At Volokh Conspiracy, Orin Kerr discusses oral argument in the Rodriguez case, which apparently departed from its stated issue (how long after the completion of a traffic stop may a person be detained for the purpose of conducting a dog sniff).  Both Orin and I agreed that the only doctrinal answer was that upon completion of the traffic stop, there was no constitutional basis to continue to detain a person, and no further detention, even de minimis, could be permitted.

The notable aspect of the argument is that the Justices were more interested in the broad issue of how long traffic stops can last than the narrow question raised in the cert petition. I read the cert petition as raising a pretty specific question: When a traffic stop is over, can the government extend the stop for a dog sniff, and if so, for how long? The narrow cert grant posed a bit of a problem because the Supreme Court has said little about how long traffic stops can extend generally. Without a theory of how long stops can last generally, it may be hard to answer what to do with specific question of delays at the end of a stop. As a result, several of the Justices wanted a general test for how long traffic stops should extend.

Rodriguez’s counsel got caught short, not anticipating that argument would head in this direction.  It’s actually an excellent question and one that must be answered if there is to be given any meaning to when the traffic stop is done and the extension begins.  After all, the entirety of the stop can be easily gamed if the cop simply holds the driver’s license and registration until the dog arrives, whether that takes ten minutes or two hours. 

Why let the officer extend the stop without cause? We wouldn’t let an officer extend a stop because he wanted to take a cigarette break. Once we recognize that — which Anders rightly did — why allow an officer to extend a stop to wait for the dogs? To Anders, the difference was that there is a law enforcement purpose in bringing over the dogs even if there is no cause for doing so. The answer returned to one of the core questions the Justices had: If we’re going to say that the length of a traffic stop is reasonable based on some sort of core mission of the stop, how do we define the “core mission” of the stop?

The objective basis for determining how long a traffic stop should last should be based on what a stop properly entails, how long it takes to accomplish it, and when it should be complete.  After all, if checking a police database to make sure the license, registration and insurance are valid, then filling out the ticket, and handing it over, should that take ten minutes or two hours?   And what if there is a question about the papers, such as the insurance not appearing in the database?  If the stop was for speeding, but no accident occurred, can the officer take a few hours to confirm the validity of the insurance?  And the dog just happens to arrive within that time?

As Orin explains, the core mission isn’t really very hard to define, which makes things outside the core mission similarly clear:

With this “core mission” defined, we can see that some other things that might happen during a stop, such as asking questions to try to generate consent to a search, or bringing out the drug sniffing dogs, are outside that core mission. Under Caballes, the Court allows such steps to occur so long as they don’t extend the length of the stop. And under Whren, the Court allows such steps even if they’re the real reason the officer made the stop. But those steps are nonetheless outside the core mission of the stop.

Using the argument that the Court wouldn’t approve an extension of a stop to allow a cop to have a smoke, why then extend the time to allow for any activity outside the core mission?

There are two answers to this question: first, that any extension of the stop beyond the core mission is unconstitutional. Second, because it’s reasonable.  And this is where Radley Balko’s astute observation about the Supreme Court comes into play:

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court…

What’s missing from that career trajectory is any real experience in criminal law.

There are two aspects of the experience of Supreme Court justices that come into play in making their decision in Rodriguez, not to mention a great many other cases.  They don’t, as a group, get stopped by cops enough. Scalia is an exception, but even so, I suspect he’s treated a bit better than, say, a black teenager. The second is that, in their mind, even if a dog sniff was done (which would never happen, of course, to someone like them), the dog wouldn’t alert. So a few minutes, no alert, no harm, no foul, society is protected. What’s the problem?

There has been precious little thought given to what a traffic stop should really be about, as the courts have approved mission creep of all manner, from seeking consent to search for no reason to the dreaded dog sniffs.  What hasn’t been taken seriously is the seizure of the person during the course of these stops, which find their justification only in safety on the road, plus some revenue issues surrounding paying for paperwork and insurance.

Yet, far more people have their constitutional right to be left alone impaired by a traffic stop than any other type of police intrusion.  Orin’s analysis is both doctrinally and practically spot on, but will the justices appreciate why this matters to ordinary people?  Will they care that what they may perceive as de minimis can prove disastrous to regular folks?