The oral arguments in Rodriguez v. United States are scheduled for next Wednesday. Rodriguez is a case from the 8th Circuit involving the extension of a traffic stop for 7-8 minutes to conduct a dog sniff after issuing a warning. The 8th Circuit held that this extension was a de minimis delay. But other states are split on this issue. Some have held that a delay of 9 minutes is too long, and some do not allow any delay at all, no matter how short.
In Rodriguez, the officer pulled over the defendant after he saw him slowly veer onto the shoulder of the road shortly after midnight (as many traffic stops for impaired driving might begin). When the officer asked the defendant why he had veered off the road, he replied that he had been trying to avoid a pothole. The officer also asked the defendant where he had been, and the defendant stated that he and the passenger had been looking at a car for sale in Omaha and were returning to Norfolk (about 2 hours away). While the officer was completing the records check of the defendant and the passenger, he called for a second officer. After checking the records, the officer issued a written warning to the defendant. The warning was written 21 or 22 minutes after the traffic stop was initiated.
The officer who made the traffic stop was a K-9 officer and had his dog with him at the time of the stop. After issuing the warning, the officer asked if the dog could walk around the defendant’s car. The defendant refused, and the officer told the defendant to get out of the car. The defendant complied and stood by the officer’s car. The officer waited until the second officer arrived before conducting the dog sniff out of concern for his safety since there were two people in the defendant’s car. The second officer arrived 5 or 6 minutes after the warning was issued. The dog alerted to the presence of drugs soon thereafter. Seven or 8 minutes passed between the time the warning was issued and when the dog alerted as to the presence of drugs.
The defendant was later convicted of possessing with intent to distribute methamphetamine. The defendant did not challenge the validity of the initial traffic stop but argued that the officer lacked reasonable suspicion to continue his detention. The 8th Circuit held that the 7 or 8 minute delay was reasonable under the circumstances and “constituted a de minimis intrusion on [the defendant’s] personal liberty.” Therefore, it did not consider whether the officer had reasonable suspicion to continue his detention.
The question presented in the Rodriguez petition to the United States Supreme Court is posed as follows:
This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.
The Supreme Court has previously held that a dog sniff conducted during a lawful traffic stop is constitutional and does not “implicate legitimate privacy interests.” (Illinois v. Caballes 2005) In Caballes, however, the traffic stop had not been concluded when the officer conducted the dog sniff, while in Rodriguez, the initial purpose of the traffic stop concluded when the officer gave the defendant the written warning.
In its brief, the State argues that the drug dog was on site and the officer extended the stop to wait for another officer only out of concern for his safety. If two officers had made the stop, the dog sniff would have occurred several minutes earlier, but the State argues that the additional time was deminimis.
The State distinguished the facts of Rodriguez from a previous case that the Court cited as an example of a stop which was unreasonably prolonged by waiting for a canine unit to arrive. In People v. Cox (Ill. 2002), the canine unit did not arrive for “approximately 15 minutes after the initial traffic stop.” In Rodriguez, however, the canine unit was in the car during the entire traffic stop.
The State also argues that the officer had reasonable suspicion to extend the traffic stop beyond the initial purpose. Facts supporting the officer’s reasonable suspicion that the car contained drugs included the strong smell of air freshener, the story about making a long trip late at night to look at a car for sale, and the nervous behavior exhibited by the passenger in the car.
The defendant argues in his brief that the Court should reject the de minimis rule altogether because it ignores the “reasonableness” component of the Fourth Amendment. Instead, the defendant urges the Court to adopt a “bright-line rule” that would would require reasonable suspicion to extend any traffic stop after its initial purpose has been concluded. If an officer wishes to conduct a dog sniff after the conclusion of a traffic stop, the officer must have reasonable suspicion to extend the traffic stop.
The defendant further argues that the officer did not have reasonable suspicion to extend the traffic stop in this instance. Both the magistrate and the trial court in Rodriguez came to this conclusion, and appellate courts owe deference to inferences drawn from the facts and especially to credibility findings. The magistrate found that the officer had only a “hunch” of criminal activity and “[a]n officer’s hunch cannot support a finding of reasonable suspicion.”
Where does North Carolina fall in the de minimis delay issue split? Post-Caballes, the North Carolina Court of Appeals has allowed a de minimis delay of less than five minutes for a dog sniff to be conducted after the completion of a traffic stop. (State v. Sellars 2012) However, in 2014, the North Carolina Court of Appeals refused to apply the de minimis delay rule to a case where the drug dog was not already on the scene before the completion of the initial purpose of the traffic stop. (State v. Cottrell)
It will be interesting to see where the Supreme Court comes out on this issue. Perhaps next week’s oral argument will provide us with some clues. Stay tuned…
If you have been subjected to a delay after a traffic stop for impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.