Police officer conducts a drug dog sniff during a traffic stop after the business of the traffic stop was over. Was this legal or illegal?
See Rodriguez v. United States, Doc. No. 13-9972 (04/21/2015).
Does the Fourth Amendment tolerate a police dog sniff during traffic stop after completion of the reason for the stop?
More Information on Police Dog Cases
I have put together a collection of articles and podcasts dealing with the law around police drug dog issues. If you are interested in more information then you may want to also check out the following posts:
- Police Dog Case Law Summary
- Police Dog Sniff of Apartment Door is a No-No
- Police Dog Sniff Set-Up Procedure
- Police Dog Discovery | Lets Go Get It
Facts: Police Dog Sniff During Traffic Stop
In this case, a K-9 officer sees a car jerk to the right then quickly veer back into the lane. The stop occurred at 12:06 a.m.
Normal traffic stop stuff happens between the officer and the occupants. The officer …
- asks for ID from the two men in the car
- asks where they going, and
- asks about the car jerking out the lane.
A police dog is in the car the whole time.
At 12:28, the officer gives them back their IDs and gives Defendant a warning for the lane thing.
The officer then asks Defendant for permission to conduct a drug sniff around the car. Defendant says “no.” Cops says “get out the car”, apparently, he was doing the dog sniff anyway.
You see, the officer had already called for back-up and was just waiting for that officer to arrive. The second officer was needed so he could watch the two men during the sniff.
The dog alerts and the officer finds over 50 grams of methamphetamine in the car.
De Minimis Constitutional Violation
After, this case I guess I know how prosecutors feel about jury nullification. (Jury nullification is not at all an issue in this case).
The trial judge and the 8th Circuit Federal Appeals court both acknowledged that there was no probable cause or reasonable suspicion for the dog sniff. That in essence is a finding of a constitutional violation.
Usually, this is pretty serious stuff.
But, these lower courts held that because the dog sniff occurred only 7 to 8 minutes after the completion of the traffic stop the Fourth Amendment violation was de minimis, not of constitutional significance, and therefore permissible!
You see what I mean? They were saying, “Of course there was a violation of the Fourth Amendment here, but so what? Whats the big deal?”
I guess, this is how prosecutors must feel when we tell them that our clients our guilty, but we are hoping for jury nullification from the trial.
Traffic Stops Have a Scope Requirement
It has been well established in search and seizure law that the scope of a detention must be carefully tailored to the underlying justification for the stop. This is basic stuff.
Consistent with this notion of scope is the idea that authority for the seizure ends when the tasks tied to the traffic infraction are or reasonably should have been completed. This goes way back to Terry v Ohio, 392 U.S. 1 (1968) and Illinois v. Caballes, 543 U.S. 405 (2005).
In Caballes the Court explained that an officer may still –
- Check Driver’s Licenses
- Conduct Warrant Checks
- Inspect Registration
- Ask for Proof of Insurance
See Caballes, 543 U.S. at 408.
Additionally, Illinois courts allow officers to ask questions about the detainee's coming-and-goings. Illinois courts have also allowed broad questions like, “Is there anything illegal in the car?”
However, these other intrusions unrelated to the traffic stop remain lawful “so long as [the unrelated] inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S 323, 333 (2009).
The court acknowledged that an officer may constitutionally remove a car’s occupants during a traffic stop for officer safety concerns.
This Court said that police dog sniffs are different.
A police drug dog sniff is a measure aimed at detecting evidence of ordinary criminal wrongdoing. “Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular.” See page 8 of decision.
The Supreme Court characterized the government's argument this way: They said the government was arguing that because the officer was diligent of his investigation of the traffic infraction he should be given some bonus time to pursue an unrelated criminal investigation.
The court obviously brushed that notion aside.
Officers should always be moving diligently and not delaying or prolonging traffic stops unnecessarily. Further, the constitutional requirement here is not measured in absolute time. In other words, a traffic stop that occurs in a small amount of time can still be unreasonable if it is otherwise improperly “prolonged.”
A traffic stop prolonged beyond the time that an expeditious officer could reasonably complete the mission of the traffic stop is unlawful.
The critical question is not whether the police dog sniff occurs in a reasonable amount of time, nor whether the dog sniff occurred before or after the ticket is written, but instead the critical question is whether conducting the sniff adds time to the stop.
The case was remanded to the Eighth Circuit to see if the officer may have had an independent basis justifying the expansion of the investigation.
What I Learned
I used to think that K-9 units would be used more and more for general patrol. Get a police officer with a dog as a partner out there and they would be able to kill two birds with one stone.
A traffic stop would automatically and simultaneously turn into a drug investigation.
Well, after this case, I can see that it is just not that easy to handle the dog during a “sniff” and still deal with the business of the traffic stop.
A police dog is not a partner like a real partner. You know, how one officer talks to you during a traffic stop and the other cop is just looking around, flashing his light into your back seat and being nosey.
A police dog can’t be set free to just sniff around then report back to the handler.
Dog wont' be able to tell his partner, “Yea, man this car is hot. I smell some fresh bud in the back. Mark me down as ‘alerting.'”
No, I guess it doesn’t work that way.
For more information, jump over to my resource page on police drug dogs.