On April 21st, in
Rodriguez v. The United States, the United States Supreme Court held that without reasonable suspicion,
a traffic stop that is extended in order to conduct a drug dog sniff is
an unreasonable seizure. This means that unless an officer has more than
just a hunch that criminal activity is afoot, the officer cannot continue
to detain the person in order to run a drug dog around the person’s
car. While it may seem as though the
Rodriguez opinion means that a law enforcement officer cannot run a drug dog around
a vehicle, that is not necessarily the case.
During the early hours of March 27th, 2012, police officer Morgan Struble
witnessed a vehicle swerve onto the shoulder of Highway 275, a violation
of Nebraska state law. Officer Struble stopped the vehicle, obtained relevant
documents from Rodriguez, and went back to his cruiser to run a records
check. Officer Struble then returned the documents to Rodriguez and repeated
the process with Scott Pollman, a passenger in the vehicle. While checking
Pollman’s records, Officer Struble radioed for a second officer
and began writing a warning ticket for Rodriguez for driving on the shoulder.
Officer Struble returned the documents to Rodriguez and Pollman, explained
the warning, and concluded the traffic stop. At this point, Officer Struble
asked Rodriguez for permission to run a drug dog around the vehicle. Rodriguez
said no. Despite the denial, Officer Struble required Rodriguez and Pollman
to wait until the second officer arrived at which point Officer Struble
ran the dog around Rodriguez’s vehicle. The dog alerted to the scent
of narcotics, the vehicle was searched, and a bag of methamphetamine was found.
Prior to trial, Rodriguez filed a motion to suppress arguing that Officer
Struble did not have reasonable suspicion to detain Rodriguez beyond the
traffic stop and that the detention was an unreasonable seizure in violation
of the 4th Amendment. While the Magistrate Judge agreed that Officer Struble
did not have reasonable suspicion to detain Rodriguez, he held that the
seven to eight minute delay between the end of the traffic stop and the
dog sniff was a minimal intrusion and was thus permissible. Rodriguez’s
motion to suppress was denied, a decision upheld on appeal to the Eighth Circuit.
In order to resolve what is referred to as a “circuit split”,
which occurs when U.S. Courts of Appeals circuits disagree about legal
questions, the U.S. Supreme Court decided to hear the
Rodriguez case. In a 6-to-3 decision, the Court held that “Absent reasonable
suspicion, police extension of a traffic stop in order to conduct a dog
sniff violates the Constitution’s shield against unreasonable seizures.”
In analyzing this holding, there are two important issues: (1) What is
reasonable suspicion? and (2) What constitutes an “extension”
of a traffic stop?
Reasonable suspicion is an officer’s belief that someone is engaged
in criminal activity. This belief must be more than just a hunch and needs
to be supported by “articulable facts”.
See United States v. Morgan, 729 F.3d 1086. Facts commonly cited by officers as giving them reasonable
suspicion of drug activity include the use of a rental car, odd travel
plans, inconsistent statements, multiple air fresheners in the car, the
use of pay-as-you-go “throw away” cell phones, extensive trash
in the vehicle, travel to and from a known drug source or destination
area (officers will say that almost any area is a known drug source or
destination), and occupants appearing unkept. Sometimes, courts look at
the circumstances and decide that the officer did have reasonable suspicion
that criminal activity was afoot. Other times, however, the court determines
that the facts instead “describe a very broad category of predominantly
innocent travelers” and that the officer’s reasonable suspicion
was not based upon sufficient articulable facts.
See United States v. Beck, 140 F.3d 1129. It is important to remember that the fact drugs or other
illegal contraband was found does not give support to the officer’s
reasonable suspicion. The important inquiry is whether or not the officer
had reasonable suspicion BEFORE a person was further detained, regardless
of what is later found. Thus, in Rodriguez’s case, the fact methamphetamine
was found has no bearing on whether Officer Struble had reasonable suspicion
to continue to detain Rodriguez beyond the traffic stop.
A second important issue raised in
Rodriguez centers around the traffic stop: How long should it take and at what point
it is finished. In answering these questions,
Rodriguez opinion states that the legal detention of a person in order to effectuate
a traffic stop “...ends when tasks tied to the traffic infraction
are–or reasonably should have been–completed.” Basically,
the stop is finished when all of the allowed investigative procedures
are completed, such as ascertaining the identification of the driver,
checking for outstanding warrants, and ensuring the car is properly licensed
and registered, and the driver is issued a warning or citation.
Often, immediately after the stop is finished, the officer will ask the
driver if the driver would mind answering a few questions, usually whether
the vehicle contains any drugs, weapons, or large amounts of currency.
Furthermore, the officer will usually ask if he can search the vehicle,
run a drug dog around the vehicle, or both. This is a critical juncture
because a person detained as part of a traffic stop does not have to give
consent to a search of the car or a drug sniff. This is important for
two reasons: (1) Once an officer completes the traffic stop, he does not
have to tell the driver that the driver is free to leave before asking
for consent to search.
See Ohio v. Robinette, 519 U.S. 33. (2) The officer may tell the driver that the officer is
going to search the vehicle or run the dog around anyway. If the driver
does not give consent, and contraband is found, the lack of consent may
be used to argue that the seizure of the driver and search of the vehicle
violated the 4th Amendment and thus the evidence must be suppressed. If
the driver gives consent, however, it becomes much more difficult to argue
that the search and seizure was a violation.
Rodriguez case highlights why a driver should decline to give consent to search.
Had Rodriguez given consent, the fact that Officer Struble lacked reasonable
suspicion to hold Rodriguez beyond the time necessary to complete the
traffic stop would have been a moot point. Because Rodriguez declined
consent, however, he was able to argue that his continued detention was
a prolonged seizure not supported by the reasonable suspicion necessary
to render that detention legal.
Rodriguez case does not mean that an officer cannot, under any circumstances, run
a drug dog around a vehicle. There are two ways a person can be detained
beyond a traffic stop for the purpose of running a drug dog around a vehicle:
(1) During the traffic stop the officer develops reasonable suspicion;
or (2) The driver gives consent to search. While it may be possible to
argue that the search and seizure violated the 4th Amendment, either of
these two scenarios makes it much more difficult to do so. It is worth
noting that if there are two officers and a dog present during the traffic
stop, it is likely Constitutionally-permissible for one officer to conduct
the traffic stop while the other officer walks the dog around the car. The
Rodriguez decision does not discuss this fact pattern.
In summation, the
Rodriguez case holds that if a driver does not consent, or the officer does not
have reasonable suspicion to continue to detain the driver beyond the
time reasonably necessary to conduct a traffic stop, prolonged detention
for the purpose of deploying a drug dog is an unreasonable seizure in
violation of the 4th Amendment. The attorneys at Berry Law Firm have successfully
made the same argument as in
Rodriguez and understand the unique issues that arise during a drug stop. Give them
a call at 402-817-6550 for a free consultation.