United States v. Rodriguez

RODRIGUEZ v. UNITED STATES
AFTER REASONABLE SUSPICION AND BEFORE PROBABLE CAUSE

By: John McWilliam
14 October, 2016

Thanks to our living in a car-obsessed and public-transportation-averse society, most of us criminal defense lawyers ply our trade representing people whose charges originated from a traffic stop. We know, in these kinds of cases, that our first issue is whether the policeman had at least reasonable and articulable suspicion of criminal activity to seize our client – weaving within the lane, for example; and we tend to look at our second issue as being the question: did the policeman have probable cause to arrest our client? This paper discusses the case of United States v. Rodriguez, 575 U.S. _____ (2015) and that issue that exists between the reasonable suspicion and probable cause inquiries – in particular, the behavior of the policeman following the stop and before the arrest. I will discuss not only the reasonableness of the length of detention, which is the issue at the heart of the Rodriguez opinion, but also the scope of the individual policeman’s inquiries during the detention, and how Rodriguez, or at least, the language in Rodriguez (which our opponents would probably argue is merely dicta) affects or is affected by other seizures such as checkpoints as well as other issues and points of interest along the way.
This is an essay, not a legal article. I reserve the privilege of writing this essay in the manner that I want to write it and not in accordance with some formula. This non-Bluebook-worthy approach should force lawyers interested in arguing Rodriguez to read Rodriguez.
The initial facts in Rodriguez, a case out of Nebraska, are that shortly after midnight, a policeman named Struble, a K9 officer with his dog in the police car, stopped an SUV after Struble observed the SUV veer onto the shoulder of the highway for one to two seconds then jerk back onto the road. The basis of the stop was a violation of a Nebraska statute that prohibits driving on highway shoulders. Rodriguez cites the specific Nebraska statute: I wonder what the legislative intent behind its no-driving-on-shoulders law is and what the Nebraska case-law says about one to two seconds of driving on shoulders. In North Carolina, the basis for the stop would probably have been the ever-popular “fail to maintain lane-control” law. Unlike the Nebraska statute I know what North Carolina’s fail to maintain lane-control statute says and I know where I can find the Reasonable Suspicion case-law. This stop, if it had occurred in North Carolina, would need to be challenged as a stop without the requisite level of reasonable suspicion. Be that as it may, the lawfulness of the stop is not the issue in Rodriguez or the subject of this paper.
Following the traffic stop, Struble encountered Rodriguez, the driver, and Scott Pollman, the only passenger in the car. After gathering Rodriguez’s license, registration and insurance information, Struble asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to so, and, upon the officer’s saying that he was not, Rodriguez chose to wait in his own car. One can’t help but speculate that this decision of Rodriguez’s played a part in raising the cop’s suspicion of him or, at least irritating him. No mention of this decision of Rodriguez’s appears in the opinion or, apparently, any of the previous decisions by the lower courts. After the policeman returned to Rodriguez’s car, having run a records check on Rodriguez, he asked Pollman – the passenger – for his license, and questioned him about where he and Rodriguez were coming from and going to. Pollman told the policeman that they were returning home from having looked at a car that was for sale. The policeman ran a records check on Pollman and called for a check-in officer. Struble then began writing a warning ticket for Rodriguez for driving on the shoulder of the road. Interestingly, there is nothing further in the opinion regarding the calling of the check-in officer; whether there was any delay of the detention caused by the calling for the check-in officer; whether, if there was a delay, it was reasonable; and how long would the delay have to be before it became unreasonable.
