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Vol. 10, No. 2 | August 2015
Rodriguez v. United States (United States Supreme Court): Terry Stops May Not Be Extended to Accommodate a Canine Sniff
by Jack E. Call
Professor of Criminal Justice
In Illinois v. Caballes in 2005, the Supreme Court held that the police could walk a trained drug detection dog around a car that had been stopped constitutionally while the officer who stopped the car was running a license, registration, and warrant check on the stopped vehicle and its driver. Left unanswered was the question of whether the “walk-around” by the drug detection dog could have been done constitutionally after the officer had completed the traffic stop. In Rodriguez v. U.S., decided April 21, 2015, the Court held, 6-3, that officers may not conduct a “walk-around” by a drug detection dog after a traffic stop is completed.
Officer Struble, a K–9 officer, stopped Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After Struble attended to everything relating to the stop – including checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense – he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search discovered methamphetamine. Seven or eight minutes elapsed from the time Struble issued the written warning until the dog alerted. The entire seizure of Rodriguez – from the time he was stopped until he was arrested after the methamphetamine was found – lasted 29 minutes.
The Court’s opinion was written by Justice Ginsburg. Her rationale for the Court’s decision is that once a traffic stop has been completed – or reasonably should have been – the justification for the continued detention of the vehicle and its occupants no longer exists. The Court did not take issue with the officer’s checking the driver’s license of the driver, running a check for outstanding warrants, or inspecting the vehicle’s registration and proof of insurance. These actions were characterized as “ordinary inquiries incident to [the traffic] stop.” However, the use of the drug detection dog was related to an effort to detect evidence of criminal wrongdoing and was not related to the purpose of the traffic stop, i.e., to insure public safety on the highways.
At first glance, this may seem like a relatively inconsequential decision. However, it resolves a very important question and, like most Supreme Court decisions, raises other questions. What was at stake in this case is demonstrated by comments made in the two dissenting opinions written by Justices Thomas and Alito. Justice Thomas’ primary quarrel with the majority opinion is its failure to remain focused on the overarching requirement of the Fourth Amendment – that searches are only required to be reasonable. Justice Thomas indicates that “[a]pproximately 29 minutes passed from the time Officer Struble stopped Rodriguez until his narcotics-detection dog alerted to the presence of drugs. That amount of time is hardly out of the ordinary for a traffic stop by a single officer of a vehicle containing multiple occupants even when no dog sniff is involved.” (Emphasis added). There are probably a substantial number of motorists who would be taken aback by the notion that it is reasonable for an ordinary traffic stop to last 29 minutes. If Justice Thomas’ approach had found its way into a majority opinion, the police would have been given considerably more leeway in dealing with persons stopped for traffic offenses than they have been given under the Rodriguez decision.
Justice Alito’s dissenting opinion suggests that he also would be willing to give the police substantial discretion to prolong traffic stops in situations where the police want to conduct a “walk-around” by a drug detection dog. One of his primary objections to the majority opinion is that it places officers in this situation in potential danger. He notes that the majority’s approach prohibits the officer making the traffic stop from conducting the dog sniff after the traffic stop has concluded, but the majority would have permitted it if the officer had conducted the dog sniff while the warrant, registration, and license checks were being done. However, Alito believes this “would have entailed unnecessary risk.” One of the reasons Officer Struble delayed the dog sniff was so another officer could arrive to provide Struble some protection while the dog sniff was conducted. If there are indeed drugs in the vehicle, Alito argues, the occupants will realize they are in jeopardy of being arrested once the sniff is commenced, thereby increasing “the risk that the occupants of the vehicle will attempt to flee or perhaps even attack the officer.” Thus, the result of the majority’s approach, according to Justice Alito, is to force the officer making the traffic to choose between forgoing the dog sniff or conducting the dog sniff and placing himself in physical jeopardy.
Justice Alito’s description of the dilemma facing the officer may be accurate, but it seems to be based on a questionable premise. Justice Alito appears to assume that the officer making the stop with a drug detection dog in her car has a legitimate expectation that she will be able to conduct a dog sniff. However, the point of the majority opinion is that any such expectation is not legitimate. The majority’s rationale is that a traffic stop is a non-criminal matter that must be limited to the purpose of the stop. Once that purpose has been served, the basis for continuing to detain the person stopped has ended. What made the dog sniff in Caballes constitutional was that it constituted no further intrusion on privacy interests than the traffic stop itself because a) the traffic stop was not extended to accommodate the dog sniff and b) the dog sniff itself did not intrude upon any legitimate privacy expectations.
As indicated earlier, the majority’s holding in Rodriguez may seem very straightforward and unremarkable. However, if the approach espoused by Justices Thomas and Alito (joined by Justice Kennedy) had prevailed, the nature of police traffic stops would be quite different.
At least two obvious questions are raised by the decision in this case. The first concerns how, in the aftermath of Rodriguez, the police may validly obtain consent to search a car pursuant to a lawful traffic stop. One course of action that a police officer could pursue is to ask for consent to search before completing the traffic stop, so as to avoid the argument that the traffic stop was prolonged for a purpose unrelated to the stop. The problem with this strategy is that the traffic stop is not completed until a citation or a warning has been issued or the person stopped is informed that no ticket or warning will be issued. However, if the consent to search is obtained prior to that time, the person giving the consent may well feel that the officer’s decision as to whether to issue a citation may turn on whether the consent is given. If so, this would seem to make the consent to search involuntary.
On the other hand, if the officer waits until after the traffic stop has been completed (either through issuance of a citation or warning or informing the person stopped that neither a citation or a warning is going to be issued), then the officer seems to run afoul of this decision in Rodriguez. The officer appears to have prolonged the traffic stop for a purpose unrelated to the traffic stop. The solution seems to be for the officer to tell the person both that the traffic stop has been completed and that the person is free to go. The officer could then ask for consent to search, and the consent would logically be viewed as voluntary.
The only problem with this analysis is that it seems to contradict the Court’s decision in a 1996 case, Ohio v. Robinette. In Robinette, a police officer had made a lawful traffic stop of Robinette. After issuing a verbal warning to Robinette, the officer asked him if he would consent to a search of his car. Robinette agreed, and the search turned up a small amount of illegal drugs. In concluding that the consent to search by Robinette was voluntary, the Supreme Court held, 8-1, that the consent given by Robinette was not involuntary just because the officer failed to inform Robinette after issuing the verbal warning that he was free to go.
Because the Court focused only on the question of whether the officer was required to inform Robinette that he was free to go, the Court did not directly address the question of whether the detention of Robinette that was justified by the officer’s observation of a traffic law violation could be constitutionally extended long enough to ask Robinette for consent to search. However, as one leading textbook on criminal procedure indicates, the “disposition of the case suggests that a traffic violation authorizes some seizure beyond that necessary to deal with the [traffic] violation.”
Curiously, the four opinions written in the Rodriguez case (the majority opinion and three dissenting opinions) make only one reference to the Robinette case. That reference is found in Justice Thomas’ dissenting opinion, and it refers to Robinette only to support a statement that reasonableness under the 4th Amendment is assessed on the basis of the totality of the circumstances. None of the Justices address the issue of whether the opinion in Rodriguez is inconsistent with its opinion in Robinette. Thus, this is clearly a question that needs to be clarified by the Court in the future.
The second question arising from Rodriguez is really more of a point of clarification. Rodriguez involved a traffic stop. While the Court has analogized traffic stops to Terry stops, they are not precisely the same. How would things have been different if the officer in Rodriguez had stopped him, not for a traffic infraction, but because the officer had reasonable suspicion to think Rodriguez had committed or was committing a crime, such as drug possession? Presumably asking for consent to search the car would be viewed much differently in this situation. What made the request by the officer for consent to search unconstitutional in Rodriguez is that it came after the justification for the original stop (the traffic stop) had ended. In the suspicion-of-drug-possession scenario, a request for consent to search clearly falls within the purpose of the stop itself and should be viewed as entirely appropriate.
For persons who believe law enforcement officers should be given extensive latitude to ferret out criminal activity, Rodriguez will no doubt be viewed as an undesirable limitation on police discretion. However, for those who are concerned about the extensive latitude the police have already been given by the Supreme Court to make pretext arrests, Rodriguez will be seen as a much-needed counterbalance to the potential for traffic stops being conducted as a pretext to ask for consent to search vehicles.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.