Unreasonable Detention and Drug Dogs: The Rodriguez Decision
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 theRodriguez 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.
The 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.
The 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 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) 466-8444 for a free consultation.