Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Dog sniffs - again!

The cop pulls you over for speeding.  He gets your license and registration, checks you for warrants, and gives you the ticket.  The whole thing takes ten minutes.  Just as he's giving you the ticket, another cruiser pulls up, with a drug dog.  Man's so-not-best-friend walks around the car, which takes about two minutes.  Have you been unreasonably detained?

Same scenario, except the cop holds up giving you the ticket for eight minutes, during which time the drug dog arrives.  Same question.

Same scenario, except the cop asks you all sorts of questions -- where are you coming from, where are you going to, you wouldn't know anything about the burglaries that have been happening around here, would you?  It takes twenty minutes to ask you this and get your driver's license information, and just before the officer gives you the ticket, the drug dog arrives.  Same question.

That's the question the Supreme Court has to answer in Rodriguez v. US.  From the looks and sounds of the oral argument last week, it may already have.

Rodriguez's lawyer was up first, and was immediately peppered with questions about what exactly constitutes a traffic stop.  The lawyer quickly dug himself into a hole, telling the justices that the formal rule he was proposing was that once the cop gave the driver a ticket, the traffic stop was over.  "You can't possible mean that," said Scalia, and questioning by Alito and Ginsburg provided the reason for Scalia's astonishment:  the lawyer's proposal would allow the officer to sequence the events so that he did everything he wanted to -- dog sniff, whatever -- before handing over the ticket.  As Alito put it, only the "uninformed and incompetent" officers wouldn't do that.

But if Rodriguez's attorney had problems defining a rule, the assistant solicitor general ran into the problem of arguing against the rule Breyer posed: 

If you're going to do a stop, you can't reasonably extend or pass the time it takes to deal with a ticket, it cannot be prolonged more than the time reasonably required to complete the mission, which happens to be giving a traffic ticket.  Or we could say it cannot last longer than is necessary to effectuate the purpose of the stop.

The problem for the assistant SG was that, as Breyer noted, this was pretty much the precise rule that the Court had already laid down in two prior dog sniff cases back in the 80's, Illinois v. Caballes and US v. Place.  And it's one that the courts have been consistently applying.

In fact, it's a little surprising that the case made it to the Supreme Court.  Rodriguez and his passenger, Pollman, had been stopped for drifting onto the shoulder of the road.  Rodriguez's car had an "overwhelming" odor of air freshener, and the officer found Pollman was unusually nervous, especially when he was questioned.  There's ample case law that a police officer can prolong the stop if events occurring after the stop create reasonable suspicion that something more is afoot.  The government relied on that in Rodriguez in its brief to the Supreme Court, but that argument seems like a loser, given what happened in the trial court:  the judge found that there was no reasonable suspicion, but upheld the search anyway in reliance on prior 8th Circuit decisions which had held that a de minimis delay didn't raise any 4th Amendment problems.  The 8th Circuit affirmed on that basis, so that would seem to preclude further examination of whether there was reasonable suspicion to prolong the stop.  (The 8th Circuit's concept of de minimis appears to be quite elastic:  the delay in Rodriguez was eight minutes.)

That actually is the question before the Court in Rodriguez:  how long can the cops delay a stop in order to bring a dog to the scene?   The result may have been foreshadowed by Roberts' response to the government's argument that the dog sniff takes only two minutes, "It's only a violation of the Fourth Amendment for two minutes, right?"


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses