Yesterday the
Supreme Court, which last year decided
two important cases involving drug-detecting dogs,
agreed to hear another one. Rodriguez v.
U.S. asks the Court to elaborate on its reasoning in the
2005 case
Illinois v. Caballes, where it said police are free to
use drug-sniffing dogs during routine traffic stops but suggested
stops that are “unreasonably prolonged” to facilitate such
inspections would violate the Fourth Amendment.
Rodriguez poses the question of how long a delay must
be to cross that line.
The case involves Dennys Rodriguez, who was pulled over in 2012
on Highway 275 in Nebraska after he swerved onto the shoulder of
the road (to avoid a pothole, according to Rodriguez). Morgan
Struble, the Valley, Nebraska, police officer who stopped him, gave
him a warning, at which point Rodriguez should have been free to
go. But Struble, after unsuccessfully seeking permission to walk a
drug-sniffing dog around the car, detained Rodriguez another seven
or eight minutes, waiting for a deputy sheriff to arrive. Although
Struble had a dog in his patrol car, he did not want to bring it
out until he had another officer to back him up. After the deputy
arrived, Struble walked the dog around the car, it alerted, and the
cops searched the car, finding a bag of methamphetamine.
In January the U.S. Court of Appeals for the 8th Circuit
ruled
that “the traffic stop was not unreasonably prolonged.” The delay
of seven or eight minutes, it said, had no constitutional
significance, amounting to a “a de minimis intrusion on Rodriguez’s
personal liberty.” The fact that the Supreme Court agreed to hear
the case suggests that at least a few justices may disagree.
If so, it would be a welcome deviation from the deference the
justices have almost always shown to police and their canine
collaborators. Last year, in
Florida v. Harris, the Court unanimously ruled that a
police dog’s alert, which may be erroneous, imagined, invented, or
deliberately triggered, by itself is enough to justify a search
unless the defendant can show the dog is unreliable—a tall order
when the evidence on that point is controlled by the police, who
have little incentive to collect it. Combined with earlier
decisions saying police are not conducting a search when they use
dogs to detect contraband and therefore can do so without any
evidence of criminal activity, Harris in practice
gave cops with dogs
a license to search vehicles at will. But since not all cops
have dogs, there is still a practical limit on this power. That
limit will be eroded or eliminated if an officer, after issuing a
warning or citation, can continue to detain a driver until a dog
arrives.
The
forfeiture case I discussed the other day, in which Iowa state
troopers took $100,000 in poker winnings from two players driving
through the state, illustrates the danger. The trooper who stopped
the car did not have a dog, so he had to wait for one. As in
Rodriguez’s case, he dragged out the encounter after issuing a
warning by asking for permission to walk a dog around the car.
After the driver repeatedly said no, the trooper detained him
anyway, ostensibly because the driver seemed nervous (an
all-purpose excuse to detain anyone stopped by police). If the
trooper had let the driver go after issuing a warning, there would
have been no purported dog alert to justify the search that
discovered the money.
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