result in deterrence appreciable enough to outweigh the significant social costs of suppressing reliable, probative evidence, upon which the Governments entire case against Appellees turns.

Ive been assuming that the debate over the broad vs. narrow reading of Davis was destined to be decided by the Supreme Court eventually. With that said, its interesting that all the circuits so far are reading the case so broadly so that no clear split has yet emerged. I personally find the broad reading of Davis to be very problematic, but I would guess that there are five votes on the current Court that would agree with that broad reading.

2) In this case, defense counsel conceded the relevance of the agent consulting with a prosecutor about the legality of the practice as part of the exclusionary rule calculus. See Slip Op at 34, n.13. Theres some precedential support for that, I recognize. At the same time, it strikes me as a really problematic rule. Think of the incentives it creates. First, agents have an incentive to ask the most aggressive prosecutor they know. Agents wont ask for legal advice from Cautious Cathy; instead theyll run it by Aggressive Andy. Second, the rule gives prosecutors an incentive to give out aggressive advice. If youre a prosecutor and agents ask for your legal advice, you will know that by approving a questionable practice, the mere fact of your approval becomes an argument against the exclusionary rule applying if you turn out to be wrong. The exclusionary rule becomes narrower as the prosecutors become more aggressive.

3) Notably, the court vacated the merits ruling that a warrant was required even though DOJ did not ask the court to revisit that issue.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

The rest is here:
Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule

Back in August, the Third Circuit handed down an unpublished opinion in United States v. Gomez (August 8, 2014), that appears to have rejected the mosaic theory of the Fourth Amendment, at least in the context of telephone metadata. I havent seen any coverage of the decision elsewhere, so I thought I would blog it.

In Gomez, the government obtained a pen register order to monitor the metadata for Gomezs telephone calls for about 5 weeks. Gomez argued that under the Jones concurrences, the prolonged surveillance was sufficient to constitute a Fourth Amendment search. The Third Circuit disagreed in an opinion by Judge Smith joined by Judges Vanaskie and Schwartz:

Gomez first argues that the DEAs prolonged warrantless use of a pen register and trap and trace device violated his privacy rights under the Fourth Amendment. We agree with the District Court that this argument is foreclosed by Smith [v. Maryland]. Gomez provided a third party in this case, Sprint with all the data that the DEA obtained through the use of the pen register and trap and trace device. In so doing, Gomez abandoned his privacy interest in this data because he assumed the risk that the information would be divulged to police. Smith, 442 U.S. at 745, 99 S.Ct. 2577. Although Justice Sotomayor has urged the Court to reconsider Smiths holding that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, United States v. Jones, U.S. , 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring), we remain bound by Smith until a majority of the Court endorses this view.

The Third Circuit then adds the following explanatory footnote:

In the proceedings below, Gomez conceded that his position was contrary to Smith, but cited Justice Sotomayors concurrence in Jones for the proposition that Smith is antiquated and must be reconsidered. J.A. 60. Gomez presents a different argument on appeal. Instead of urging us to overrule Smiths third party doctrine, Gomez contends that this doctrine has already been cabined by five Justices of the Supreme Courta number he reaches by combining Justice Sotomayors and Justice Alitos concurrences in Jones. Appellants Br. 27, 31. As Gomez did not raise this argument before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009).

In any event, we reject Gomezs contention that the concurrences in Jones cabined Smith. Justice Alitos concurrence did not explicitly seek to limit Smith, and indeed relied heavily on the fact that drivers of automobiles do not expect third parties to possess detailed, long-term data regarding their location. Jones, 132 S.Ct. at 964 (Alito, J., concurring). By contrast, cell phone users do expect service providers to possess detailed, long-term data regarding the numbers they dial because this information is necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743, 99 S.Ct. 2577. By disclosing this data, cell phone users, unlike drivers of automobiles, assume[ ] the risk that a third party will convey it to law enforcement. Id. at 744, 99 S.Ct. 2577. Therefore, we are not persuaded that the two concurrences in Jones have limited Smith to short-term call monitoring.

Off the top of my head, I think this is the first federal court of appeals opinion to directly address the important question of whether the mosaic theory modifies Smith v. Maryland. The opinion was not published and is therefore non-precedential. But given that this is likely to be an important issue when the D.C. Circuit reviews Klayman v. Obama on November 4th, I thought the Third Circuits opinion was worth noting.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is no. In this post, Ill explain the case and why I think the defense should prevail.

I. The Facts, and A Brief History of Brake-Light Law

The facts of the case are simple. A North Carolina police officer stopped a car for having a broken right rear brake light. The stop led to a consent search, and the search led to the discovery of drugs in the car. So far it sounds like a pretty routine Fourth Amendment traffic stop case. But heres the twist: If you look closely at thetext of North Carolinas traffic laws, its at best unclear whetheritprohibits driving with one broken brake light.

