Argument preview: Dog sniffs and traffic stops once more to the Fourth Amendment well

Prior decisions of the Supreme Court addressing the constitutionality of the use of narcotics-sniffing dogs versus other law enforcement techniques have been on a theoretical collision course for years. On Wednesday, the Court will hear argument in Rodriguez v. United States and consider aspects of the issue once again: does the Fourth Amendment restrict the use of drug-sniffing dogs by the police at a roadside traffic stop, when the officer has finished issuing any citation and the stop is prolonged for a few minutes solely to conduct the dog sniff?

The nuances of simple facts

As in many Fourth Amendment cases, although the facts in Rodriguez are relatively simple they raise difficult theoretical questions which often turn on nuances about the details. One evening shortly after midnight, a car being driven by Dennys Rodriguez and carrying passenger Scott Pollman was stopped by Officer Morgan Struble. Struble had observed the car drift slowly onto the shoulder of a highway and then jerk suddenly back onto the road this was concededly probable cause to believe that Nebraska traffic statutes had been violated. Coincidentally, Officer Struble was a canine officer, and he had his drug-sniffing dog with him in his patrol car.

Upon questioning, Rodriguez told Officer Struble that he had swerved to avoid a pothole; the officer found that implausible. The officer was also suspicious of the overwhelming odor of air freshener; and he thought Pollman was unusually nervous for a passenger. When the officer asked Rodriguez to come sit in the patrol car during a records check, Rodriguez asked if he was required to do so. Upon being told that he was not, Rodriguez stayed in his own car.

When the records check came back negative, the officer went back to Rodriguezs car and spoke with Pollman, a conversation that the officer later said he also found suspicious. When the officer returned to his car, this time to run a records check on Pollman, he called for a second officer to come to the scene: Officer Straube had apparently decided to conduct a dog sniff and wanted another officer as back up for safety reasons.

Officer Struble then went back to Rodriguezs car, returned all documents to both men, and issued Rodriguez a written warning. At this point the stop of the car for traffic reasons appears to have been over. Officer Struble then asked for permission to walk his dog around the car. When Rodriguez refused, Officer Struble ordered him out of the car. This also concededly appears to be a moment of Fourth Amendment detention. They waited for the second officer, and when that officer arrived the dog sniff was conducted. The dog alerted within a few seconds. A search of the car yielded a bag of methamphetamine and the case went federal. Undisputedly, about seven or eight minutes elapsed from when Officer Struble gave Rodriguez the written warning until the dog alerted.

The federal magistrate found that the facts did not add up to reasonable suspicion once the traffic stop was over. Nevertheless, he recommended against suppression because the delay to conduct the dog sniff was a de minimis intrusion under Eighth Circuit precedent. The federal district court agreed, Rodriguez then pled guilty conditionally, and on appeal the Eighth Circuit affirmed.

Thus the question whether the Fourth Amendment permits an eight-minute detention, after a valid traffic stop has been completed, to conduct a dog sniff, seems clearly presented. More generally, the question whether (and for how long) a traffic stop may be prolonged, for reasons unrelated to the traffic violation itself, has divided lower courts. Note however, that the question in Rodriguez is premised on the assumption that the officer on the facts of this case did not have reasonable suspicion regarding narcotics. In addition to arguing that the dog-sniff detention was reasonable under the Fourth Amendment, the United States also argues that the Court could alternatively find that there was, as a matter of law, reasonable suspicion here. If the Court were to accept that view, then the detention for dog sniff without suspicion question would presumably be moot. But given the views of the trial judges, this alternative seems unlikely (although it could be open if there were a reversal for Rodriguez and remand).

The constitutional collision course

Heres a brief sketch of the constitutional debate regarding dog sniffs. The Fourth Amendment concept of a search is a constitutional trigger for inquiring into further requirements (probable cause, reasonable suspicion, possibly a search warrant, or some recognized exception). Absent a search (or seizure), officers are not restricted by the Fourth Amendment at all. Thus if a dog sniff is not a search, then there are no Fourth Amendment constraints on officers employing them (although this still leaves the question of the length of the detention here).

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Argument preview: Dog sniffs and traffic stops once more to the Fourth Amendment well