Posted by:  Edmund R. Folsom, Esq.

Date:  April 26, 2015


On April 21, 2015, the U.S. Supreme Court handed down its decision in Rodriguez v. United States.   These days, police routinely expand traffic stops into the broadest possible crime-detection mission through use of drug-sniffing dogs.   The Rodriguez case involved a Nebraska police officer named Struble, who noticed that Rodriguez’s vehicle slowly veered onto the shoulder of a Nebraska highway for a second or two before jerking back into the travel lane.  It’s a violation of Nebraska law to travel on the shoulder of a road, so officer Struble’s observation gave him probable cause to pull the vehicle over for the violation. The stop occurred at 12:06 a.m.  Struble checked Rodriguez’s license, registration and proof of insurance, asked Rodriguez’s passenger for his license, and ran a warrants check on both vehicle occupants.  Struble also questioned the men about where they were coming from and where they were going before calling for a backup officer and writing a warning for the traffic violation.  You see, Struble had a drug-sniffing dog in his vehicle and he was chomping at the bit to run the dog around Rodriguez’s vehicle, but he didn’t feel safe doing that until he had a backup officer on scene.   At  12:27 or 12:28 a.m., Struble was done handing Rodriguez the warning and explaining it to him.  But although he was finished with all the business having to do with the traffic stop, Struble didn’t intend to let Rodriguez and his passenger go.  Instead, he asked Rodriguez if he could walk his drug dog around the vehicle.   Rodriguez said no.  Struble then told Rodriguez to shut off the vehicle and he ordered Rodriguez and his passenger to get out and stand at the front of it.  When Struble’s backup officer arrived, around 12:33 a.m., Struble proceeded to run the dog around Rodriguez’s vehicle twice.  On the second trip around the car the dog alerted, which created probable cause to search the vehicle and led to the discovery of methamphetamine inside.   The case arrived at the U.S. Supreme Court in the posture that Struble had no reasonable suspicion of criminal activity to detain Rodriguez or his passenger once he was done issuing the warning.  The government argued that the further detention for the dog sniff was “reasonable,” for Fourth Amendment purposes, because it was merely a de minimus (very minor) extension of what was a legitimate stop to begin with.   The Supreme Court rejected that position, holding that, absent reasonable suspicion of some other violation of law, a traffic stop cannot be prolonged beyond the time reasonably required to complete the mission of the original traffic stop.   Because the dog sniff added time to Rodriguez’s stop– 7 to 10 minutes after the warning was handed to him– Rodriguez’s seizure was unreasonable when the sniff occurred.

The police investigative tactic at issue in Rodriguez came about because the Supreme Court previously decided that using a trained drug-sniffing dog to sniff for drugs is not a “search” within the meaning of the Fourth Amendment.  The idea is that a dog sniff does not involve any intrusion into the area where the drugs are located; a person has no reasonable expectation of privacy (none that society is prepared to recognize as reasonable) in the possession of contraband; and a dog sniff that can only detect the presence of contraband is therefore not a Fourth Amendment “search.”  This non-search theory provides police open season to use drug-sniffing dogs anywhere and everywhere police are lawfully entitled to be, because non-search/non-seizure activity is not at all restrained by the Fourth Amendment.   It’s kind of an invitation to PARTY TIME! for law enforcement.  And so, police bring out the dogs for traffic stops.  Police used to set up roadblocks, drag-netting the traffic in certain neighborhoods, using drug-sniffing dogs to check for people possibly transporting drugs, but that practice was shut down, in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), on a theory that suspicionless roadblock stops cannot be conducted for the purpose of general crime control.  And police even used drug-sniffing dogs to approach and sniff the front doors of residences, hoping to develop probable cause that drugs were inside, until that practice was shut down, in Florida v. Jardines, 569 U.S. __ (2013), on the theory that using a dog for that purpose exceeds the scope of the implied permission for licensees and invitees to approach the front doors of residences. To be clear, the practice of using drug-sniffing dogs during traffic stops will not be shut down by the Rodriguez case.  Police are free to use the tactic as long as it doesn’t extend the time reasonably necessary to complete the mission of the traffic stop.   This means if a second officer is present with a dog, to do a sniff while the primary officer is diligently going about the business of dealing with the stop-related issues, nothing in that practice runs afoul of the Constitution.  We already know that a dog sniff isn’t a search, so conducting a dog sniff during a traffic stop can only violate the Fourth Amendment if it’s done during an unreasonable seizure of the vehicle’s occupants.  Now we also know that the point of unreasonableness is reached when the traffic stop is prolonged beyond the point reasonably required to complete the traffic stop mission.

In Rodriguez, it took officer Struble 21-22 minutes to finish up his business related to the traffic warning.  By the time the dog alerted on Rodriguez’s car, about a half hour had passed since the traffic stop was initiated.  I don’t know how that strikes you, but that seems like an awfully long time to be held at the roadside with blue lights flashing just to be given a warning for briefly veering onto the shoulder of the road.  The Rodriguez Court made a point to say that part of the officer’s mission in completing traffic stop business involves running checks on the driver’s license, registration and possible outstanding warrants.  In other words, the person’s seizure remains reasonable for the time it takes to conduct those activities during the traffic stop.   But the Rodriguez Court made those statements in the context of a case that involved probable cause of a traffic infraction, where that probable cause remained intact throughout the traffic stop.  In Maine, our Law Court has given police a lot more leeway than that.  The Maine Law Court has held that if an officer pulls someone over based on reasonable suspicion of a violation of law, even if the officer determines, once the person is pulled over, that the suspicion was unfounded (for example, belief the vehicle wasn’t displaying a license plate, but license plate visible in vehicle’s rear window upon approach; belief a vehicle was driven by a person known to officer whose license was suspended, but approach revealed officer was mistaken about the driver’s identity) the officer may continue to detain that person, after the reasonable suspicion is gone, in order to check the person’s license status, registration and proof of insurance.   The theory is that once the person is lawfully pulled over in the first place, based on a reasonable mistake of fact, it’s only a minor extension of the initial, lawful stop to check license status, etc.   This minor extension of the seizure is deemed to be “reasonable” under the general Fourth Amendment “reasonableness” balancing test, which measures the government’s interest and the degree to which the government’s actions advance that interest against the degree of intrusion on the individual’s liberty interests. Maine’s Law Court says the government has a strong interest in making sure drivers are properly licensed and insured and that their vehicles are properly registered, while the intrusion on the individual, once lawfully stopped, is so itty bitty, eensy weensy, minor as to be negligible in that balance.  But once we know the person should not have been pulled over to begin with, what’s left to do to complete the traffic mission related to the violation of law that the officer now knows never occurred?    Again, to me, being pulled over and held at the roadside for 20 or 30 minutes, after the officer knows his initial probable cause or reasonable suspicion was based on a mistake, is no small imposition.  The imposition is even less minor if a dog is brought to the scene to sniff around my car, making the spectacle considerably more embarrassing, as I hope to God nobody who might recognize me happens to drive by and witness it.   I also think that to call it only a minor or negligible intrusion is to be in a position of confidence that one’s own ox is not the one that will be gored by the repercussions.  To illustrate the point, imagine a Supreme Court Justice thinking it’s only a small thing if he or she were made to sit on the roadside for a half hour, subjected to license, registration and warrants checks (and perhaps a non-search dog sniff), long after the officer who conducts the stop realizes the stop was initiated on a case of mistaken identity.   In my humble estimation, a Justice’s estimation of the balance of interests would be radically altered in that circumstance.   The price to be paid always seems so much smaller when it’s assumed the price will only be paid by someone else.