Puppy Time At The Supreme Court

No, not a post of puppy pics (sorry), but a question that’s been floating around since I read Orin Kerr’s post about the Supreme Court’s grant of cert in Rodriguez v. United States.  You may recall that the 8th Circuit held that prolonging a stop for 7-8 minutes was a de minimus delay, while the Supreme Court of Nevada held in State v. Beckman that nine minutes is too long.

This was the topic of a post a while back, but is back on the front burner in light of the cert grant.

Importantly, today’s grant is on whether there should be a “de minimis” rule at all, not on how low long it should extend.

Being all legal realist and all, the question is how will the cops be held to comply even if the Supreme hold that any extension or delay following the completion of the justification for the stop is prohibited?

How do we know how long it takes to “process” a ticket?  How do we prove to a court that the cops exceeded the time necessary?

If the cruiser with the drug dog is still ten minutes out, so the cop sits in his cruiser fiddling with his computer, using the internets for their intended purpose, until the dog arrives.  Is this a problem?

If the officer has a suspicion, to be confirmed or dispelled, how many questions is he allowed to ask, and how long can he take to ask them, before he’s done?

So the American Association of Really Verbose Sheriff’s issues a “cheat sheet” of best practices that include 723 questions to ask every driver before an officer should be satisfied that no criminal activity is afoot.  Is this a problem?

If the officer has nothing, no excuse under the sun to justify his hunch that the car is filled with commie potheads, or just hates Toyotas, and decides to screw with them for the sheer joy of it, making up some cockamamie story about smelling marijuana, crossing the center line or furtive gestures, what judge isn’t going to shrug and credit the claim?

Only in the hushed courtroom at One First Street do cops never violate their sworn duty to be truthful, honest and professional.  “He deserved a good tune-up,” explains no prosecutorial brief ever.  What rule of law is going to make this disappear?

I’m asking for a friend.

22 comments on “Puppy Time At The Supreme Court

  1. Richard G. Kopf

    SHG,

    Please, no balancing tests or other magic juggling acts. If this is such a problem that you (the Justices) must get involved (and I don’t agree that it is), pick a finite time out of your ear or other orifice. 15 minutes, 8 seconds is fine. 15 minutes, 9 seconds is far too long. The opinion should not contain the word “reasonable.”

    All the best.

    RGK

    PS Whoever wrote the cert pool memo recommending that the Court take these cases should be publicly whipped on the steps of the Supreme Court building. If no Justice is willing, I volunteer.

        1. SHG Post author

          A cute one? Not that butt ugly one, right? And one that doesn’t shed. Or eat. Or poop. Or need walks. Or lick. Please, no licking. Ew.

          1. Richard G. Kopf

            SHG,

            A fake puppy; that’s the ticket. Maybe one like you can buy in Japan. Since the federal courts are a full service operation, I’ll throw in the batteries. Lithium batteries at that–the kind that blowup if you reverse the polarity.

            Bark! Bark! Bang!

            RGK

            1. lawrence kaplan

              Judge: I don’t see what is so funny, and I am dismayed that SHG plays along you– even if you are a judge. I wonder whether you realize that your trivializing and joking about the police’s violations of citizen’s rights under the 4th amendment as displayed in your comments here is a part of the problem.

            2. SHG Post author

              I don’t take Judge Kopf’s comment as a reflection of his view of the issue, but of the Supremes way of handling such issues.

  2. David Woycechowsky

    A rule of law that says anything beyond 15 minutes for a traffic stop is a “5A taking,” and must be compensated at a generous rate by a quick payment. The rate should be equal to the median wage (expressed as a per-minute wage) of a Supreme Court Justice and payable, in one minute increments, at the end of the stop. If the stop takes 16 minutes then the driver gets a check at the end of the stop for one minute of time.

    This way officers can take as long as they have the budget with which to compensate the taking.

    1. George B.

      If that check gets paid directly out of the local police pension fund, I betcha the stops end at 14:59.

    2. Peter Gerdes

      Unless the cop is personally liable this would do nothing. First, even if they kept you an extra hour and compensated you at 365k a year they would only need to find drugs and institute civil asset forfeiture of the car in a little over 1% of cases (assuming an average value of 5k for cars in the area). I suspect that it is the amount of extra work/boredom for them (or prosecutors) rather than an inability to meet that threshold that would actually provide the limit.

      Worse, the average time taken to bring the drug dog could simply be absorbed by hiking the fines (or piling on all possible fines) and avoiding local backlash by focusing on out of town vehicles.

      I mean it’s one thing to say that you need to raise fines to increase police officer salaries or the like. It should be much easier to raise them to cover the expense of keeping the town safe from the evils of dope

  3. Bob

    At best, all cops become Sgt. Schultz; at worst, Barney Fife. In a really just society, our laws should accept that and protect the public accordingly.

  4. Richard G. Kopf

    Dear Mr. Kaplan,

    With respect, I think you misunderstood me. Probably my fault.

    SHG is correct in his assessment of my position. By the way, SHG has eaten my lunch before when he and I have had a substantive disagreement. He doesn’t give me much if any slack, and I certainly don’t want any.

