Of course, as with every defense win in Fourth Amendment law, some will criticize the opinion for not going far enough.
— Orin Kerr, Volokh Conspiracy, April 21, 2015
It’s a sad day when a law professor grows so cynical that he anticipates complaints with a Supreme Court win for the Constitution, and yet Rodriguez v. United States is, without a doubt, a “defense win.” The problem, because there always is a problem, is that the Court’s answer to one question reveals the difference between law in theory and law on the street.
The Court held that the “core mission” of a traffic stop is pretty much what one would expect it to be:
Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. See Delaware v. Prouse, 440 U. S. 648, 658–660 (1979). See also 4 W. LaFave, Search and Seizure §9.3(c), pp. 507–517 (5th ed. 2012). These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.
And of course, issuing a citation or not, as the officer choses. Having a dog sniff the vehicle is “not fairly characterized as part of the officer’s traffic mission.” Then again, neither is checking for outstanding warrants, but Justice Ruth Bader Ginsburg snuck that in anyway, because precedent, even though it’s got nothing to do with vehicle safety on the road.
Once the core mission is completed, or reasonably should have been completed, the authority for the stop ends and, well, that’s that.
Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.”
There is no de minimis exception to prolonging a stop for the purpose of having a dog sniff, though there remains an exception for prolonging the stop for “the government’s ‘legitimate and weighty’ interest in officer safety,” per Pennsylvania v. Mimms, because precedent, even though “officer safety” is never mentioned in the Constitution and it’s entirely inconsistent with the rule in Rodriguez. And let’s not go anywhere near the efficacy of a dog sniff as evidence of probable cause, because precedent, and the justices just love them some puppies.
The upshot is that a traffic stop, even when pretextual, because precedent, cannot be prolonged beyond the performance of the core mission. There is no de minimis extension, whether seven minutes or two seconds, and upon completion of the stop, the authority ends.
And so what? How long should it take for a police officer to complete the core mission of a traffic stop? The Supremes say it’s the actual time, rejecting the government’s argument that if they do it really fast, they get bonus time to bring in the dogs, or the reasonable amount of time it should take.
How long would that be? Is it ten minutes or three hours? And before they hand over the ticket, they remain free to do as they please, whether to question the driver or passenger about anything that strikes their fancy, obtain consent, threaten to take their babies or cash, or, TA DA!, bring in the dogs to sniff to their doggie hearts content.
The argument against a de minimis delay, aside from it being de minimis and thus unworthy of judicial notice because it’s only a citizen’s life involved, is that it was reasonable, because reasonable is whatever doesn’t get a judge bent out of shape. An extra seven minutes to win the War on Drugs with an unintrusive dog sniff? What’s the big deal? When catching criminals is more valuable than preserving and defending a citizen’s right to be left alone when there is no lawful basis to perpetuate a stop, it’s no big deal at all.
So the Court could easily have decided Rodriguez by abandoning all reason and rationalizing it with its other precedent, most of which turns a blind eye to core mission and legitimate justification under law, and instead shrugged and held, “what’s the big deal?” And it didn’t. Instead, the Court issued a principled ruling that the police officer’s authority to seize a person ends when the core mission is done. Hooray. Orin Kerr is really very cynical.
But then, there is the takeaway. Have the dog there before you hand over the ticket and you get a sniff, no Constitution allowed. Don’t rush the ticket, because nobody knows how long it does, or should, take to complete the core mission. And if the dog happens to show before it’s done, boom, lawful.
Ask those Frisbee questions before you hand over the paperwork. Seek consent while you still have the driver’s license in hand. Smell the car for that “pungent” odor, peer knowingly for that furtive gesture, or stare carefully for those watery and lethargic eyes, before you hand over the papers.
Orin, in his thorough discussion of the decision, notes:
If that’s right, the officer’s incentive is to ask incriminating questions, request consent, etc., early on in the stop to avoid getting close to the line. At the end of the stop, when the officer is handing back the driver’s license and maybe writing a ticket or a warning, the officer still can ask questions unrelated to the stop. But at that point officer is going to be vulnerable to a Rodriguez challenge that the officer improperly delayed the stop to ask unrelated questions.
And that’s what constitutes a “defense win” at the Supreme Court these days, a roadmap for police to accomplish exactly the same outcome without violating the Court’s ruling. Why should anyone be dissatisfied that the Court didn’t go far enough?