“License, registration, and dog sniff, please?” After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal government’s position in Rodriguez v. United States would “lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want.” Assistant to the Solicitor General Ginger Anders responded that “I don’t think that’s how we envision” things, but she then suggested that only the “duration of a routine traffic stop … under the circumstances” defines the Fourth Amendment’s “reasonable” limit. This did not answer the question that Justice Anthony Kennedy asked early on: “how do you define the traffic stop?” But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguez’s attorney, Shannon O’Connor – the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguez’s car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower court’s finding that there was no “reasonable suspicion” for the dog-sniff detention, but it ruled that a “de minimis” delay to conduct a dog sniff is okay. Since the Court’s 2005 ruling in Caballes that a dog sniff conducted “simultaneously” with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesday’s argument. First, a dog sniff of a car stopped for a traffic violation is “extraneous” to the purpose of – that is, not an “ordinary incident of” — a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the “mission” of the traffic stop have been routinely upheld, starting with the standard opening “license and registration, please” and extending, as in Rodriguez’s case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions “part of the mission and the dog sniff is not?” But Anders wisely conceded that she was not arguing that a dog sniff should be considered an “ordinary incident” of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Court’s 2000 decision ruling that routine “drug checkpoints” employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during O’Connor’s argument (to “laughter”) that “people have told me” what happens “when you’re stopped.” Justice Sonia Sotomayor later began Anders’s argument by saying “and Chief, I’ve been stopped,” to which Anders quickly responded, “so have I.” The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, “our experience on stops comes from, unfortunately, being the stoppee.”)

A second point that appears clear from yesterday’s argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment “search.” Justice Sotomayor appeared to raise this “fundamental question” briefly – “is that really what the Fourth Amendment should permit?” – but then quickly suggested that the Court should “cabin” it to Caballes’s “simultaneous with writing the ticket” holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of “search” that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices – the Chief Justice and Justices Scalia Kagan in particular — appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing “that Caballes gives you … extra leeway to detain people …. I think that’s just not right.” Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether “[i]t’s only a violation of the Fourth Amendment for two minutes, right?” And Justice Scalia later interjected, apparently along the same rhetorical line, “it can prolong it a little bit.”

At one point, Justice Breyer began a question for Anders with the announcement that “I have a great idea.” Reading this, I initially imagined everyone was groaning – but then Justice Breyer’s idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop “cannot last longer than is necessary to effectuate the purpose of the stop,” or that a stop cannot be “unnecessarily prolonged.” He explained that these were not new ideas – “what an original idea I had,” he noted with irony – and that “after we cite these two cases …, [we] reverse. …QED, goodbye.” And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although O’Connor urged the Court to decide that question itself “for judicial economy,” no Justice seemed likely to agree.

One final point, about Terry v. Ohio

One last point about this argument. It seemed surprising that no one mentioned the Court’s leading decision on “reasonable suspicion,” Terry v. Ohio, because it is that decision which first allowed a “stop” – a Fourth Amendment “seizure” or detention – on suspicion less than the Fourth Amendment’s textual hook “probable cause.” When allowing this in 1968, the Terry Court plainly thought it was a major extension of precedent to approve even brief detentions on less than probable cause, and the opinion seemed to tie the constitutionality of even a brief stop closely to the suspicion that led to it. So here, in a case premised on no reasonable suspicion of narcotics, approving a prolonged detention of any length for a narcotics dog sniff seems, as Justice Kagan suggested, “just not right” under Terry. And somewhat revealingly, it was at this moment that Anders found it necessary to remind the Court that it has already ruled that “a dog sniff is …. not a search.” One wonders whether the Justices, and their younger law clerks, will now go back to re-read Terry and recall just how radical even a “reasonable suspicion stop” appeared to the criminal procedure world in 1968.

Conclusion

Predicting the outcome of a case is really neither the appropriate purpose nor focus of coverage on this blog – providing knowledgeable public information about the Court and its decisions and processes is. But people invariably ask. My bet (in no large amount) would be that a majority of the Court will reverse and remand, unwilling to allow a legal universe in which suspicionless drug-dog sniffs – whether a “search” or not — become a routine “part of the mission” of traffic stops, as Justices Scalia and Alito put it. And because the Justices are likely to be divided, at least in Conference, the opinion will hew as closely to already-decided precedent as the case will allow. This seems the safest course when a clear path out of the thicket is not apparent.

Recommended Citation: Rory Little, Argument analysis: What exactly is a “routine” traffic stop, and should a suspicionless dog sniff be part of it?, SCOTUSblog (Jan. 22, 2015, 10:18 AM), https://www.scotusblog.com/2015/01/224253/