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.