Is a dog sniff a search after all?
Two weeks ago, the Supreme Court struck down a search of a car based on a drug sniff in Rodriguez v. United States. That's good news for the defense bar and for those who've come to worry that the War on Drugs has rendered the Fourth Amendment pretty much of a dead letter. As always, though, the devil's in the details: the opinion is narrower than we might have liked, but in several respects it's broader, too.
God, I'm starting to sound like Yoda. Let's take a look.
First, the facts. A cop pulled Rodriguez over for drifting onto the shoulder of the road for a couple of seconds. The officer got Rodriguez's license and registration, checked it, came back and asked the passenger a few questions, then returned to the cruiser and did a record check on him as well. While doing so, he called for a second officer. When he returned to the car, he gave Rodriguez a written warning, then asked for permission to walk his dog, which had been in the cruiser all this time, around Rodriguez's car. Rodriguez refused, so the cop waited another eight minutes for the other officer to arrive, then used the dog. And you know how that turned out.
This happened in Nebraska, and the 8th Circuit has a rule that a de minimis delay in a traffic stop, so as to allow a dog search, doesn't violate the 4th Amendment. That's an easy one to dispose of: the Supreme Court has previously held that "authority for the seizure ends when tasks tied to the traffic infraction are -- or reasonably should have been -- completed," and here the officer admitted they were, before the drug sniff occurred. The Court reaffirms that principle, reverses, The End.
Not quite. While Rodriguez can certainly be read as a simple reiteration of the rule that a stop cannot be prolonged beyond the time necessary to issue the ticket, it raises the question of whether the Court is backtracking from its 1983 decision in United States v. Place, where it held that a dog sniff was not a "search" within the meaning of the 4th Amendment. That was based on the Court's prevailing theory on search and seizure law articulated in Katz v. United States, that the focus was on the defendant's "reasonable expectation of privacy": since no one had a reasonable expectation of privacy in the outside of his car on a public street, having a dog sniff around it was no different than having a person (including a cop) walk up to it: the 4th Amendment didn't come into play.
But the Court's developed another method of analyzing those issues, actually returning to the "property interest" test that was utilized prior to Katz. They used that to strike down the attachment of GPS units to vehicles in United States v. Jones, and just two years ago to hold that taking a dog up on a porch of a house to sniff at the door was an unconstitutional search in Jardines v. Florida. The Rodriguez opinion describes a dog sniff as "a measure aimed at detecting evidence." How is that not a search?
In fact, the Court clearly cabins off dog sniffs from the regular routine of a traffic stop. The Court has held that the officer's mission there is not simply writing the ticket; he can also inspect the license and registration, and determine whether there are outstanding warrants on the driver or passengers. But those are matters of roadside safety, and "a dog sniff is not fairly characterized as part of the officer's traffic mission."
Does that mean the officer needs some reasonable suspicion to conduct a dog sniff even if the stop isn't delayed to do so? The votes probably aren't there for that now, but if a dog sniff is "not part of the traffic mission," and it's "a measure aimed at detecting evidence," that's at least an argument which can be made.
That brings up the downside to Rodriguez. It's not a clear win. The law is also clear that a stop can be prolonged past the period necessary to write the ticket if the officer develops reasonable suspicion that some criminal activity is afoot. The 8th Circuit hadn't addressed that issue, so the Court remands it back to the 8th for them to do so. One thing Rodriguez shows is the benefit of having good facts in an appeal: the officer essentially acknowledged that he had no basis for keeping Rodriguez there after giving him the ticket. Given the elastic and amorphous nature of "reasonable suspicion," one might anticipate that, in the future, police officers won't be as frank as the one in this case was about conceding he didn't have any.