Dog Sniff During Traffic Stop Held Unconstitutional

by | Jun 6, 2015

The following story is one I wrote, which was originally published in the April 2015 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association

Sit! Stay! Dog Sniff During Routine Traffic Stop Held Unconstitutional.

Brad V. Shuttleworth, Esq. on 4/22/2015

“Well, we’ll see how smart you are when the K-9 comes.”1 If a dog sniff prolongs a traffic stop beyond the time reasonably required to complete the mission of investigating a traffic violation, it violates the Fourth Amendment’s prohibition against unreasonable searches and seizures.On April 21, 2015, the United States Supreme Court, in a 6-3 decision, ruled in Rodriguez v. United States, 575 U.S. _ (Apr. 21, 2014), that there is a Fourth Amendment violation when, during a traffic stop justified only by a police-observed traffic violation, the police prolong the traffic stop beyond the time reasonably required to handle the matter for which the stop was made. This case involved a dog sniff conducted after the completion of a traffic stop. The majority opinion was authored by Justice Ruth Bader Ginsburg.

In Rodriguez, a K-9 police officer saw Rodriguez commit a minor traffic violation by slowly veering his vehicle onto the shoulder of a highway for one or two seconds and then jerking it back onto the road. Because of this, the officer pulled him over. There was a passenger in the vehicle. The officer approached the vehicle on the passenger side, asked Rodriguez why he had driven onto the shoulder. Rodriguez responded that he was avoiding a pothole. The officer returned to his patrol vehicle and ran a records check on Rodriguez. The officer then asked the passenger for his driver’s license and began to question him about where they were coming from and where they were going. The officer then returned to his patrol vehicle, where he ran a records check on the passenger, and called for a second officer. The officer then began writing a warning ticket for Rodriguez for driving on the shoulder of the road.

The officer returned to Rodriguez’s vehicle a third time to issue a warning, and within about 21 or 22 minutes after the initial stop, the officer had finished explaining the warning to Rodriguez, and had given the two back their documents, along with the written warning. The investigation for the traffic stop was concluded.

However, despite the justification for the traffic stop being out of the way, the officer did not consider Rodriguez free to leave. The officer asked for permission to walk his drug-sniffing dog around Rodriguez’s vehicle. Rodriguez declined the request. The officer then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol vehicle to wait for the other officer, a deputy sheriff, to arrive. Rodriguez did so, and the deputy arrived about five minutes after the initial stop had concluded. At that time, the officer led his dog twice around the vehicle, and the dog was alerted to the presence of drugs halfway through the second pass. “All told, seven or eight minutes had elapsed from the time Struble issued the written warning until the dog indicated the presence of drugs.” *3 (slip op.). Then, a search recovered a large bag of methamphetamine.

After being charged federally for possessing with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§841(a)(1) and (b)(1), Rodriguez moved to suppress the drugs. He lost the suppression motion in federal district court, and the court of appeals affirmed the district court’s ruling. The U.S. Supreme Court granted certiorari “to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” *4 (slip op.).

The Court began by noting that seizures for traffic violations are akin to Terry stops, justifying a relatively brief encounter for investigation, the duration of which is determined by the “mission,” i.e., “to address the traffic violation that warranted the stop . . . and attend to related safety concerns.” *5 (slip op.), citing Illinois v. Caballes, 543 U.S. 405 (2005). Traffic stops may last no longer than is necessary to address the traffic violation and safety concerns, and authority for the seizure ends when tasks related to the traffic infraction are, or reasonably should have been, complete. Id. Police are required to investigate diligently. Id. CitingCaballes and Arizona v. Johnson, 555 U.S. 323 (2009), the majority recounted that the Court has concluded unrelated investigations are tolerated if they do not lengthen the roadside detention. Id. It quoted language in Caballes that cautioned “that a traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket,” and language in Johnson that “[t]he seizure remains lawful only ‘so long as [unrelated] inquiries do not measurably extend the duration of the stop.'” Id. (Internal citations omitted). In most cases, inquiries concerning a traffic infraction include checking the driver’s license, checking warrants, and inspection proof of registration and insurance — which all relate to the mission of investigating the justified stop for traffic violations. Id.

In contrast, the Court went on, dog sniffs are aimed at criminal wrongdoing, and are not incident to the investigation for traffic violations. *6-7 (slip op.). “On-scene investigation into other crimes … detours from that mission.” *7 (slip op.). Clarifying that the critical analysis includes substance over sequence, the majority stated, [t]he critical question . . .is not whether the dog sniff occurs before or after the officer issues a ticket . . . But whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop[.]'” *8 (slip op.).

Justices Thomas and Alito wrote dissenting opinions, which, along with the majority opinion, you can read at the following URL:

In real life, extraneous investigations during a traffic stop, while annoying, and illegal if they prolong the time it normally takes to conduct a traffic investigation and issue a ticket, are going to continue to occur, because law enforcement relies on traffic stops as a net to ferret out crime. So, turn off your engine, place your hands on the wheel, be respectful, and have your paperwork in order in an easy-to-acquire location, so you are not prolonging your own investigation.

1. Jay Z, “99 Problems”, The Black Album (2004 Roc-A-Fella Records, LLC). Interestingly, Jay Z’s “99 Problems” song was released while Illinois v. Caballes, 543 U.S. 405 (2005), an important prior dog sniff case, cited and analyzed in Rodriguez, was pending before the US Supreme Court. For an in-depth legal analysis of “99 Problems”, read Caleb Mason, Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, ST. LOUIS L.J., Vol. 56, No. 567, 2012.

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