The Early Impact of Rodriguez v. United States

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About three months ago, the United States Supreme 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 reasonably should have been addressed – an officer can’t extend the stop, even briefly, for unrelated investigative activities such as drug dog sniffs, unless the officer has reasonable suspicion of criminal activity to support the continued detention.

The rule is clear enough in theory but it can give rise to some difficult questions in practice. May an officer engage in brief chit-chat with a motorist, or does such interaction constitute an extension of the stop? What about inquiring about a motorist’s travel plans, or a passenger’s, where such inquiries may bear on the likelihood of driver fatigue but also may be used to seek out inconsistencies that may be evidence of illicit activity? May an officer comply with Rodriguez by multi-tasking, i.e., by asking unrelated questions while examining a driver’s license, or does multi-tasking inherently slow an officer down and so extend a stop?

Courts across the country are beginning to address some of these questions. This post summarizes the early impact of Rodriguez.

It applies to questioning, not just dog sniffs. Although Rodriguez concerned a stop that was extended to allow a drug dog to sniff a car, rather than a stop that was extended to allow the officer to ask unrelated questions of an occupant of the vehicle, the Court’s opinion indicates that a stop may not be extended for any kind of unrelated investigation without reasonable suspicion. See, e.g., Rodriguez, 135 S.Ct. at 1614 (“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.”). Lower courts have applied the case outside the dog sniff context. See, e.g., United States v. Archuleta, __ Fed. Appx. __, 2015 WL 4296639 (10th Cir. July 16, 2015) (citing Rodriguez while ruling that a bicycle stop was improperly prolonged “in order to ask a few additional questions” unrelated to the bicycle law violations that prompted the stop);  Amanuel v. Soares, 2015 WL 3523173 (N.D. Cal. June 3, 2015) (unpublished) (extending a traffic stop by 10 minutes to discuss a passenger’s criminal history, ask whether the passenger had been subpoenaed to an upcoming criminal trial, and caution the passenger against perjuring himself, would amount to an improper extension of the stop in violation of Rodriguez); United States v. Kendrick, 2015 WL 2356890 (W.D.N.Y. May 15, 2015) (unpublished) (agreeing that “absent a reasonable suspicion of criminal activity, extending the stop . . . in order to conduct further questioning of the driver and the occupants about matters unrelated to the purpose of the traffic stop would appear to violate the . . . rule announced in Rodriguez,” though finding that reasonable suspicion was present in the case under consideration).

What inquiries are related to the purpose of a routine traffic stop? The Rodriguez Court stated that an officer may conduct the ordinary inquiries incident to a traffic stop, including “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez, 135 S.Ct. at 1615. A few cases have addressed what counts as an ordinary traffic-related inquiry.

  • Asking about travel plans. In United States v. Iturbe-Gonzalez, __ F.Supp.3d __, 2015 WL 1843046 (D. Mont. April 23, 2015), the court indicated that an officer may make “traffic safety-related inquiries of a general nature [including about the driver’s] travel plans and travel objectives,” and said that “any suggestion to the contrary would ask that officers issuing traffic violations temporarily become traffic ticket automatons while processing a traffic violation, as opposed to human beings.” While a question or two about travel plans may be sufficiently related to the purpose of a traffic stop, a court might take a different view of an officer’s extended discussion of itineraries with multiple vehicle occupants.
  • “Ex-felon registration check[s].” In United States v. Evans, 786 F.3d 779 (9th Cir. 2015), the court ruled that an officer improperly extended a traffic stop to conduct an “ex-felon registration check,” a procedure that inquired into a subject’s criminal history and determined whether he had registered his address with the sheriff as required for certain offenders in the state in which the stop took place. The court reasoned that the check appeared to be directed at finding evidence of ordinary criminal wrongdoing, i.e., a failure to register, not enhancing traffic safety.
  • Seeking consent to search. The Rodriguez Court did not directly address requests for consent to search, but such requests are not ordinary incidents of routine traffic stops. Thus, in United States v. Hight, 2105 WL 4239003 (D. Colo. June 29, 2015), an officer stopped a truck for a traffic violation. After running standard checks on the driver and talking briefly with him, the officer decided that he wanted to ask for consent to search. He called for backup and spent at least nine minutes waiting for another officer and working on a consent form. When backup arrived, the officer terminated the stop, then asked for and obtained consent. The court ruled that the nine-minute extension of the stop was improper and that it required suppression even if consent to search was obtained voluntarily after the stop ended. Hight does not address significant questions like (1) whether an officer who takes two seconds, instead of nine minutes, to ask “may I search your car?” has measurably extended the stop, and (2) whether an officer who seeks and obtains consent without extending a stop – for example, while waiting for a warrant check to be completed – may extend the stop to conduct the search without running afoul of Rodriguez. I tend to think that the answer to both questions is yes, but others may disagree.

