Supreme Court Rejects “De Minimis” Extension of a Traffic Stop to Deploy a Drug Dog

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Yesterday, the Supreme Court decided Rodriguez v. United States, an important traffic stop case that changes North Carolina law as it pertains to certain drug dog sniffs, and perhaps other investigative techniques as well.

Facts. Just after midnight, a Nebraska law enforcement officer saw a vehicle veer onto the shoulder of a state highway, then pull back onto the road. Nebraska law prohibits driving on the shoulder, so the officer stopped the vehicle. The driver provided the officer with his license, registration, and proof of insurance. The passenger provided his license as well. License and warrant checks on both men apparently came back clean, and the officer issued a warning ticket to the driver. The officer suspected that the driver might be involved in drug activity, so he asked the driver for permission to run the officer’s drug dog around the vehicle. The driver said no. The officer then called for backup and detained the driver for a few minutes until another officer arrived. At that point, the officer walked his dog around the vehicle twice and the dog alerted. The alert led to a search and the discovery of methamphetamine. The total delay to allow the drug dog to sniff the car was seven or eight minutes.

Procedural history. The defendant was charged in federal court with possession of methamphetamine with intent to distribute. He moved to suppress. The district court denied the motion, ruling that the delay to allow the dog sniff was “de minimis” and did not implicate the Fourth Amendment. The defendant pled guilty and appealed the suppression issue. The Eighth Circuit affirmed. The Supreme Court agreed to review the case, because courts across the country have divided regarding the permissibility of brief extensions of traffic stops to conduct investigation unrelated to the original basis for the stop.

The majority. Justice Ginsburg wrote for herself and five other Justices. She concluded that a stop may not be extended beyond the time necessary to complete the “mission” of the stop, which is “to address the traffic violation that warranted the stop . . . and attend to related safety concerns.” That is, “[a]uthority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” A dog sniff is not such a task “tied to the traffic infraction,” as it is “aimed at detecting ordinary criminal wrongdoing.” Therefore, if such a sniff prologs a stop at all, it violates the Fourth Amendment. There is no exception for “de minimis” delays.

The majority remanded the case to the court of appeals to determine whether, based on facts not summarized in this post, the officer’s decision to detain the driver might have been supported by reasonable suspicion.

The dissents. Justice Thomas wrote the principal dissent, arguing (1) that the 29-minute total duration of the stop was reasonable “for a traffic stop by a single officer of a vehicle containing multiple occupants”; (2) that the majority’s rule makes the permissible duration of a stop dependent on the identity of the officer, with an efficient officer who can address the traffic infraction quickly limited to a short stop, while a slower officer is permitted additional time; (3) that the majority draws a doubtful distinction between dog sniffs (not allowed, because they target ordinary criminal activity) and warrant checks (allowed by the majority as discussed further below, though arguably also addressing criminal activity rather than roadway safety); and (4) that the majority fails to differentiate between traffic stops based on reasonable suspicion, which might be more constrained, and those based on probable cause, which constitutionally could culminate with an arrest and so may be more expansive. Justice Thomas also believed that reasonable suspicion of drug activity supported the continued detention of the driver in this case. Justices Kennedy and Alito joined Justice Thomas, with Justice Alito writing a separate dissent that makes many of the same points made by Justice Thomas.

Effect on North Carolina law. At a minimum, Rodriguez effectively overrules State v. Brimmer, 187 N.C. App. 451 (2007) (“Courts . . . have held . . . that if the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”), and State v. Sellars, 222 N.C. App. 245 (2012) (similar).

But the impact of Rodriguez extends beyond dog sniffs. If an officer can’t extend a stop to deploy a dog, he or she can’t extend the stop to ask drug-related questions or seek consent to search, either. Professor Orin Kerr argues here that the case “is more important for its impact on police asking questions than [for its impact on the] use of drug-sniffing dogs,” because dog sniffs are uncommon but questions about matters unrelated to the basis for the stop are asked “all the time.” As noted in my paper on traffic stops, which is linked here, though now I need to revise it again, North Carolina law tended not to support delays for additional questioning even before Rodriguez, but the case certainly draws a line in the sand. It remains to be seen how much general chit-chat about travel plans and the like courts will permit incident to traffic stops.

So what’s an officer to do? Although Rodriguez is mostly about what officers can’t do, it also makes clear that officers certain activities are related to the “mission” of an ordinary traffic stop, so a reasonable amount of time may be spent on these activities:

  • Checking the driver’s license, registration, and insurance
  • Checking for outstanding warrants against the driver
  • Taking actions necessary to address safety concerns, such as ordering the driver out of the vehicle

Furthermore, officers may undertake investigative activities that do not relate to the original basis of the stop so long as the activities themselves do not implicate the Fourth Amendment, and so long as they do not extend – at all – the duration of the stop.

