Seven Minutes in Heaven

Orin Kerr, at his new WaPo Volokh Conspiracy money machine gig, combines the holdings in two cases to arrive at a mathematical solution to one of the most intractable problems in criminal law.  First, the scenario:

Imagine a police officer pulls over a car for a routine traffic violation, such as speeding or driving with a broken taillight.  During the stop, the officer develops a hunch that there may be drugs in the car.  He contacts a local K-9 unit and requests a trained drug-sniffing dog; when the unit arrives, another officer will walk the dog around the car to see if it alerts to drugs inside.  Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable. The officer can’t delay the driver forever.

While Orin relies on a hunch, it’s really not critical that the cop have any basis whatsoever. Even if the situation was changed to cover the cop who calls for a dog because it’s a black driver in a new Mercedes, or a couple of Hispanics in a car on a drug route in an area where there aren’t a lot of folks with colored complexions, the tactic is the same. Stopped car. No reasonable suspicion. Call in the dog.

After the ticket has been issued, how long can the cop make the driver wait for the dog to arrive?

Lower courts have generally answered the question by adopting a de minimis doctrine.   Officers can extend the stop and wait for the dogs for a de minimis amount of time.  But exactly how long is that?

Just yesterday, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Rodriguez that seven to eight minutes is de minimis.  On the other hand, the Supreme Court of Nevada held a few months ago in State v. Beckman that nine minutes is too long.

If one was to be a slave to precedent, it would seem we finally have an answer to this vexing question. Eight minutes is constitutional. Nine is not.  Have the courts finally invented nailed down a specific length of time during which it’s cool to violate the constitutional right to be left alone?

Don’t ask why eight is good, but nine is not. The only answer is that this is what courts have said. The de minimis approach is, by its nature, wholly subjective.  Sure, when you’re driving to school to pick up a sick child, standing outside in the freezing cold awaiting you, eight minutes is an eternity. But courts don’t give a hoot about your problems; it’s all about the dog, and the law, and drugs and terrorists.  What about the children?

If the police cruiser has a dash cam, it may prove pretty easy to show that the dog didn’t arrive in the requisite eight minutes.  At an elapsed time of 9:01, you’re home free. At 8:59, you’re sunk. Hey, bright line rules require cut offs, even if they’re kinda silly. That’s how rules work.

Without a stopwatch on the stop, however, you end up with testimony like:

Q: How long did you wait for the K-9 unit to arrive?

A:  It got there in about five or ten minutes.

What do you do with that?  But the more likely scenario, should eight minutes be the rule, is:

Q: How long did you wait for the K-9 unit to arrive?

A:  It got there in about five minutes. I checked my watch to note the time. It was definitely less than seven minutes.

This is where the defendant grabs your arm, squeezes it tightly enough to stop the blood flow, and hisses, “he’s lying!”  Seven minutes in heaven, pal. You lose.

The problem isn’t with the lack of a verifiable timer, but with the embrace of some judge’s vision of what constitutes a de minimis violation of an individual’s constitutional rights.  If there is a bright line to be drawn, then it should be drawn at the point where the Constitution mandates, not where some wavy line comports with some judge’s sense of “close enough” or “no big deal.”  The right to be left alone belongs to the person being stopped, and it’s not left to some judge to shrug it off as inconsequential.

By trying to pin down a length of time after the conclusion of a traffic stop during which a suspicionless seizure doesn’t invoke the Fourth Amendment remedy of suppression, the tacit problem is that courts fudge the details in order to give the police some extra latitude to find a reason to arrest a person after their lawful justification for the seizure has ended.

Time’s up. You had your chance to seize while doing your traffic stop voodoo, and you couldn’t get the dog there in time. Suck it up and move on to the next Mercedes driven by a black guy.  It’s as much of a bright line as eight minutes, except it finds doctrinal justification in the Constitution, which includes no de minimis caveat.

Then again, this may all prove fairly silly and pointless, as the traffic cop can just sit in his cruiser with your license, registration and insurance card, pretending to be running your name while watching porn on Youtube, until the dog arrives. Who can argue with the “computer’s running slow today” excuse?

Still, the existence of rules that apply to all the relevant players in the dog and pony show of pretense traffic stop, dog sniff and future of life in prison will help to provide some parameters to work with.  It beats the hell out of whatever a district court judge considers de minimis at any given moment.

While rules tend to give rise to artful methods of circumventing rules, they also tend to prevent the slide down the slippery slope to a couple of hours of de minimis waiting for the dogs to alert.  In the meantime, enjoy the quiet time after the ticket has been delivered and before the dog has arrived. It may your seven minutes in heaven, before your arrest and you spend the next twenty years in hell.

 

 

 

8 comments on “Seven Minutes in Heaven

  1. John Burgess

    I suddenly see a market for repurposed chess clocks!

    Some tech wizard will tie them into the cars computer system so that when the car is pulled over, the driver need only tap one of the buttons on top. After he’s given his ticket or otherwise released, he taps the second button. This starts the eight-minute countdown. At the stroke of eight, lights flash, the engine starts up, and the car’s speakers announce, “I’m outta here.”

    BTW: some pages, when Continue reading is clicked, open with a very strange format. Text runs nearly border to border and in a very small type. Perhaps it’s just my Firefox browser, though.

  2. Wheeze The People™

    And it will be really funny the first time a little person gets gunned down because he made a furtive movement towards his stopwatch . . . “Yo time is up!??!” . . .

  3. A Voice of Sanity

    Buy an MD80 camcorder on eBay ($8). Mount it behind the rear view mirror, pointing at the driver’s window. Start it when you see the flashing lights. You’ll have all the time stamps you need – and a record of any lies told. Couldn’t hurt?

  4. Nigel Declan

    Sadly, Orin will not be able to square this particular jurisprudential circle, since the answer is, as it has consistently been following the Supreme Court’s confirmation that drug dog searches are not “searches”, that the reasonable time period is as long as the courts will bear in the given circumstances. Prof. Kerr’s mistake is assuming that the decision to maintain that a pretextual stop and detention to perform a K-9 non-search as constitutional as long as it was done without an unreasonable delay was intended to create (or to ultimately lead to the establishment of) some sort of bright-line, some method by which lower courts could consistently say that Delay A was reasonable but Delay B was not. If the mention of fuzzy time restrictions is fundamentally a sop to civil libertarians rather than the recognition of a meaningful balancing principle, then Orin’s efforts to determine the “reasonable” length of a delay becomes little more than trying to deduce how many angels can dance on the head of a judicial pin.

  5. Marc R

    If “de minimus” means inconsequential, then it would only ever be de minimus if the police didn’t find anything AND it was under 9 minutes.

    1. SHG Post author

      It never reaches a court if the police don’t find anything. Then it’s just one of those free-floating constitutional violations that no one ever knows about.

Comments are closed.