Sniffing Out Suspicion
At what point does a traffic stop trigger a Fourth Amendment claim?
Last year, the U.S. Supreme Court addressed the question of whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop in Rodriguez v. United States. The Supreme Court held 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.” Therefore, a seizure justified only by a police-observed traffic violation “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.
Flashback 10 years to 2005 when the Supreme Court held in Illinois v. Caballes that a dog sniff conducted during a lawful traffic stop that reveals no information other than the location of an illegal substance does not violate the Fourth Amendment. So when is it “reasonable” to conduct a dog sniff during a traffic stop, and how should reasonableness be assessed? The following will discuss the constitutionality of a dog sniff conducted during a traffic stop and provide practice tips for defense attorneys and insurance claims professionals tasked with handling these types of claims.
Establishing the Facts
Officer Struble, a K-9 officer, stopped Mr. Rodriguez for driving on a highway shoulder in violation of state law. After Officer Struble performed all actions pertaining to the purpose of the stop, including issuing Mr. Rodriguez a ticket, he asked for permission to walk his dog around the vehicle. Mr. Rodriguez refused, and Officer Struble detained him until a second officer arrived. Officer Struble then proceeded to walk his dog around the vehicle. The dog alerted to the presence of drugs, and a search of the vehicle revealed methamphetamines. Approximately seven to eight minutes elapsed between the time Officer Struble issued the traffic citation to the time that the dog alerted to the presence of the drugs.
Mr. Rodriguez was arrested and later indicted on federal drug charges. He moved to suppress the evidence by arguing that Officer Struble prolonged the traffic stop without reasonable suspicion to conduct the dog sniff. A district court found no reasonable suspicion supporting the extended detention, but determined that prolonging the traffic stop by seven to eight minutes for the dog sniff was only a de minimis intrusion on Mr. Rodriguez’s Fourth Amendment rights and, for that reason, was permissible. The 8th U.S. Circuit Court of Appeals affirmed, agreeing that the seven to eight minute delay was an acceptable deminimis intrusion on Mr. Rodriguez’s personal liberty, but declined to determine whether there was reasonable suspicion for his detention after the ticket was issued.
The Supreme Court granted certiorari to resolve a division among lower courts on the question of “whether police routinely may extend an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” The majority of the Supreme Court believed that the critical question is not whether the dog sniff occurs before or after an officer issues a ticket, but whether conducting the sniff prolongs and adds time to the stop. The majority held that a stop exceeding the time needed to handle the matter for which the stop was made violates the Fourth Amendment’s guarantee against unreasonable seizures. The Supreme Court remanded the case back to the 8th Circuit to address whether reasonable suspicion of criminal activity justified detaining Mr. Rodriguez beyond completion of the traffic investigation that formed the basis of the initial detention. The remand is consistent with the majority’s determination that “[a]n officer...may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to Justice Alito’s suggestion...he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”
A Change in Reasoning
In Rodriguez, the ultimate ruling or reason for remand seemed to turn more on whether there was reasonable suspicion for the dog sniff and not necessarily the timing of the actual dog sniff or whether the additional time of detention was de minimis. This seems to be a change from the Supreme Court’s focus in Caballes. In that case, Mr. Caballes was stopped for speeding. While one trooper was writing the traffic ticket, a second trooper drove to the scene with his K-9 and walked around Mr. Caballes’ vehicle. Therefore, unlike Rodriguez, the traffic stop was not delayed to conduct a dog sniff.
The dog alerted at Mr. Caballes’ trunk, and a search revealed marijuana, which led to his arrest. The U.S. Supreme Court granted certiorari on the narrow question of “[w]hether the Fourth Amendment requires reasonable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” The Supreme Court ruled that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”
Justice Ginsburg, who authored the majority opinion in Rodriguez, dissented in Caballes. Justice Ginsburg believed that it was “hardly dispositive” that the dog sniff did not lengthen the duration of the stop. Instead, Justice Ginsburg believed the principles underlying an investigatory stop as enunciated in Terry v. Ohio should be applied. These principles instruct that any investigation must be “reasonably related in scope to the circumstances that justified the interference in the first place.” Justice Ginsburg then focused on two aspects of “reasonableness” related to dog sniffs and, in doing so, believed that the majority opinion implied that a dog sniff that is reasonable in time is not a seizure, regardless of whether it is reasonable in scope.
Justice Ginsburg believed the majority diminished the Fourth Amendment’s force by abandoning the second Terry inquiry, which focuses on whether the police action was “reasonably related in scope to the circumstances [justifying] the [initial] interference.” After 10 years, Justice Ginsburg’s reasoning in her dissent in Caballes is reflected in the majority opinion, which she authored, in Rodriguez.
What can we take away from these opinions and apply to defending these claims? The opinion in Rodriguez demonstrates that an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but the officer may not do so in a manner that prolongs the stop, absent reasonable suspicion ordinarily demanded to justify detaining an individual. This, however, does not prevent ordinary inquiries incident to the traffic stop, such as checking a driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the vehicle’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code. A dog sniff, unlike these routine checks, will not be considered an ordinary incident of a traffic stop but instead is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.”
Defense attorneys should be mindful of the shift in the Supreme Court’s reasoning when assessing whether a dog sniff is reasonable or not under the Fourth Amendment. One should not only simply focus on the timing of the dog sniff or how long it extended the traffic stop, but also whether there was independent reasonable suspicion to conduct the dog sniff in the first place, regardless of whether it was lawful for the initial seizure for the traffic violation.
Meanwhile, claims professionals should consider efforts to resolve these claims early in an effort to reduce costs and attorney’s fees when they determine that there is no reasonable suspicion for the dog sniff. Claims for violations under the Fourth Amendment due to alleged improper seizure when a dog sniff is conducted are brought under 42 U.S.C. § 1983. In any Section 1983 action, “the court, in its discretion, may allow the prevailing party...a reasonable attorney’s fee as part of the costs.” That is why is it important to assess the merits of these claims early on to avoid reasonable attorney’s fees incurred by plaintiff’s counsels.
Plaintiffs use Section 1983 as leverage to settle because of the threat of recovering attorney’s fees if they prevail at trial. One way to combat this is through an offer of judgment. Rule 68 of the Federal Rules of Civil Procedure permit a defendant to offer judgment to be taken against it in a specified amount.
Rule 68 can be used as a sword and a shield in the defense of Section 1983 claims. As a sword, it is an aggressive step to force the plaintiff to seriously evaluate the value of his case. As a shield, it can be used to protect against exorbitant attorney’s fees and costs. If the plaintiff fails to accept a Rule 68 offer and later obtains a judgment less favorable than the offer, the plaintiff not only must then pay the defendant’s costs incurred from the time of the offer, but also is barred from recovering his own costs from the time of the offer. Offers of judgment should be considered at an early stage in any case in which liability is probable and/or certain.