A little bit of history is helpful here. Decades ago, it was common for cars to come equipped with only one brake light. The early brake lights often had STOP written on them,and unsurprisinglythey were known as stop lamps. At the time, it was common for the traffic laws to require cars to have only one stop lamp.

Thats antiquated now, of course. But a lot of state laws still have a residual form of this. In particular, many state laws require one working stop lamp for antique cars but two such stop lampsfor more modern cars. To get a flavor of this common practice, see the laws of Florida, California, Texas, New York, Michigan, Tennessee, the District of Columbia, or Ohio.

North Carolinas traffic law is different. The key statutory provision requires that modern cars have a stop lamp but has no such requirement for pre-1956 cars.Heres the language:

No person shall sell or operate on the highways of the State any motor vehicle, motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.

Violation of this law is a misdemeanor criminal offense, see N.C.G.S.A. 20-176.

Why require only one stop lamp for more modern cars and none for older cars? I have no idea. Its hard to know what the legislature was thinking. A few other states in the southern U.S. have traffic codes that also require only one stop lamp, perhaps just as a historical relic. See Alabamas code, for example, which dates back to 1927. Georgia, West Virginia, and South Carolina have similar language but add the additional requirement that all original equipment has to be working properly, which as a practical matter requires multiple working brake lights. See, e.g., Georgia 40-8-26; W. Va. Code Ann. 17C-15-18(a)(1); State v. Jihad, 553 S.E.2d 249 (S.C 2001) (interpreting South Carolinas brake light law). North Carolinas law appears to be somewhat unique. It has a provision that the originally-equipped tail lights have to be working (that is, the red lights that go on when the front headlights or parking lights are on), but it does not appear to apply that same standard to brake lights.

Ok, back to the case. At trial, Heien argued that the North Carolina traffic law did not prohibit driving with one broken brake light so long as the other brake light was working. After all, with one brake light out and the other working, the car did have a functioning stop lamp. The North Carolina Court of Appeals agreed with Heiens reading of North Carolinas law. Under its decision, driving with one broken brake light is perfectly legal in North Carolina.

Read more:
Volokh Conspiracy: A few thoughts on Heien v. North Carolina

TIME U.S. Law Pet Owners Look to Muzzle Police Who Shoot Dogs Brittany Preston Bereaved owners argue that when police shoot dogs it a violates their Fourth Amendment rights

Correction appended, Sept. 26

Lexie, a Labrador mix, was barking in fear when the police arrived at her owners suburban Detroit house early in the morning last November. The officers, responding to a call about a dog roaming the area, arrived with dog-catching gear. Yet they didnt help the one-year-old dog, who had been left outside the house, according to a lawsuit filed in federal court: Instead, they pulled out their guns and shot Lexie eight times.

The only thing Im gonna do is shoot it anyway, the lawsuit quotes an officer saying. I do not like dogs.

Such a response, animal advocates say, is not uncommon among law enforcement officers in America who are often ill-equipped to deal with animals in the line of duty. And now bereaved owners like Brittany Preston, Lexies owner, are suing cities and police departments, expressing outrage at what they see as an abuse of power by police. Animal activists, meanwhile, are turning to state legislatures to combat the problem, with demands for better police training in dealing with pets.

There are no official tallies of dog killings by police, but media reports suggest there are, at minimum, dozens every year, and possibly many more. When it comes to Prestons dog, officials from the city of St. Clair Shores and the dog owner agree on little. City police say the dog attacked, prompting officers to open fire in self-defense. But the lawsuit filed by Preston cites police audio recordings to argue that the November 2013 shooting was premeditated, prompted by officers eager to kill a dog. Preston is suing the city for violating her Fourth Amendment right to protection from unreasonable search and seizure.

We want whatever it takes to make sure it doesnt happen again, said Christopher Olson, Prestons lawyer. Before this case I wasnt a dog shooting lawyer, but I am now.

St. Clair Shores defended the officers actions.

The animal was only put down after a decision was made that it was in the best interest of the residents, said city attorney Robert Ihrie, who is defending the city in the lawsuit. Sometimes police officers are in a position where they need to make very quick decisions for the protection of themselves and others.

The Fourth Amendment argument gained traction in 2005, when the San Jose chapter of the Hells Angels sued the city and the police department because officers had killed dogs during a gang raid in 1998. A federal appeals judge found that the Fourth Amendment forbids the killing of a persons dog when that destruction is unnecessary, and the Hells Angels ultimately won $1.8 million in damages. In addition to the St. Clair lawsuit, other lawsuits stemming from police shootings of dogs are being planned or filed in Idaho, California, and Nevada.

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Pet Owners Look to Muzzle Police Who Shoot Dogs