After returning all the documents to Rodriguez and Pollman as well as issuing and explaining the warning ticket to Rodriguez, Struble asked Rodriguez for permission to walk his dog around Rodriguez’s car, to which Rodriguez said no. Again, one has to wonder what effect this denial of the permission had on Struble; I think it’s fair to say that policemen don’t like being told, “no.” At this point, of the encounter, it was about 12:27 or 12:28. At the hearing, Struble testified that at the point that he returned the documents and explained the warning ticket, he [had] “got all the reasons for the stop out of the way,…[taken] care of all the business.” Nevertheless, Struble did not consider Rodriguez “ free to leave.” In the spirit of commenting on this case as I go along, I would like to have questioned Struble about why Rodriguez wasn’t free to leave. In many ways, the “free-to-leave” issue is central to the Rodriguez analysis: Detaining a person after he should be free to leave is unreasonable under the Fourth Amendment is a proposition for which Rodriguez stands. In examining the facts of a case, defense lawyers must determine the moment when the defendant should have been free to leave, and, under Rodriguez, challenge everything – everything – that comes after that moment – the moment that we believe our client should have been free to leave. And obviously, just like the “when was he seized” question, we want the answer to the “when was he free to leave” question to be: as early as possible in the encounter. A person isn’t “free to leave” when the policeman says he is; a person is free to leave when the Constitution says he is. This is a practice-point we should take away from Rodriguez.
Here is where things get interesting in the facts of Rodriguez. Although the justification for the traffic stop was “out of the way” Rodriguez declined Struble’s request to walk his dog around the vehicle (another denial of the policeman’s request). Struble then told Rodriguez to turn his car off, get out and stand in front of the police car to wait for the second officer. Rodriguez complied with this order. A few minutes later, the second officer arrived (was this delay reasonable? The Court doesn’t tell us). Struble walked his dog around Rodriguez’s car; the dog alerted on the second pass around the car. A subsequent search of the car unearthed a large bag of methamphetamine. The amount of time that elapsed from when Struble issued the warning ticket until the dog’s indicating the presence of drugs was seven or eight minutes (including the “few minutes” it took for the check-in officer to arrive, presumably.
Procedurally, this case is interesting in that the (federal) Magistrate Judge found that there was no probable cause to search the car independent of the dog-alert, and that there was no reasonable suspicion to support the detention following Struble’s issuing the warning ticket. However, the Magistrate Judge concluded that under Eighth Circuit precedent, the seven or eight minute detention during which the dog-sniff occurred was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights. The Magistrate Judge found the detention permissible and denied Rodriguez’s motion to suppress. Whether the judge made the right decision under the Eighth Circuit’s precedent isn’t the subject here, but what is interesting is that he not only, correctly, found there to be no justification – reasonable suspicion – for the continued detention, he also found there to be no probable cause to search the car “independent of the dog alert.” “Officer Struble had nothing other than a rather large hunch.” was the Judge’s characterization of the reason for the search. This jumps out at me as an inconsistency that led to the federal judge’s conclusion: If the detention was permissible under the de minimis theory but the search during that de minimis intrusion was without probable cause, shouldn’t the motion to suppress have been allowed anyway? The length of the detention was permissible but the search within that detention was lacking probable cause. Or, does the Rodriguez opinion misrepresent, or at least fail to elaborate on, the Magistrate Judge’s finding of no probable cause “independent of the dog alert” as actually being a finding of probable cause because of the dog alert. What do we make of the Rodriguez opinion’s quoting the Magistate Judge’s “rather large hunch” comment but then never addressing the constitutionality of the search itself? Is a dog-alert a “rather large hunch”? And if so, is a “rather large hunch” probable cause to search? I suspect the Supreme Court left these questions unanswered because it found the delayed detention to be unreasonable under the Fourth Amendment, and, therefore didn’t need to address the search that occurred during that unconstitutional delayed detention.
The federal District Court, affirming the lower Court, and specifically adopting the Magistrate Judge’s factual findings and conclusions of law, noted that in the Eighth Circuit “dog sniffs that occur within a short period of time following the completion of the traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.” The District Court agreed with the lower court that the “7 to 10 minutes” added to the stop by the dog sniff “was not of constitutional significance.” This Court, too, failed to comment on the Magistrate Judge’s “rather large hunch” and finding of no probable cause “independent of the dog-sniff” language.
