Usually my legal and political writings center on the wrongs of government … and rightly so. My assessment of court rulings, of the Supreme Court in particular, are often negative: The Affordable Care [SIC] Act; the end of the Fourth Amendment; etc.
Yesterday, however, a gleam of sunlight emanated from the High Court.
From coast to coast the police are profiling drivers in an attempt to find any reason to arrest otherwise free citizens in the ongoing War on Freedom. A simply traffic stop, for something as innocuous as driving on the shoulder of the road, is used to extend the parameters of the stop to facilitate a deeper investigation. This investigation is aimed at discovering illegal drugs, guns, or cash. The initial routine stop is a pretext for a subsequent felony search, in the absence of probable cause to suspect any felony has been committed. In plain words, the stop is a fishing expedition.
In Rodriguez vs. United States, 575 U.S. __, Slip Opinion No. 13–9972 (April 21, 2015), the Court declared these after-the-fact exploratory searches illegal.
Denny Rodriguez was stopped by a Nebraska law enforcement officer for temporarily driving his SUV on the shoulder of a road. The officer checked Rodriguez’s license and issued a warning regarding his road departure. Things then got out of hand and out of Constitutional bounds:
Officer Struble, a K–9 officer, stopped petitioner Rodriguez for driving
on a highway shoulder, a violation of Nebraska law. After Struble attended
to everything relating to the stop, including, inter alia, checking
the driver’s licenses of Rodriguez and his passenger and issuing a
warning for the traffic offense, he asked Rodriguez for permission to
walk his dog around the vehicle. When Rodriguez refused, Struble
detained him until a second officer arrived. Struble then retrieved
his dog, who alerted to the presence of drugs in the vehicle. The ensuing
search revealed methamphetamine. Seven or eight minutes
elapsed from the time Struble issued the written warning until the
Rodriguez was indicted on federal drug charges. He moved to suppress
the evidence seized from the vehicle on the ground, among others,
that Struble had prolonged the traffic stop without reasonable
suspicion in order to conduct the dog sniff. The Magistrate Judge
recommended denial of the motion. He found no reasonable suspicion
supporting detention once Struble issued the written warning. Under
Eighth Circuit precedent, however, he concluded that prolonging
the stop by “seven to eight minutes” for the dog sniff was only a de
minimis intrusion on Rodriguez’s Fourth Amendment rights and was
for that reason permissible. The District Court then denied the motion
to suppress. Rodriguez entered a conditional guilty plea and was
sentenced to five years in prison. The Eighth Circuit affirmed. Noting
that the seven or eight minute delay was an acceptable “de minimis
intrusion on Rodriguez’s personal liberty,” the court declined to
reach the question whether Struble had reasonable suspicion to continue
Rodriguez’s detention after issuing the written warning.
Courts have, for eons it seems, held “de minimis” or short deprivations of liberty acceptable in the War on Freedom. I and a minority of libertarian legal scholars hold that any deprivation without cause (and the War itself) is illegal. In an amazing turn of events the Court has agreed – in part.
“In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of
unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez, Slip Op. at 1.
I do not agree with Caballes but I am more than willing to take what the Court offers with Rodriguez:
“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.” Id.
“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called Terry
stop . . . than to a formal arrest.’” Id, at 5. This is true so long as the stop is for a violation of a valid law (few and far between).
However, “[t]he scope of the detention must be carefully tailored to its underlying justification.” Id. Such justification goes only with the underlying traffic stop. “A dog sniff, by contrast, is a measure aimed at detecting evidence of ordinary [non-traffic related] criminal wrongdoing.” Id, at 6.
The presence of overt indications of attendant criminal activity – the smell of marijuana, contraband plainly visible to an officer, etc. – may give rise to a further search, investigation or detention. Concerns for “officer safety,” as nebulous a concept as may be imagined, may also justify a stop beyond what would ordinarily be necessary. Absent these factors further detention is untenable. Id, at 9.
Thus, the next time you are stopped for a simply traffic violation and you receive either a warning or a ticket, you are free to go at the conclusion of the incident. You may deny an officer’s request for additional harassment citing Rodriguez. Mind you, the police are as likely to comply with this ruling as they currently comply with the Constitution itself.
(Nothing to worry about. Google.)
Should you be foolish to argue the old “ain’t doing nothing wrong, ain’t got nothing to worry about,” then, please, don’t be troubled when you find yourself surrounded one night by gun-wielding officers with attack dogs. Even if trouble arises, and you live through it, maybe The Nine will eventually smile on you. Then I can happily write here about your case.