My guess is that many officers will respond to Rodriguez by multitasking: deploying a drug dog while waiting for a response on a license check, or asking investigative questions of the driver while filling out a citation. Defendants may argue that such multitasking inherently slows an officer down, and I can imagine difficult-to-resolve factual disputes about that.

I should also note that nothing in Rodriguez changes the rule that once a stop is complete and the driver’s paperwork has been returned, the officer may seek consent to pursue further investigation.

A word about warrant checks. Finally, I wanted to touch on a point of dispute between the majority and the dissent. The majority stated that an officer may check for outstanding arrest warrants for the driver during a traffic stop. That is apparently a common law enforcement practice. But, as noted by the dissent, it does not align very well with the majority’s reasoning that a stop should stay focused on its “mission” rather than general crime detection. The majority’s justification for permitting warrant checks is that they add to roadway safety by allowing an officer to determine whether a driver is wanted for other traffic offenses. That strikes me as a pretty weak argument – how many outstanding warrants are there for speeding? Furthermore, the principal authority the majority cites for that idea is Professor LaFave’s treatise, but Professor LaFave himself doubts whether warrant checks should be permitted. Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843 (2004) (stating that “a rather compelling argument” can be made for abolishing warrant checks as insufficiently directed at the purpose of the stop, though noting that “there are at least some rational arguments” to the contrary).

A better argument might be that a warrant check is appropriate as an officer safety measure, i.e., that officers need to know whether they’re dealing with a fugitive who may have an incentive to assault, resist, or run from law enforcement. In any event, a majority of the Court has ruled that such checks are permissible, and perhaps the holding is more important than the reasoning.

20 comments on “Supreme Court Rejects “De Minimis” Extension of a Traffic Stop to Deploy a Drug Dog

  1. In some Districts in NC an Officer can hold a person for his personal convenience (shift change not wanting to do paper work and work over time) then adjust their Logs to reflect a second officer made the stop.

    • (JIM) Do you have any factual evidence to provide to this statement? Or is this an opinion. I know you are anti law enforcement or at least thats the impression I get from you after reading several of your posts. Regardless, I can say I have seen officers stay out on a call in the computer system to avoid being dispatched aka call shucking, but to say that officers hold people for personal convenience…What is the basis of this statement and how does it relate to the above topic?

      • Especially since it is virtually impossible to “adjust” anything in the CAD system. The whole system is immutable.

  2. This is a very interesting case. It sort of flies in the face of a lot of other jurisprudence we’ve been following for several years now. On the face of it, as an officer, I’m not too bothered by the fact that once a traffic stop is completed the SCOTUS says end it, don’t hold them anymore – after all, if we’ve given back your license, your warning ticket or citation or whatever, then the stop should be ended – we have officially said “no more reasonable suspicion, no more probable cause here” so things should be done. But, if additional RS or PC has been developed prior to that instant, then I don’t think this case would even apply – if you independently have probable cause to search then the dog isn’t causing a de minimis delay, because you don’t even need the dog. It is just going to confirm your probable cause. In other words, if you’re fishing this will hurt you, but if you actually have something to go on there shouldn’t be an issue.

    Procedurally, this should just encourage the investigative traffic stop officers to request a K9 at the first instant they sense they might need it, and of course, if the SCOTUS has said that 30 minutes is a reasonable time for a traffic stop, by the time you write the citation in that time frame the K9 officer should be there and sniff the car before you complete the traffic citation.

    My primary area of concern is that this could be used to limit questions officers ask of the general public during a traffic stop – where are you coming from, where you going to, etc which are used not just for drug related things, but also to help us determine alcohol impairment by being able to spend more time listening to the voice of the driver, the speech pattern of the driver, and how they react, and so forth.

    I’m not even going to pretend that the warrant issue bothers me – it doesn’t. I honestly think that’s a non-starter, because cops will always be able to search for warrants on someone they stop – it’s an officer safety issue, we need to know if you’re wanted for a murder or not before we walk back up to hand you your license. I highly doubt any court would ever think to limit that. Also, I would argue that once a traffic stop is initiated and we have your ID or license, it almost falls under the same doctrine as the justification for randomly running license plates – it’s right in front of us, so we can check it basically.

    • I agree wholeheartedly. I truly believe the only enemy of routine impairment determination questioning is lazy police work, by failing to properly articulate what, in fact, you are doing. This fact was exemplified perfectly in Arizona v. Gant, when the officer was asked a question, where he needed to explain why he searched the vehicle incident to arrest, but, instead, simply replied, “because I can.”

  3. It sounds like there’s nothing to stop officers from calling K9 backup before initiating the stop, or bringing out their own K9 on first approach to the vehicle, or issuing the citation/warning 45 minutes after the initial stop (after all their investigating and questioning and sniffing)?

    If the return of the license/registration and issuing of the citation is the end of the stop, then officers will now make that the absolute last thing they do.