The Eighth Circuit affirmed but declined to reach the question whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written warning because it found that the “seven or eight minute delay” was an acceptable de minimis intrusion on Rodriguez’s personal liberty. Like the Supreme Court above and the Disrtrict Court below, the Eighth Circuit Court left alone the probable cause/”rather large hunch” issue raised by the Magistrate Judge. It appears that dogs behaving in a manner that we’re all used to seeing and which many of us know how to induce – barking – will continue to be a basis for searching our persons, houses, papers and effects.
The United States Supreme Court granted certiorari and framed the issue thus: “Whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” The Court identifies the division among the lower courts on this question by comparing cases from two different jurisdictions. The first concluded that “postcompletion delay of well under ten minutes was permissible”; the second concluded that “without additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.” The Supreme Court went the way of the second conclusion. This paper’s intentional exclusion of these two cases’ names or citations means that the lawyer who comes a cross a possible Rodriguez violation will have to read the case and find them for himself.
In its opinion, the Supreme Court likens a traffic stop to a traditional “Terry Stop,” which is well-established law, but the Court goes further and, interestingly in light of Justice Thomas’s dissent – relying on the same case to reach an opposite conclusion – refers to the US Supreme Court’s earlier Caballes opinion that the “tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission” – to address the traffic violation that warranted the stop and attend to related safety concerns.” Citing two other US Supreme Court decisions, United States v. Sharpe and the more well-known Florida v Royer, the Court instructs that “The scope of the detention must be carefully tailored to its underlying justification.” This is interesting language to me in the context of challenging checkpoints; a checkpoint must fall within one of only four permissible primary programmatic purposes – license checks, DWI’s, illegal alien checkpoints and Lidster-type checkpoints. Once the State has staked itself out on what the putative purpose for a particular checkpoint is, it is incumbent on the defense lawyer to hold the State to the Rodriguez mandate that the “scope of the detention … be carefully tailored to its underlying justification” especially because checkpoints are presumptively unconstitutional, pursuant to City of Indianapolis v. Edmond, and therefore subject to even greater and a more jaundiced scrutiny. The Rodriguez Court goes on to instruct that (in Rodriguez) “because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate that purpose,’” quoting Royer. And “authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” Again in the context of checkpoints, not just traditional traffic seizures, if the State claims a checkpoint to be one of the four permitted types of checkpoint, the defense lawyer must attack anything and everything that the policeman does that is not tied to the purpose of the checkpoint.
The Rodriguez Court, somewhat unhelpfully and probably unwittingly, acknowledges that its prior decisions in Caballes and Arizona v Johnson both “tolerated certain unrelated investigations that did not lengthen the roadside detention” and, in Royer, that the scope of the detention be carefully tailored to its underlying justification. Which raises the question: which is it – the length of the detention or the scope of the detention? The remainder of the Rodriguez opinion focuses on length rather than scope, suggesting that the Rodriguez Court’s Fourth Amendment concern is the length rather than the scope. But when the defendant’s argument is that the policeman’s inquiries exceeded the scope of the detention but not the reasonable length of what the detention would have been, the defense cannot abandon the Royer-as-adopted-by-Rodriguez rule that if the scope of the detention is not carefully tailored to its underlying justification – if the policeman exceeded the scope – the evidence unearthed as a result of the exceeded scope must be suppressed. The Rodriguez rule, if subject to two interpretations which it seems to be – scope versus length – must be construed strictly in favor of the defendant; this too is well-established law.
Similarly, Rodriguez’s reliance on Royer’s “tasks tied to the traffic infraction” language empowers the argument that a policeman’s inquiries that are beyond the scope of the purpose of the seizure (in the absence of some new reasonable suspicion or probable cause that presented itself, obviously) are impermissible, and that evidence acquired as a result of those inquiries should be suppressed.. In the “scope versus length” debate, the State will argue that Rodriguez is a case that is limited to analyzing only the length of the detention as borne out by the fact that the opinion focuses on length rather than scope. The reason, the defense should insist, that the Rodriguez opinion lays its emphasis on length rather than scope is because the issue raised by the facts in Rodriguez deals with the length of the detention rather than the scope. The Court’s de-emphasis on scope rather then length is not the Court’s way of distinguishing the rule in the scope versus length debate but rather, its reliance on Royer should be interpreted as an instruction that the same analysis and rule will be applied when the issue is whether the scope of the detention exceeds the “mission.”
