In what may be the most significant Fourth Amendment case this year, the Supreme Court recently heard arguments in Rodriguez v. United States, which raises the question of how long (if at all) a police officer can delay a traffic stop to conduct further criminal investigations. In the Rodriguez case, Officer Struble pulled defendant Rodriguez over at 12:06 AM for veering onto the shoulder of the road. Struble was a K-9 officer, and he had his partner Floyd with him in the police car. Officer Struble conducted a routine check of Rodriguez’s license and other papers, asked a few questions, and issued a written warning at about 12:27. Struble then asked whether Rodriguez would consent to the drug dog sniffing the car, and the Rodriguez refused. Officer Struble, correctly concluding that he was allowed to conduct a drug dog sniff even without consent, decided to go ahead and deploy Floyd over Rodriguez’s objections. However, since Rodriguez had a passenger in his car, Struble decided that it would be too dangerous to conduct the dog sniff without backup, so he ordered Rodriguez out of the car and made him wait until a second officer arrived on the scene. Approximately six or seven minutes later, a second officer arrived, and Officer Struble and Floyd walked around Rodruiguez’s car. Floyd alerted in under a minute, providing probable cause to search, and the police ultimately recovered a large bag of methamphetamine.
The question before the Court in its narrowest formulation is whether Officer Struble was permitted to require Rodriguez to wait for the backup to arrive. The broader question is usually phrased as whether (and for how long) police officers can prolong a traffic stop after it is completed in order to conduct a further investigation. But a more realistic way of setting out the question is really: “What is a ‘reasonable length of time’ for a traffic stop?” In other words, the Court can either analyze this case as either:
a twenty-one minute traffic stop that included a license check and routine questioning, which was completed, after which there was a seven minute delay for a drug dog sniff, or
a twenty-eight minute traffic stop that included a license check, routine questioning, and a drug dog sniff.
If the Court adopts the first analysis, there are only two arguments that the police action was constitutional, and neither of them are very convincing. The first argument is that Officer Struble had reasonable suspicion to seize Rodriguez for those seven minutes as part of a Terry stop. But even under the low standards of reasonable suspicion, there is not much evidence that Officer Struble had specific and articulable facts that criminal activity was afoot–and at any rate this issue was not briefed for the Court. The second argument, which was the one adopted by the Eighth Circuit, was that the extra seven minutes was a de minimis intrusion and thus the delay was reasonable. The Eighth Circuit cited a number of cases which have approved of a delay of two to four minutes, and so it concluded that the traffic stop in this case was not “unreasonably prolonged.” Ginger Anders, the Assistant to the Solicitor General who argued the government’s case, also took this position. However, the Justices were not very amenable to this line of reasoning during oral argument, and they pointed out that it would allow the police officer to do any number of things after the traffic stop was over, as long as they did not “unreasonably prolong” the stop. For example, a police officer could question a motorist for an extra seven or eight minutes about potential criminal activity. Justice Kagan showed her displeasure at this idea:
But then you really are saying because we have a reason to pull you over for a traffic stop, that gives us some extra time to start questioning you about other law enforcement related things and to do other law enforcement related business. And I never thought that that was the rule. I always thought is that once the objective basis . . . for the stop dissipated, that was it.
The other problem with the “reasonable delay” argument is that it results in rather arbitrary line-drawing about how long a traffic stop should take. And once those lines are drawn, police officers will have free reign to do whatever they think is useful (as long as it is not a “Fourth Amendment search”) within the time frame. Again, Justice Kagan summarized the problem:
But . . . where your rule is going to lead to, Ms. Anders, is something along the lines of . . . everybody will decide 30 minutes or 40 minutes, I think you say at one point in your brief, is reasonable for a traffic stop. And if you see a taillight violation, that’s 40 minutes of free time for the police officers to investigate any crimes that they want, because they can do it all in the range of what you’ve decided is kind of the reasonable traffic stop.
