Doctrine v. Realism: Naked Mudwrestling At Its Best

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.


22 comments on “Doctrine v. Realism: Naked Mudwrestling At Its Best

  1. Orin Kerr

    Scott, how does Judge Kopf’s view implicate “legal realism” vs. “doctrine”? Lower courts have disagreed on what the doctrine is, which is why the Supreme Court agreed to review the issue and settle the disagreement. And neither Judge Kopf nor myself were trying to predict what the 9 Justices would do. To be fair, Judge Kopf has indicated how he would personally rule if he were on the Supreme Court. But I don’t follow how that makes his personal preference “legal realism,,” as Kopf is no more on the Supreme Court than you are.

    1. SHG Post author

      The realism has to do with the outcome when this argument is made at a suppression hearing, regardless of doctrinal considerations. Realism is what happens in the trenches, not on appeal when the ugliness is sanitized for the sake of published opinions.

      Regardless of the doctrine the Supremes settle on (and I agree with your view of the correct doctrine and that it is important that the doctrine be correct), cops will come up with a million excuses to circumvent it and judges in the trenches will buy their excuses, rendering it all a great exercise in thoughtful legal analysis and futility. That’s the realism.

      1. Orin Kerr

        It seems to me that the key insight is yours, not Kopf’s: You’ve pointing out the really tricky issue in Rodriguez is that an officer can add time to the stop before ending it, which makes time delay much harder to regulate on the back end of what happens when the stop is over. But that important practical point is presumably going to be a significant focus of the briefing and argument in Rodriguez.

        1. SHG Post author

          I point that out because I am *ahem* occasionally a tad cynical. I don’t think judges believe, or want to believe, it’s quite as contrived as I foresee, because it makes their job awkward and unpleasant. Sure, they know the rules are gamed, but they still believe (as I suspect do you) that the odds still favor the police and it’s generally beneficial to cut them some slack, provided it doesn’t get put into black and white in an opinion.

          But Judge Kopf’s comments provide me with a key insight: I can argue until I’m blue in the face that the cops’ stories about refusing dog sniffs or sitting in the cruiser raised safety concerns, never happened before, and gave rise to secondary suspicion, is all a total load of facile manufactured crap. And I will lose.

        2. Ted H.

          I disagree that either party here had a key insight over another. They both had the same insight that the practicality of doctrine for a given situation is suspect at both at the factual and (primarily for you and Kopf) the procedural level re: cert. I think pragmatics re: linguistics came into play here due to an ignorance of the schools of legal theory bandied about. To me, Legal Lealism is the recognition that doctrine cannot be applied perfectly and pragmatism attempts to provide a vehicle for a more equitable application of doctrine in light of the complexities at play in every distinct situation. Here we have a classical idealist and two opposing views of the most equitable dispensation of doctrine in light of the situation at hand.

            1. Ted H.

              Kerr quoted the theory terms in his earlier post so I just thought I’d chime in. You and Kopf are just on different sides of the same coin is all.

            2. SHG Post author

              Since self-assessment is notoriously unreliable, I leave that to others to decide. Not that it makes much difference.

            3. Ted H.

              Oh ha. I was referring to the judge and the professor. I’ve enjoyed the generally cordial and witty atmosphere of the comments here.

  2. John Barleycorn

    War, it ain’t nothing but a heartbreaker.

    Interdiction is a military term meaning to delay, disrupt and destroy enemy forces and their supply routes.

    Good afternoon sir.

    Driving through a storm of locusts is no excuse for a violation of the law and I noticed your __________is ________that is reason I pulled you over but before I write you a citation for the ___________ infraction I need to go through these here 1,776 bullet points on my highway worthiness check list would you mind stepping out of your vehicle?


    It’s just a safety precaution sir. But before we begin with the highway worthiness check list I just need to ask you a few hundred questions.

    I see you have a spare tire with you today. Where are you traveling to today that had you think you might need a spare tire?

  3. dpd


    Having a conversation with Professor Kerr about what takes place in the trenches is like engaging Bill Gates in a conversation about it is like to survive on food stamps. Kerr’s world is dominated by thoretically applicable doctrine. While yours is spent in the trenches of the NYC criminal courts — where many (if not all) in power don’t give a hoot about the doctrine that Kerr worships.

    Perhaps you can invite Kerr to leave the ivory tower world of D.C. academia and join you for a cup of java at 163rd Street and The Grand Concourse to continue your (civil) debate? Or perhaps not.


    1. SHG Post author

      In fairness to Orin, his primary job may be prawf, but he’s spent some time in the trenches with real people and done pretty well. He’s an academic with chops. And I’m sure he would fit right in having a beer at the Yankee Clipper.

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  6. Peter Gerdes

    I think everyone here misses an important point about how law operates in the real world. Yes, given the current set of relevant factors it may be that the doctrinal result that a cop can’t further detain a car after the ticket has been processed is totally impotent.

    However, the practical result is not what happens when you apply the doctrinal result to the current fact pattern. The practical result is the one that occurs after both citizens and cops adjust their behavior to reflect the incentives of the new rule.

    For instance, many decisions that limited police powers are totally impotent…except people realized that police were violating these rules and have started video taping interactions or advocating for an always on police video.

    Imagine that the supreme court adopted a bright line rule requiring the police to release the individual the moment the ticket was processed and that the ticket had to be processed in a prompt fashion. Maybe your average driver doesn’t change their behavior at all but your drug dealer has every incentive to avail himself of all the protections of the exclusionary rule so starts putting tiny cameras in his car or defense attorneys simply start subpeoning video records of traffic stops in that area. Someone will eventually find it useful to do a study analyzing the distribution of ticket processing times.

    So sure, the police officer who stops you can still take double the normal time to right a ticket but once they go beyond that point they start getting evidence suppressed. The combination of a video or computer log/dispatch log showing the officer doing nothing for a length of time, combined with evidence that the time to process the ticket occurred was greater than that in 95% of cases (including those in which other business came up) or better yet evidence showing that in (at least in the time discoverable into the past and on stops from discovery until the trial) the officer’s stops in which he called a drug dog to the scene were statistically much longer (99.9% significance) than those he did not.

    Sure, maybe the officer wins some of those but loses others. Still, practically speaking the cost to the government of the longer stop compared to any benefit decreases substantially (prosecutions that end with suppressed evidence are expensive). In practice it won’t be worth it to an officer to delay anyone more than a certain amount.

    This effect becomes even more clear if you include the effect of grudge suits. Sometimes the guy in the dumpy car and frumpy outfit is just a poor bloke, sometimes he’s a law professor who holds a grudge and as a result of the doctrinal holding can break qualified immunity. Worse, maybe he’s a black harvard professor who can use the issue of prompt ticket processing to leveraged the discovery process to demonstrate the officer is profiling minorities putting his job or city reputation at stake.

    I tend to agree with your cynicism but you have to apply it equally and comprehensively. The police don’t *wan’t* to wait around for no reasons and the criminals and blokes with a chip on their shoulder are just as able to adjust behavior to utilize a doctrinal result. As a result even impotent doctrinal defense wins can ultimately serve as a platform to limit, though not eliminate, the practical extent of police violations of constitutional law.

    1. SHG Post author

      TL;dr. I would note, having read your first line, however, that it’s curious that a non-lawyer feels entitled to explain to real lawyers and real judges how law works in the real world.

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