Earlier this week, the U.S. Supreme Court issued an opinion in the case of Rodriguez v. United States and held that, without reasonable suspicion, a police officer may not extend a traffic stop for crime-related purposes beyond what is reasonably required to complete the traffic-related purposes of the stop, even for a de minimis amount of time. Prior to this decision, states were split on the issue of whether a traffic stop could be extended for a de minimis delay to conduct a dog sniff. Some states (including the 8th Circuit, where Rodriguez originated, and North Carolina) permitted a de minimis delay of anywhere up to eight minutes to conduct a dog sniff, while others did not allow any delay at all, no matter how short. With the issuance of the Rodriguez decision, the North Carolina cases permitting a de minimis delay to conduct a dog sniff have been effectively overruled.
Let’s take a look back at how the North Carolina case law developed. One of the earlier cases addressing the issue was the North Carolina Court of Appeals case, State v. Falana (1998). In Falana, the officer stopped the defendant because he had been weaving. The officer determined that the defendant was not impaired and issued him a warning ticket and returned his papers. After returning the papers, the officer then conducted a dog-sniff of the defendant’s car, which resulted in the officer finding cocaine in the car. The court of appeals determined that the officer lacked reasonable suspicion to detain the defendant after issuing the warning ticket and returning his papers.
After Falana, several other North Carolina cases followed that reasoning. However, following the 2005 U.S. Supreme Court case Illinois v. Caballes, North Carolina courts changed their rationale. In Caballes, the defendant was stopped for speeding. The trooper who stopped the defendant radioed to dispatch to report the stop, and a drug taskforce officer heard the call and went to the scene with his drug dog. While the trooper wrote the speeding ticket, the drug taskforce officer walked around the car with the dog. The dog alerted, and marijuana was found in the trunk. According to the Court, “[t]he entire incident lasted less than 10 minutes.” The Court held that a dog sniff conducted during a lawful traffic stop is constitutional and does not “implicate legitimate privacy interests.”
The first North Carolina dog sniff case after Caballes was State v. Branch, which came from the court of appeals in 2006. In Branch, the defendant was stopped at a license checkpoint. While one officer was obtaining information about the defendant over the radio, another officer conducted a dog sniff of the defendant’s car. When the court of appeals initially heard the case in 2004, it held that reasonable suspicion was required to conduct the dog sniff. The U.S. Supreme Court vacated this initial decision of Branch so that the court of appeals could reconsider the case in light of Caballes. In the 2006 opinion, the court held that once the traffic stop was established as lawful, the officer did not require additional reasonable suspicion to conduct the dog sniff. [Note that the issuance of Rodriguez would not necessarily change the reasoning in the 2006 Branch decision since that case does discuss a delayed detention.]
The next year, the court of appeals cited both Branch and Caballes in the case State v. Brimmer. In Brimmer, the drug dog arrived before the defendant received his warning ticket. After the officer gave the defendant his warning ticket and papers back, the drug dog sniffed the defendant’s car, which resulted in the discovery of marijuana. The dog sniff took between one-and-a-half and two minutes. The defendant did not contest the initial stop but argued that the police officer lacked reasonable suspicion to conduct the dog sniff.
Citing Branch and Caballes, the court of appeals stated that the officer did not need reasonable suspicion to conduct the dog sniff because the traffic stop was lawful. The defendant argued that because the dog sniff prolonged the traffic stop, the officer was required to have reasonable suspicion. The court of appeals applied the “de minimis” rule used in other jurisdictions and held that “if the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”
The 2012 case State v. Sellars was another dog sniff case, and the court of appeals discussed both Falana and Brimmer. In Sellars, the defendant was stopped for twice weaving out of his lane. The detective could tell immediately that the defendant was not impaired, but he noticed that the defendant’s heart was beating fast and his hand was shaking when he handed the detective his license. However, the defendant did not display “extreme nervousness.” When the detective entered the defendant’s information into the computer, an “alert” appeared which identified the defendant as a “drug dealer” and “known felon.” After seeing this “alert,” the detective decided to have the dog conduct an open-air sniff of the car, which resulted in the the discovery of cocaine in the car. From the point at which the detective issued a warning ticket to the defendant and returned his license to the point at which the dog alerted as to the presence of narcotics in the defendant’s vehicle was four minutes and thirty-seven seconds.
The court held that difference between the reasoning in Falana and Brimmer was due to the fact that Caballes and other federal cases interpreting Caballes were not in existence when Falana was decided. However, Brimmer appropriately “followed and adopted the de minimis approach” that the federal courts used in the cases based on Caballes.
With the Rodriguez decision earlier this week, both Brimmer and Sellars are effectively overruled. Now, instead of the issue being whether the delay was de minimis, the issue will turn on whether a delay occurred at all, not just for dog sniffs, but for any additional questioning unrelated to the purpose of the stop.
If you have been arrested for DWI and subjected to a delayed traffic stop, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.