The Rodriguez Court, in its discussion of the length of the detention problem posed by the facts in Rodriguez, again, seems to muddy the water by stating that “the Fourth Amendment tolerate[s] certain unrelated investigations that [do] not lengthen the roadside detention,” and “the seizure remains lawful only so long as unrelated inquiries do not measurably extend the duration of the stop.” (From a practitioner’s point of view, it’s worth investigating the measurability of of the unrelated inquiries and arguing that the inquiries are in fact measurable and therefore unconstitutional.) The Court, in its apparent abandonment of its previous “scope” analysis, goes on to tell us that “an officer … may conduct certain unrelated checks during an otherwise lawful traffic stop, but … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”
But the Court then launches into a discussion that seems to revert back to its earlier narrower “scope” admonition: “Beyond determining whether to issue a traffic ticket, an officer’s mission (back to that “mission” word) includes ‘ordinary inquiries incident to [the traffic] stop’” (quoting Caballes). The Court then lists the inquiries that are “typically” involved: checking driver’s licenses, warrants (more on warrants later), registration and insurance. These checks, the Court notes, “serve the same objective as enforcement of the traffic code; ensuring that vehicles on the road are operated safely and responsibly.” This conflicting language in the Rodriguez opinion, again, raises the question: Which is it: the length of the detention or the scope? The answer must be, imperatively: both. Rodriguez stands for the proposition that a policeman may neither stray from the scope of the mission nor measurably extend the detention beyond the length necessary to complete the mission.
Helpfully, the Court then addresses the particular facts in Rodriguez – the dog sniff. And, citing the checkpoint case of City of Indianapolis v. Edmond, notes that a dog-sniff , “by contrast” (to the ordinary inquiries incident to the traffic stop) is a measure aimed at “detecting evidence of ordinary criminal wrong-doing.” And we know, from City of Indianapolis and all the checkpoint cases, that if the primary purpose of a checkpoint is indistinguishable from a general crime-control checkpoint, that checkpoint will be ruled unconstitutional because it exceeded the scope of the stated purpose of the checkpoint. The analysis is identical, then, in determining the scope or length of a a routine traffic stop under Rodriguez. “Lacking the same close connection to roadway safety,” the Rodriguez Court explains, “a dog sniff is not fairly characterized as part of the officer’s traffic mission.” Rodriguez is not specific to dog sniffs; it is instructive in that it forbids a policeman from straying from the “traffic mission” in his inquiries following the otherwise lawful stop (absent further reasonable suspicion that naturally presents itself).
The Court then addresses the two intellectually dishonest dissents (by Justices Alito and Thomas) and quickly dispatches their arguments relating to officer-safety and the different ways an experienced cop might handle a situation versus a how a “rookie” might. The one valid point in either dissent is Justice Thomas’s discussion on warrant-checks of people lawfully stopped; “warrant checks, arguably, should fare no better.” I couldn’t agree with him more: warrant checks are not incident to the traffic stop and should be disallowed.
The North Carolina Courts have dealt with the Rodriguez issue already, and reached the same conclusion. See State v. Falana (a dog sniff case form 1998) and State v Pearson (crucially a non-dog sniff case from 1998).
What is important to take away from Rodriguez is that the admonition is not just related to dog sniff cases but all detentions. Rodriguez, similarly, is not a case that stands only for the proposition that an otherwise lawful seizure cannot be extended in length beyond what the reasonable length of the seizure should have been to compete the mission of the seizure, but it also stands for the proposition that the police inquiries during the seizure cannot exceed the scope of the mission whether those inquiries lengthened the seizure or not. Obviously, in making the “exceeding the scope” argument, defense lawyers will want to ague that the inquiries beyond the scope actually lengthened the detention – how could they not? But even if there was no lengthening of the detention, the policeman’s exceeding the scope of the mission was impermissible, and evidence obtained therefrom must be suppressed.

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