    I really don’t see how this changes anything other than the order in which officers perform their actions on a traffic stop.

  4. I have to agree with Christopher above. I believe that the officers will change their routine on traffic stops that will allow them the time to speak more to the driver, before going to check on the status of the license, complete citations, record checks, ect. I also believe that with the comments made by the dissent opinion, that if an officer is able to develpoe probable cause, the delay is a non-factor. Interdiction stops will continue, and I believe that the delays, when given the proper foundation, will be allowed. I do not know all the facts of this case, but I will research it further to gain a more thorough understanding of it.

  5. There is a truth that rarely gets mentioned in cases such as Rodriguez. Traffic stops are a standard tactic in drug interdiction. Many car stops are a pretext to investigate whether there are drugs in the car. Since the Whren case, no one has to pretend otherwise. There are government-run training programs on how police can use highway traffic stops to catch drug dealers.

    The Supreme Court has to say that the mission is “ensuring that vehicles on the road are operated safely and responsibly” because it is unseemly to say “the government stops cars for traffic violations in the hope that other criminal activity, mainly drug offenses, will be discovered.”

  6. I believe the stop was indeed over prior for asking the driver to consent to a K9 sniff. Once the officer returned the license, registration, and took the enforcement action, the driver is free to leave. The officer can ask the driver to consent to a search, dog sniff, etc. as a consent search due to the officer’s official detention having been concluded. In this case, it seems the officer asked for consent in what would be then a consensual encounter. Driver denied consent. Officer should have allowed driver to leave absent reasonable articulable suspicion or probable cause. Once the driver’s documents were returned and enforcement action was taken, the situation became really no different than if the officer had stopped someone walking down the street and asked to search them.

    • I strongly agree.

  7. Excellent post.

  8. At the conclusion of a stop an officer asks if a
    driver has drugs in the car. The officer then says that if the driver doesn’t consent to a search the officer will call in a K9. As a result of the officer’s statement the driver allows a search. Is this a valid consent or coercion since the driver wouldn’t have consented but for the officer threatening to violate driver’s fourth amendment rights per Rodriguez?

    • That is unreasonable, LEOs or other forms of government officials may not detain you unless they have reasonable suspicion/probable cause etc. Which is not mentioned in this case was why the officer made that decision?

      With that said, there have been cases where officers at homes have said let me search or I’ll get a search warrant. I am against this but it has been ruled reasonable provided the officer could have been granted such warrant supported by probable cause.

  9. Can we try and remember the overall goal of police work is to keep people safe. Yes there is training on drug stops but there is other reasons for stops. Outside of legal violations, we as officers have a duty to protect lives of others. Meaning, checking information and asking questions to detect and deter other crime. Like human trafficking, kidnapping, wanted murders, rapist etc. If I let people go after something in my judgement says “something is not right” then I am a poor investigator.

    Drugs and drug trafficking are criminal acts. Officers are tasked with the very mission of prevention, detection, and prosecution of those who violate the laws.

    I get you don’t want your rights trampled on and we don’t want to trample on them. We (LEOs) have rights that we want to protect too.

    Yes, officers will more than like wait for a dog before issuing tickets etc. But let’s expand on that, I have stopped many vehicle in my 12 year career and called a dog for certain ones. Those were the folks who gave me the “something is not right” factor. They provided indicators that crime may be afoot. The fact that an officer does something simply because the can is wrong! They should do it because they have reason to believe that a crime has been or is being committed.

    With that said, how many clients have you guys had that within the 1st minutes of the conversation you thought to yourself “This person sounds like a (insert thought)”.

    Most officers do things correctly and the law is there to help them do it. If we have to temporarily hold them to do so and it is reasonably minimal, what is the issue? That is our job to investigate crime.

    I have had a vehicle unlock turn into a bust on a theft ring because I paid attention but I also articulated it in writing and in testimony which is where some of my co-workers fail. All should not be punished for the actions of few. It is unreasonable.

  10. […] Supreme Court held in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015) (discussed here), that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to […]

  11. […] Court decided Rodriguez v. United States, __ U.S. __, 135 S. Ct. 1609 (2015). I wrote about it here. In a nutshell, the Court ruled that once the purpose of a traffic stop has been addressed – or […]

  12. […] Welty wrote two posts on this important case: (1) a summary of the ruling here; and (2) a July 2015 post here on how courts in other jurisdictions were applying the ruling in […]

  13. It should be noted that an officer does not have to do an additional Warrant check on an individual. When the Driver’s License number is ran through NCIC, it also informs the officer if there is an outstanding warrant on that person. All the information comes back together.

  14. […] in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (April 21, 2015) (discussed in a prior post) that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to […]

  15. […] still proliferating. And so have our faculty’s blog posts: Jeff Welty has written relevant posts here, here, here, here, and here, Alyson Grine here and here, Shea Denning here, Phil Dixon here, and my […]

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