 

Unrelated investigation without extending a stop. In my original post about Rodriguez, I speculated that:

[O]fficers 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.

Apparently, some officers are doing just that and in two early cases on point courts have accepted the officers’ approaches. See, e.g., State v. Jackson, __ N.E.3d __, 2015 WL 3824080 (Ohio Ct. App. 2015) (a traffic stop was not impermissibly extended by a dog sniff where the sniff was conducted by a different Trooper while the Trooper who initiated the stop was in the process of investigating defendant’s background and producing a traffic citation); Lewis v. State, 2015 WL 3619359, at *3 (Ga. Ct. App. June 11, 2015) (similar).

Extensions in the middle of a stop instead of at the end. The stop in Rodriguez was extended as it was coming to a close, and there are a few phrases in the Court’s opinion that could be read to limit the reach of the opinion to such cases. See, e.g., Rodriguez, 135 S.Ct. at 1612 (discussing “whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop” (emphasis added)). But overall, the opinion is pretty clear that delays unrelated to the purpose of the stop are forbidden whenever they take place. See, e.g., id. at 1616 (“The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’—i.e., adds time to—[the stop].”). At least, so concluded the court in People v. Pulling, __ N.E.3d __, 2015 WL 3764791 (Ill. Ct. App. June 17, 2015) (applying Rodriguez and finding that an officer violated by “interrupt[ing] his traffic citation preparation to conduct a free-air sniff based on an unparticularized suspicion of criminal activity”; although the sniff took place during the stop, while the sniff in Rodriguez took place at the end of the stop, “this positional difference of the point at which the sniff occurs has no impact on our ruling,” as “the dog sniff added time to the total duration of the stop at issue”).

Conclusion. Stay tuned for further developments under Rodriguez. Especially given the increasing emphasis on recording officer-citizen interactions, courts will have many more opportunities to scrutinize stops for unwarranted delays.

12 comments on “The Early Impact of Rodriguez v. United States

  1. In this day and age we are gradually coming to a crossroads in the law enforcement community; the desire to be proactive and catch criminals before they can commit serious crimes, and the desires of the community who feel that police work is infringing on their rights too rigidly.

    Sadly, it’s now easier for a cop to do the bare minimum of his job – just respond to 911 calls for service, and wait, than it is for a cop to go out there and try to be proactive and get criminals off the streets who might be illegally carrying guns, felons with guns, transporting narcotics, have warrants out for their arrest in other jurisdictions, etc.

    We saw the pendulum on proactivity swing this way in Baltimore after Freddy Gray’s death (which was related to the exact type of activity the police there had been charged with investigating – suspicious behaviors and activities related to drug and other so called “petty crimes”), and it’s only going to become more and more common throughout the country until the citizens become hyper critical of what they’ll perceive to be “lazy” police work and demand more action, which will result in proactive policing gaining popularity again until we swing back the other way. These trends seem to come and go over longer periods of time; think a decade or two.

  2. When I was a police officer I used similar tactics during my “wants & warrants” checks during traffic stops. I frequently asked a LOT of questions, particularly if the subject vehicle had out-of-state registration. I also used to ask several questions and make requests of the driver in a particular order, especially during night shifts, in order to procure further reasonable suspicion in the driver’s ability to safely operate the motor vehicle. It’s my personal belief that those officers who patrol interstate thoroughfares should be able to ask more questions concerning the subject vehicle operator’s itinerary. But, once the officer relinquishes the operator’s license to the driver and states, “you are free to leave if there are no questions,” in essence ending the stop, I see nothing wrong with asking consensual (friendly) questions of the driver to acquire itinerary plans, or if they’ve ever visited certain cities, states, or countries, how long have they been driving today, etc. In my view, there was reasonable suspicion to effect the stop so, why not ask certain “buzz questions” AFTER the officiousness of the stop and in a reasonable amount of time (2-3 min). I made countless arrests during this “personable time” and taught this type of tactic to my rookies as an FTO. I also made full utilization of the K-9 Officer, if available, as a back-up officer during stops and we worked in tandem many times. During my stops, for a limited amount of time each shift, the K-9 unit would back me during the initial driver contact so that he/she could be in close proximity to the subject vehicle which was perfectly legal. The decisions of the courts seem to restrict pro-active officers and seem to more and more favor criminality. As “Christopher” indicated, the “scales of justice” are more accurately a “pendulum.”

