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?

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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 Rodriguez’s 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 Rodriguez’s 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

Here’s 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).

In two prior cases, Illinois v. Caballes (2005) and United States v. Place (1983), the Court has declared that dog sniffs conducted by law enforcement in public places (an airport and a roadside traffic stop) are “not a search” because (the Court said) they don’t intrude upon a “reasonable expectation of privacy.”  More recently, however, the Court has ruled that using a drug-sniffing dog on a residential front porch (Florida v. Jardines, 2013) is a “search,” regardless of privacy interests.  Meanwhile the Court has ruled more generally that using a GPS locator to monitor cars on public roads (United States v. Jones, 2012) is a “search;” and that employing a “thermal heat imager” from a police car on a public road (Kyllo v. United States, 2001) is a “search” when it detects information about heat usage inside a house.  Although the Caballes decision suggests a constitutional difference between a heat imager and a drug-sniffing dog,” the case involved the sniff of a car in a roadside rather than the sniff of a residence.  Perhaps the relevant constitutional distinction is really between cars and houses?  Wednesday’s argument may – or may not – shed further light on these questions.

The other constitutional aspect of Rodriguez asks what Fourth Amendment rules apply to the detention of cars and their passengers during roadside traffic stops.  Prior to 1968, when Terry v. Ohio was decided, the accepted doctrine was that an officer may not stop a car unless he has “probable cause” — but if an officer does have probable cause to believe a car contains contraband, he may stop and search a car without a warrant, on the theory that its mobility creates an “exigency” and there is not time to seek a warrant.  Terry, however, reduced the level of suspicion necessary under the Fourth Amendment to “stop” (that is, “seize”) a person, ruling that a brief detention to either confirm or allay suspicion is constitutionally acceptable if the officer has articulable “reasonable suspicion” that crime is afoot (a somewhat undefined standard that is more than a hunch but less than probable cause).