Last month, the United States Supreme Court granted certiorari in the case Rodriguez v. United States, which came out of the 8th Circuit and involved the de minimis delay in a traffic stop to conduct a dog sniff. In Rodriguez, the 8th Circuit held that extending the stop for 7-8 minutes after the issuance of a warning was a de minimis delay. However, the Supreme Court of Nevada has held that 9 minutes is too long. And some states do not allow any delay, no matter how short, once the purpose of the traffic stop is complete. [For a discussion of where North Carolina law stands on this issue, see this post here.]
The petition in Rodriguez posed the question presented 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.
Why is this such a big deal, we might ask. What’s a few minutes out of a person’s day? Well, shortly after the Supreme Court granted certiorari in Rodriguez, a video out of Iowa made its rounds on the internet which showed just how much can happen in a two-minute extension of a traffic stop. After the officer hands the driver a warning for failing to have his headlights on (at which point the purpose of the traffic stop is complete), the officer appears to be making small talk and asks the driver, “Do you play Frisbee golf?” When the driver answers yes, the officer follows up with a question that is decidedly less small talk and says, “Okay, I need you to answer me a question. Why is it that everybody that plays Frisbee golf smokes weed?” The driver declines to answer the officer’s questions as to whether he himself has smoked weed. The officer then ask the driver how much weed he has in his car, and the driver denies having any.
The officer attempts to turn the encounter into a consensual one by telling the driver, “You understand you’re free to go and everything but you don’t have a problem with me looking through your car?” The driver maintains his composure throughout the stop and refuses to allow the officer to search the car, which the officer attempts to interpret as an admission that there is weed in the car. The officer also attempts to use the driver’s refusal to answer the question as to whether he has ever smoked weed as an admission to smoking in the past.
Although this video is just over two minutes long, the officer makes use of this brief period of time by manipulatively wording his statements and questions to attempt to obtain permission to search the vehicle. Now, not even the police department which employs the officer in the video is trying to justify the behavior of the officer in this video. In fact, the police chief released a statement which stated in part:
The officer engages the driver in a line of questioning that is foolish and not representative of the Ankeny Police Dept.’s training or interactions with the public. This verbal exchange did not meet the level of professionalism expected of Ankeny police officers. Ankeny Police Chief Gary Mikulec respectfully apologizes for the officer`s demeaning statement.
A Drake law professor explained that under the Iowa state constitution, even if the police officer had obtained the driver’s consent to search the vehicle, any evidence obtained likely would not have been admissible. According to the professor, “The Iowa Supreme Court has held that under the Iowa constitution you can’t convert an equipment violation stop into a general search. and any consent that would have been given would have been invalid in any event.”
However, let’s imagine a slightly different scenario where an officer in North Carolina observed a driver weaving and stopped the drive on suspicion of DWI, although the weaving was actually caused by the driver changing the radio station. While speaking with the driver, the officer quickly determines that the driver is not impaired and gives the driver a warning. Before walking away from the driver’s car, however, the officer notices the Frisbee in the backseat of the car and this officer, though not as manipulative as the one in the video, still holds a poor opinion of Frisbee-golf-players, so he has a hunch that the driver has marijuana in the car. The officer then decides to conduct a dog sniff of the car.
In North Carolina, the court of appeals has held that a de minimis delay, even after the traffic stop is complete, is permitted to conduct a dog sniff. In State v. Brimmer (2007), the court 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.
In 2012, the court of appeals again upheld a dog sniff after the traffic stop was completed (and the officer gave the defendant a warning and returned his license) in State v. Sellars. However, in both Brimmer and Sellars, the dog was already on the scene prior to the completion of the traffic stop. In 2014, the court of appeals declined to extend the de minimis analysis of Brimmer and Sellars to “situations when ... a drug dog was not already on the scene.”
If you have been arrested for DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.