    • Dennis.

      Your conduct as described appears to me to be the rational behind Rodriques. Assuming everyone is a criminal that takes proactive police strategies to capture is very nieve. Your comments sound renegade. MOST CRIMINALS BREAK INTO THE JAIL. you enjoy the games you’re playing with motorist, you can lie to them, you try to trick them and law abiding citizens are left wondering why they don’t trust police? Thank God for the 4th Amendment. And Rodriques.

  3. I recently argued a suppression motion in superior court and the cornerstone was Rodriguez. Our factual pattern was that the officers had observed Defendant’s vehicle at a house he suspected of drug activity in the past but did not know the Defendant to be a drug user himself. When Defendant left the officer stopped him for a chapter 20 violation of not having a license plate tag light operational. 11 minutes the officer ran CJ Leads and did warrant checks on all 4 people in the car. No warrants. After officer discovers no warrants and license and insurance are good, he returns to the car and asks the Defendant/Driver out.

    Takes the Defendant to rear of car, of course off camera, and requests consent to search the person and the car. The officer did not smell alcohol, detect drugs or have any other suspicions and testified that he “just wanted to search the Defendant and the car.”

    Our judge denied the suppression. I believe it had merit for appeal but we obtained a favorable sentence and judgement in plea and effectively waived appeal.

    I believe that consent to search will be the defining hallmark that comes out of Rodriguez, some things are easy to use Rodriguez for but consent to search, that will be one of the primary issues that courts will need to address.

  4. I take Rodriguez to mean that you cannot detain a person during a stop longer than a normal stop, to wait for a drug dog or other investigative reason. The Courts have stated that once an officer returns the drivers “paperwork” (license, registration card, citation, ect) the stop has ended. The Court has stated that a reasonable person should know that the stop has ended when the officer gives the driver all their stuff back. If the driver engages the officer in conversation, isn’t that a voluntary encounter at that point? If it is voluntary, the stop is over and not extended. That would the the argument that has not been setteled. If the Court believes it is a violation of a person rights for the police to talk to them and does not want to the police to be able to talk to people, we are going to have a hard time policing. I believe Rodriguez will have to be addressed again for clarification. There are to many unanswered questions.

    • A consensual encounter is when a cop approaches someone to talk , as anyone can do , but the person approached must feel free to leave and not speak . In a traffic stop, a seizure occurs, for 4th Amendment purposes , and the person is not free to leave until allowed to do so . How many motorists, especially those with something to hide, are going to prolong the stop and reengage the officer after being cut loose ? That is not the issue: The issue is police stalling and using the public’s reluctance to ignore people speaking to them and their fear that ignoring the cops questions will cause them trouble . The public needs to be educated about their right to refuse to engage in consensual encounters with police and when a seizure begins and ends .

  5. I have no sympathy for drug dealers. Drug abuse in this country is a rot on society as well as the on the drug users and their families. HOWEVER,

    I have been an attorney since 1986, and I have experienced professionally how the War on Drugs has “corrupted” law enforcement and prosecutorial agencies, not in the traditional sense of corruption but in the moral sense by violating laws, rules, procedures and most importantly civil liberties in their pursuit of the “big catch.”

    Law enforcement and prosecutors have lost their moral way. As an example of what I am talking about, read the opinion of Federal Court Judge Larry Hicks, US District Court, Nevada District, entitled “US v. $167,070,00” 3:13-CV-00324-LRH-VPC. Note the lies and omissions made by the two police officers to accomplish their goal as well as the misrepresentation to the Court by the US Attorney in its Motion for Summary Judgment to seek forfeiture of the found money. This case is post-Rodriguez and hopefully Rodriguez and cases like the Nevada one will have a positive impact upon government law enforcement entities, but I am not optimistic.

    Every time I see a police vehicle with a sign on the rear or side “this vehicle purchased with the illegal drug proceeds” I wonder what civil liberties were broken to seize the money.

    • Dear Prof. Welty,
      I sent this reply once but it looks like it did not stick. I received the email from Mr. Rohr and have promptly corrected the blog entry which used a portion of a brief from a student who did not credit your research. My apologies, Paul Ksicinski

      • Mr. Ksicinski, sorry I didn’t see and approve this comment earlier. No problem, things happen. Thanks for addressing the issue.

    • I tried to post a note to the blog author that it appeared he had plagiarized, but he deleted my post. Which speaks volumes, in my opinion. [Editor’s note — thanks for pointing this out, and see the comment from the other blog’s author, who now appears to have addressed this issue on his blog.]

  6. […] 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 posts […]

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