The second analysis–that the drug dog sniff could be thought of as a reasonable part of a routine traffic stop–is more interesting, and it received a fair amount of attention from the Justices in the oral argument. During his argument, defense attorney Shannon O’Connor struggled to define the point at which a traffic stop was completed. After some confusion on the issue, he wisely rejected a formalist, brightline test (e.g., the traffic stop is over when the police officer formally hands a ticket to the motorist). Instead, he argued that a traffic stop can take no more time than is reasonably necessary to conclude the “mission” of the traffic stop. But that merely begs the question: what is the “mission” of a traffic stop? Currently, police officers routinely check a motorist’s license, registration, and proof of insurance; they take time to run the plates of the car to see if it has been stolen; and they ask the motorist questions about where they are going and why. None of these actions have any particular relationship to the initial reason for the traffic stop–in this case, the fact that the motorist swerved onto the shoulder. So if these non-related actions are allowed, why not also a dog sniff? O’Connor even conceded that if the police officer who initially pulled over the motorist feels like she needs backup in order to safely interact with the motorist, it is constitutional to force the motorist to wait for up to thirty minutes before the backup arrives. And yet, after the backup arrives, and while the original officer is writing out the ticket, the backup cannot go ahead and conduct a dog sniff of the car–even though the dog sniff itself is not a search? Rory Little at SCOTUSblog thought that it was “clear” after the oral argument that drug dog sniffs are “extraneous” to the mission of a traffic stop, but some of the questioning from the Justices seemed to leave open the possibility that a drug dog sniff could be a reasonable part of a routine traffic stop. Thus, the Court could resolve this case by merely saying that drug dog sniffs are (or are not) part of the mission of a stop. If they are not, any extra delay in order to conduct a drug dog sniff is an unconstitutional seizure. If they are, then the police are allowed to delay the stop to conduct a drug dog sniff, as long as the police are diligent in conducting that search. But this only raises more questions: what else is part of the mission of the stop? In particular, is extensive questioning part of the mission? If so, how much questioning?
In resolving this problem, Professor Orin Kerr argues that traffic stops should be classified into two categories. The most common category is comprised of stops which are the result of a mere traffic violation (as in Rodriguez). For these stops, the mission is “to find and evaluate safety concerns”–so the officer can only do what is necessary to ensure the safety of other motorists, and she cannot conduct any criminal investigation (such as asking questions about criminal activity, asking consent to search the car, or using a drug dog) if that conduct prolongs the stop. The second category is when the officer has reasonable suspicion to believe that a crime has been committed–in which case the mission of the stop expands to criminal investigation.
Although this is an elegant solution, there is no case law that supports this distinction, and it adds yet another layer of complexity to an already extremely complex area of law. We would have two different types of car stops, with different rules (and two separate sets of jurisprudence) for each. Furthermore, the distinction between a “traffic code violation” and a “criminal law violation” would be hard to apply in practice. Many mere traffic violations could give rise to reasonable suspicion that the motorist is intoxicated–which would transform a traffic code violation into a criminal law violation. And even in pure traffic code stops, police would have a strong incentive to try to gather information to transform the traffic code stop into a criminal law violation stop, leading to an infinite variety of fact-based puzzles as to when a stop was “transformed” and whether a police officer delayed the original traffic code stop in an attempt to bump it up to a criminal law stop.
In the end, it will be hard for the Court to resolve this case without de facto legislating from the bench by telling police officers exactly what they can and can’t do during a routine traffic stop. The Justices will no doubt have to base this list of permissible actions on what they say is “reasonable,” but in fact they will probably conclude that what is “reasonable” is simply what the police have traditionally done during traffic stops–checking documents, running plates, and asking routine questions. There is no particular argument that these actions are “reasonable” compared to, say, a drug dog sniff or a prolonged inspection of the outside of the car, or running a warrant check on all the passengers in the car, or any number of other things that police might want to do.
But “reasonableness” here is a term of art to mean (as it often does in the Fourth Amendment context) what we are used to seeing the police doing, rather than what is actually reasonable for the police to do. Thus, in this case, well-established practice will create the constitutional rule, rather than (as it should be) the other way around.