The United States Supreme Court decided Rodriguez v. United States, __ U.S. __, 135 S. Ct. 1609 (2015) and 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 facts of the case are that just after midnight, a Nebraska law enforcement officer saw a vehicle veer onto the shoulder of a state highway, then pull back onto the road. Nebraska law prohibits driving on the shoulder, so the officer stopped the vehicle. The driver provided the officer with his license, registration, and proof of insurance. The passenger provided his license as well. License and warrant checks on both men apparently came back clean, and the officer issued a warning ticket to the driver. The officer suspected that the driver might be involved in drug activity, so he asked the driver for permission to run the officer’s drug dog around the vehicle. The driver said no. The officer then called for backup and detained the driver for a few minutes until another officer arrived. At that point, the officer walked his dog around the vehicle twice and the dog alerted. The alert led to a search and the discovery of methamphetamine. The total delay to allow the drug dog to sniff the car was seven or eight minutes.
Justice Ginsburg wrote for herself and five other Justices. She concluded that a stop may not be extended beyond the time necessary to complete the “mission” of the stop, which is “to address the traffic violation that warranted the stop . . . and attend to related safety concerns.” That is, “[a]uthority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” A dog sniff is not such a task “tied to the traffic infraction,” as it is “aimed at detecting ordinary criminal wrongdoing.” Therefore, if such a sniff prologs a stop at all, it violates the Fourth Amendment. There is no exception for “de minimis” delays.
The majority stated that an officer may check for outstanding arrest warrants for the driver during a traffic stop. That is apparently a common law enforcement practice. But, as noted by the dissent, it does not align very well with the majority’s reasoning that a stop should stay focused on its “mission” rather than general crime detection. The majority’s justification for permitting warrant checks is that they add to roadway safety by allowing an officer to determine whether a driver is wanted for other traffic offenses. That strikes me as a pretty weak argument – how many outstanding warrants are there for speeding? Furthermore, the principal authority the majority cites for that idea is Professor LaFave’s treatise, but Professor LaFave himself doubts whether warrant checks should be permitted. Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843 (2004) (stating that “a rather compelling argument” can be made for abolishing warrant checks as insufficiently directed at the purpose of the stop, though noting that “there are at least some rational arguments” to the contrary).
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).
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”).
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.