After learning of the Supreme Court’s grant of cert in Rodriguez v. United States, I posted some snarky, post-legal realism, observations about why this was less than good news. The issue in Rodriguez is whether an extension of a traffic stop beyond the time needed to issue a citation in order to conduct a dog sniff, or pursue consent to search, or engage in a new line of questioning, is subject to a de minimus intrusion analysis.
Among the problems I foresaw was that the Supreme Court could hold that after the justification for the initial stop was completed, they were required to let the driver go without conducting any further intrusion or investigation. In other words, once the ticket was “processed” (a meaningless word I despise), the stop was over and the person free to leave immediately. Any further action by the police was an unconstitutional extension of the seizure.
It struck me that this was the only viable holding. The notion that they could engage in a new, suspicionless investigation, whether by questioning or dog sniff, was doctrinally empty. Once the justification for impairing a person’s right to be left alone ended, it ended. There was no authority for “just one more thing,” and without authority, the right to be left alone trumped everything.
My issue was that this gave the cops a new rule to game. While the defense loves bright line tests, so do the police, as they then have a fixed standard to circumvent. Once they know the rule, they can figure out ways to violate the rule with impunity. And as rules go, this was going to be slam dunk for the reasons noted.
But then an independent, intervening naked mud-wrestling match broke out, and being quite a fan, I sat on the sidelines, munching popcorn, watching intently. In the comments to my post, Judge Richard Kopf and Lawprof Orin Kerr squared off. It was a fascinating, and revealing, discussion.
In an unanticipated way, it appears the discussion switched sides in mid-stream, after Judge Kopf dismissed the practical significance of the question coming before the Court, when Orin noted:
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?
By characterizing the unauthorized extension of a seizure as “an important tool,” Orin seemed to take the position that this was justifiable. But then, Orin also responded to Judge Kopf’s assertion that the solution wasn’t “hard” with a truism:
For one thing, different judges often disagree 100% while each thinking that the issue is easy and that they are clearly right.
I agree with Judge Kopf that it’s not a hard question. And I completely disagree on the answer. Judge Kopf replied with a litany of the well-regarded judges who ruled on the issue, in agreement, to demonstrate that while a few Supremes may find the issue hard and important, working judges, from mags to the circuit, weren’t struggling.
More significantly, Judge Kopf offered his fact specific anecdotal view:
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?
This is where the apparent flip gets very interesting. Orin’s response:
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.
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.
Notwithstanding that post-authorization investigation may be an “important tool,” Orin’s doctrinal view would constrain any further extension of the seizure beyond its authorization. Whereas Judge Kopf gives remarkable deference to police safety and imputes pure motives to judgment calls at the expense of constitutional rights, Orin draws a clear line where the Constitution would require one.
The discussion devolves from there, fortunately not reaching Godwin’s Law, though close. Unsurprisingly, I agree wholeheartedly with Orin’s doctrinal analysis, that the instant the justification for the stop ends, the individual’s constitutional right to be left alone takes precedence. Any further action by police is unconstitutional. Which is why, I add, the bright line rule will give rise to police shenanigans to circumvent it.
But rarely (by which I mean never) has there been as clear an expression of legal realism (by which I mean, how the judge will rule) in contrast to doctrine. I suspect Judge Kopf has given us the gift of insight into how most judges view this facial violation of constitutional rights based upon the combination of the vicissitudes of police work, deference to police safety (whether real or presumed) and a general apathy toward the rights of ordinary people to be left alone. Remember when the judge says “meh”?
Much as this exchange will outrage many, this is as frank and real a view as it gets. Nothing sweetened up for the New York Times or 60 Minutes, but raw and real. This is the blawgosphere at its best, and worst, but if you want to know how the sausage gets made, this is it.