    As for the substance of the issue, here is my serious take:

    The case the Court took (decided at the trial level by Judge Bataillon and Magistrate Judge F.A. Gossett from the District of Nebraska) is not cert. worthy, in my opinion. In fact, I don’t believe the issue writ large is cert. worthy. On the contrary, I sincerely believe the Court is likely to do more harm than good–for everyone, including those whose rights you are passionately concerned about.

    All the best.

    RGK

    1. Orin Kerr

      It’s always possible the Court will do more harm than good — this is a problem with judicial decisionmaking at all levels — but I’m curious why you think the case isn’t cert-worthy. It’s an important issue, and there appears to be a split. Why isn’t it cert-worthy?

      1. Richard G. Kopf

        Professor Kerr

        Where is the split? Between a state court (Nevada) and a federal court of appeals? If so, who cares.

        You say it is an “important issue.” I have been doing suppression hearings involving drug interdiction stops and dog sniffs on I-80 for more than 25 years, I don’t see this as either hard or important. Why do you?

        All the best.

        RGK

        1. Orin Kerr

          Judge Kopf,

          I believe the split is between (a) the 8th Circuit and other courts that recognize the “de minimis” rule and (b) the circuits and state supreme courts that reject a de minimis rule, a group that the cert petition alleges — and the SG’s BIO does not dispute — includes the Nebraska Supreme Court and decisions from the Sixth Circuit, Tenth Circuit, and Utah Supreme Court. That’s not only a split among circuits but a split federal/state, such that a Nebraska case will get the “de minimis” rule if the case is brought in federal court but not in state court.

          As for the importance of the issue, it comes up very frequently and may impact whether and when law enforcement can use an important tool for investigating a high priority type of case. That seems important to me, at least. I suppose I would turn the question around: If you think the issue is not important, can you say why?

          Finally, your opinion that this issue isn’t hard doesn’t seem relevant. Difficulty is not part of the Rule 10 cert standard. Under Rule 10, Supreme Court intervention is about consistency and importance, not difficulty. And properly so, I think. For one thing, different judges often disagree 100% while each thinking that the issue is easy and that they are clearly right.

          1. Richard G. Kopf Post author

            Dear Professor Kerr:

            Briefly, here are several thoughts in response to your comment:

            1. In Illinois v. Caballes, 543 U.S. 405, 407 (2005), the Court addressed the question “[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” In that case, one officer walked his dog around the defendant’s car while another officer “was in the process of writing a warning ticket.” Id. at 406. In concluding that the dog sniff was permissible without any level of suspicion, the Court explained that the use of a well-trained narcotics-detection dog — one that “does not expose noncontraband items that otherwise would remain hidden from public view” — during a lawful traffic stop generally does not implicate legitimate privacy interests. Id. at 409. In this case, the dog sniff was performed on the exterior of petitioner’s car after he had been lawfully seized for a traffic violation. The sniff itself did not intrude on petitioner’s legitimate privacy expectations.
            In the Eighth Circuit case, the officer had a drug dog present at the scene. He could have employed the dog during the ticket writing process but delayed for the purposes of his safety and that of the two occupants of the vehicle. Remember, it was midnight near the small town of Valley Nebraska–that is, it was out in the boondocks, if you will. Remember also that the driver refused consent to allow the officer to employ his dog to sniff the outside of the the car, at which point the officer had the driver get out the car, presumably for safety purposes, and stand in front of the car while backup was in route. On these facts, do you honestly think the case is cert. worthy given the Caballes decision and the fortuity of whether one or two cops were at the scene at the precise moment the ticket was handed to the uncooperative driver?

            2. As for your “conflict” claim, the Solicitor General saw no conflict in the Nebraska, Sixth Circuit or Tenth Circuit cases and neither do I. The officer had an articulable suspicion that the car contained drugs and that fact harmonizes the instant case with the allegedly conflicting cases. The reasonable suspicion came from the fact that the driver refused to sit in the patrol car while the ticket was written and that had never happened before in the officer’s experience, the driver refused consent to allow the drug dog to sniff the outside of the car, there was an overwhelming odor of air freshener emanating from petitioner’s car, passenger Pollman’s nervous behavior and attempts to avoid being looked at closely caught the officer’s attention, and the officer believed that Pollman’s story about the reason for making the long trip to Omaha in the middle of the night to buy a car sight unseen was not credible, particularly given that no such car was purchased. The court of appeals did not address the government’s argument that the police had a reasonable suspicion that petitioner was engaged in criminal activity, independently justifying further detention. Thus, as a prudential matter, at most, the Court should dodge the issue for which cert was granted and remand for further consideration of the issue the Court of Appeals (and Judge Bataillon, the district judge) declined to reach.

            3. As SHG implicitly pointed out, virtually all of these cases are peculiarly fact sensitive. I highly doubt that the Court will be able to construct a rule that accounts for the virtually unlimited number of factual scenarios that present themselves. That is because what we are really talking about is whether the “seizure” that occurred following the issuance of the ticket was unreasonable. Given the fact that we are concerned with mere minutes, it is hard to believe that that the Justices will be able to articulate a principled reason for concluding that the several minute delay (“seizure”) was unreasonable.

            4. You write: “Finally, your opinion that this issue isn’t hard doesn’t seem relevant.” As a realist, here is why I think it is very relevant. A United States Magistrate Judge (Judge Gossett) with years of experience on the federal level and years of experience as a state trial judge found for the government. A United States District Judge (Judge Bataillon), with years of experience as a trial judge, years of experience as a public defender and a well-known reputation for being solicitious of the rights of defendants, found for the government. The United States Circuit Judge who wrote the opinion affirming the trial court has decades of experience as a Circuit Judge, including service as the Chief Judge, and before that years of experience as a Justice of a State Supreme Court judge. One of the concurring Circuit Judges (Judge Colloton) likewise had years of experience as a Circuit Judge, he served as a United States Attorney and he clerked for Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit and for Chief Justice William H. Rehnquist. The other concurring Circuit Judge (Judge Gruender) has years of experience as a Circuit judge, and previously served both as an Assistant United Attorney and as a United States Attorney. These judges are serious, objective, hard working and practical jurists who found the case quite unremarkable. Again, speaking as a realist, the foregoing suggests to me that some members of the Supreme Court are finding “importance,” to use your word, when few, if any, other judges would come to that conclusion.

            5. For those who would like to read the Solicitor’s well reasoned brief, and mindful that SHG does not permit hyperlinks, here is where it can be found on the Internet, Dennys Rodriguez v. United States, No. 13-9972 – Supreme Court Review http://www.supremecourtreview.com/default/file/view/id/7039.

            All the best.

            RGK
            [Ed. Note: Rule against links suspended in this instance by unjustifiable fiat. It just seemed to be the right thing to do.]

            1. Orin Kerr

              Judge Kopf,

              Responding to your numbered paragraphs with the same numbers:

              1. I disagree. The officer had seized the driver, and was continuing to seize the driver: The question of how long the seizure can occur is very important. I gather you think it’s no big deal to contiinue to seize someone as long as the purpose of the continued Fourth Amendment seizure is something that has been classified as a non-search. But I don’t know why you have that view, and I don’t agree.

              2. No, the SG isn’t contesting the split; they’re arguing that it wasn’t implicated based on these facts. But unlike you, I doubt there was reasonable suspicion on these facts. In particular, I’m perplexed by your suggestion that refusing to consent to a Fourth Amendment search is itself cause for suspicion. If not agreeing to give up your rights is a basis for losing your rights, then the government wins no matter what, right? That can’t be the law, and fortunately isn’t.

              3. What you think is hard, I think is easy. The Fourth Amendment requires stops to be based on reasonable suspicion, and after a stop is over and there is no more suspicion, a continued seizure is not based on reasonable suspicion and is therefore not allowed.

              4. Your answer suggests that you don’t understand the Supreme Court’s cert standard. The fact that a smart judge in one circuit with one binding legal standard finds a case easy under that standard is not relevant to whether the case is certworthy. The cert standard looks for disagreements in the legal rules in different jurisdictions. If Circuit A has a rule where the answer is “obviously the government wins,” and Circuit B has an rule where the answer is “obviously the defense wins,” we don’t say that the case isn’t certworthy because the judges in Circuits A and B are each really smart and had great clerkships and all find the answer super obvious under their circuit precedent. Instead, the disagreement about the correct rule is what makes the case cert worthy. That’s what matters to the Justices.

            2. Richard G. Kopf Post author

              Dear Professor Kerr,

              After I make three responses, let’s simply agree to disagree. Here they are:

              1. I believe the fact that the driver would not sit in the police car or let the dog sniff the outside of the car (thus potentially speeding the driver on his way) likely caused the officer a certain amount of apprehension given the fact that the officer was alone, in the boondocks, and it was late at night. Moreover, both of these actions also struck the officer as unusual, particularly the refusal to sit in the cruiser. Given the other factors I wrote about, and which you did not address, I belief these two facts are part of the real world context for making an assessment of reasonable suspicion on the part of a reasonable officer. You write: “If not agreeing to give up your rights is a basis for losing your rights, then the government wins no matter what, right? That can’t be the law, and fortunately isn’t.” This is not your classroom professor so I won’t accept your misstating what I said. I did not state that “agreeing to give up your rights is a basis for losing your rights . . . .” If you are going to argue with me, at least be intellectually honest.

              2. As for your snarky response that “[y]our answer suggests that you don’t understand the Supreme Court’s cert standard[,]” if Rodriguez is a cert. worthy case, then you got that right.

              3. The vitriol your comment exudes seems a bit over the top. Chill out, dude. This is not a faculty meeting.

              All the best, and I really mean it.

              RGK

            3. Orin Kerr

              Judge Kopf,

              To be clear, my comment about you not knowing the cert standard was not intended to be snarky. It’s just that your comment suggested that you don’t understand the cert standard, and I thought it helpful to state that directly to explain our disagreement. It’s perfectly understandable if you don’t understand Supreme Court practice, to be clear. There’s no particular reason you would know it, as it doesn’t come up in your line of work.

              As for all the weird personal/defensive stuff in your comment: Sheesh.

Comments are closed.