Time Spent Waiting on K-9 Put to High Court

(CN) - The Supreme Court on Wednesday debated whether prolonging a traffic stop to let police conduct a K-9 dog sniff violates the driver's rights.

Officer Morgan Struble and his K-9 partner Floyd pulled Dennys Rodriguez over on a Nebraska highway just after midnight on March 27, 2012.

Rodriguez apparently attracted the officer's attention when his car drifted onto the shoulder of the roadway and then jerked back into the lane.

Struble said Rodriguez would not make eye contact while explaining that he had swerved to avoid a pothole.

After Struble completed a records check on Rodriguez and his passenger, and issued Rodriguez a written warning, the driver refused to consent to Struble walking Floyd around the car.

After a deputy sheriff arrived, Struble walked Floyd around the car. The dog signaled that the car contained drugs, and the officers uncovered a large bag of methamphetamine.

Though Rodriguez claimed that the dog sniff had unreasonably prolonged the stop without reasonable suspicion, in violation of his Fourth Amendment rights, a federal judge in Omaha refused to suppress the evidence, and the 8th Circuit affirmed.

Before the Supreme Court this morning, public defender Shannon O'Connor told the court, "the specific question in this case is whether Officer Struble was entitled to piggyback an already completed traffic offense with probable cause onto an investigation of Mr. Rodriguez involving nothing more than a hunch."

The attorney acknowledged that it would be permissible for a police dog to sniff the car so long as the sniff is done before the policeman writes the driver a traffic ticket - not after.

Justice Samuel Alito responded, "If we hold that it's okay to have a dog sniff so long as it's before the ticket is issued, then every police officer other than those who are uninformed or incompetent will delay the handing over of the ticket until the dog sniff is completed. So what does that accomplish?"

O'Conner stumbled over this hypothetical.

Chief Justice John Roberts clarified, "The officer says, 'I need to think about this for a while. I'm going to go back and I'm going to ponder how long it took you.' 'I'm going to think about other tickets I've given in the past, and, you know, the dogs are going to be here in minutes.' 'I think I need about 10 minutes to think about it'

"Is that okay ... since he has not [yet] written a ticket? He waits, you know, until he's thought about it for a while to write the ticket."

O'Conner backpedaled. He said that the formal end of the traffic stop should not depend on the moment the policeman physically hands the traffic ticket to the driver, but when the mission of the traffic stop has been completed.

"In your example, Mr. Chief Justice, if he's pondering, then he's not being diligent," the attorney said.

Justice Anthony Scalia spoke up: "Gee, we ponder all the time, and we think we're being diligent," provoking laughter in the court.

O'Conner was also unable to explain why running a driver's registration or checking for warrants is a permissible extension of a traffic stop, but a dog sniff is not.

Ginger Anders argued on behalf of the state, and told the justices that "a stop is reasonable, even if it includes a dog sniff, if its duration is within the amount of time - the range of reasonably - reasonable, routine traffic stops that don't involve dog sniffs."

Justice Scalia asked, "What's the heartland of routine traffic stops? You have a minute criteria? What is it, half an hour?"

Anders did not have a specific answer for the justice.

"What is it? What is it? I want to know what it is so I can complain when it's longer," Scalia joked.

The attorney persisted that the answer depends on the totality of circumstances in each individual case, but acknowledged that it would be unreasonable to allow a dog to sniff a vehicle it if would unreasonably prolong the stop, because dog sniffing is not a normal part of every traffic stop.

Justice Stephen Breyer asked a hypothetical question. "If the ticket-writing is over and there is nothing else to do and the policeman says, hey, this is over, at that point has it not unreasonably prolonged the stop if the sniff takes place afterwards?"

Justice Scalia interjected, "Big deal, the dog walks around the car for two minutes."

To which Chief Justice Roberts replied, "It's only a violation of the Fourth Amendment for two minutes, right?"

Justice Sonia Sotomayor expressed her concern that Anders' argument essentially proposed creating a "Fourth Amendment entitlement to search for drugs by using dogs whenever anybody's stopped."

Justice Breyer then proposed a bright line rule permitting a dog sniff only during the traffic stop, not afterwards. But Anders said this would place great pressure on the officer to conduct the stop in such a way that would allow time for a K-9 unit to arrive.

Justice Sotomayor said, "You can't hold a person any - any measurable time that would allow to get the dog. And, yes, it has to do with the resources of the police department, but we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper."

Justice Elena Kagan also expressed skepticism, stating that if a 30-40 minute traffic stop was permissible for a broken taillight, "that's 40 minutes of free time for the police officers to investigate any crimes that they want, because they can do it all in the range of what you've decided is kind of the reasonable traffic stop."

On rebuttal, plaintiff's attorney O'Connor sought to remind the justices that their Fourth Amendment analysis should focus on protections for the driver, not the difficulties that may create for officers.

"You don't look at, well, it's only going to be a minute longer if you do it this way. The Fourth Amendment shuts it off when it is done," he said.

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