Thursday, April 23, 2015

What Should Have Been Obvious

The seven- or eight-minute interregnum between issuing a traffic citation and a K-9 alert violates the Fourth Amendment, absent reasonable suspicion to justify the continued detention. The holding of Rodriguez v. US seems obvious. Still, a surprising result, given the law's general trajectory toward the idea that you expressly waive your Fourth Amendment privileges when you ride in a car. Or maybe we are still on that road, as Rodriguez hasn't really won yet -- the case was remanded to determine whether there was reasonable suspicion to continue the detention for the dog sniff.

Justice Ginsberg wrote for the six-justice majority. "An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to Justice Alito’s suggestion, . . . . he may not do so in away that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." There is some unpacking to be done here -- "certain unrelated checks" can go many directions. Justice Ginsburg, in again rebuffing Alito's  cynicism, poses, "The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice Alito supposes, but whether conducting the sniff prolongs—i.e., adds time to—the stop."

Justices Kennedy, Thomas, and Alito each wrote dissents. They pointed out how unworkable and inconsistent the results of this opinion will be; Thomas even pointed out that the ruling is "irreconcilable with . . . a number of common police practices." Because that is how we define the Fourth Amendment, right? He posits that police will be trained to work more efficiently to counteract this ruling. Again, stating the obvious.

Remember Place? That was the decision that said a dog sniff was not a search (really). It appears that the Court may be pacing back from Place, as noted by SCOTUSblog. The Rodriguez Court describes a dog sniff as a "a measure aimed at detecting evidence of ordinary criminal wrongdoing.” Again, stating the obvious. That sounds like a search.


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